Kamin: Legislative Update

Monday, August 20, 2018 | 0

Legislation targeting apportionment to nonindustrial genetic factors, janitorial services, peace officers and breast cancer claims are headlining Gov. Jerry Brown’s last legislative session as he prepares to leave office.

John P. Kamin

The longtime governor is being term-limited out and is heading for greener pastures. And I mean that literally: According to this "60 Minutes" profile a few months ago, Brown intends to retire to his sprawling ranch in Northern California.

After the legislative session ends Aug. 31, Brown has up to 30 days to sign or veto bills that were approved by lawmakers. Unless those bills are “emergency” legislation, they will take effect on Jan. 1, 2019.

Currently the most important bill that is pending is Senate Bill 899, which would prohibit doctors from using race, gender or national origin in determining the percentage of permanent disability caused by factors before and after an industrial injury.

The bill, which is not to be confused with the similarly-titled omnibus reform bill from 2005, seeks to overturn the 3rd District Court of Appeal’s published decision in the City of Jackson v. WCAB.

In that case, the appellate court agreed with a trial judge’s decision that the City of Jackson had proven apportionment of 49% to nonindustrial genetic factors. The Workers’ Compensation Appeals Board ruled that the orthopedic qualified medical evaluator had apportioned to “impermissible immutable factors,” but the Appeals Board was overturned by the 3rd DCA.

The state Supreme Court denied review.

SB 899 flew through the state Senate with many “yeas” and is now likely to come up for a floor vote at the Assembly in the next few weeks. The Assembly version of the bill was recently amended to remove some inflammatory language that called the 3rd DCA’s decision “abhorrent.”

Even though the latest version of the bill will likely have smooth sailing through the Assembly, stormy waters await in the form of Gov. Brown’s desk. You see, Brown has regularly vetoed such measures in the past, explaining that employers cannot be liable for nonindustrial factors.

On the other hand, our lawmakers didn’t get into office by being naive. They have to know Brown’s history of vetoes on this particular topic. Therefore, it’s only reasonable to surmise that the bill’s sponsor, Sen. Dr. Richard Pan, D-Sacramento, is hopeful that Brown may change his tune before riding off into the sunset.

We will be keeping an eye on this one during the next few months.

Other notable bills

Here are some of the other bills we are keeping an eye on. Please remember that these bills are merely proposals until they are approved by the Legislature and signed into law by Gov. Brown.

In 2016, lawmakers passed legislation that required janitorial services to register with the Division of Labor Standards Enforcement. Assembly Bill 2496 would create a rebuttable presumption that workers who perform work on behalf of these janitorial services are employees, and not independent contractors.

So if you work with janitorial service employers who have to register with the DLSE, you will want to definitely watch this bill.

AB 1749 would entitle peace officers to workers’ compensation benefits if injured while protecting others in or out of the state of California. Lawmakers introduced this bill as a reaction to the October 2017 mass shooting in Las Vegas, where many Californians were in attendance at the tragic Route 91 Harvest festival.

This bill should come up for a Senate vote in the near future and will probably also land on Gov. Brown’s desk.

SB 880 would create a four-year pilot program that would allow employers, with the consent of the injured workers, to pay temporary disability benefits via prepaid debit cards. The reason why this is necessary is that lawmakers fear that the debit cards will contain hidden fees that could hurt injured workers.

The pilot program would give employers a chance to prove that these prepaid cards are a good idea.

AB 479 would require doctors to consider a number of additional factors while analyzing impairment in breast cancer claims. These factors include:

• Pain.
• Skin disfigurement.
• The presence or absence of the organ.
• Any loss of function of the upper extremity or extremities, including loss of the range of motion, neurological deficits and lymphedema.
• Other impairments caused by the breast cancer, lack of the organ, or treatment related to the injury.

Prosecutors targeting workers’ compensation fraud could benefit from AB 2046, which would require state agencies like the Employment Development Department to share with investigators any evidence of workers’ compensation fraud.

In other words, this means that if your local district attorney sends a letter to the EDD requesting information for a fraud investigation, the EDD must reply and turn over evidence that could help the investigation.

The bill also eliminates some of the requirements around workers’ compensation fraud grant money by allowing prosecutors to carry unused fraud grant money into the next fiscal year.

SB 183 proposed to limit the actions of federal immigration officials in state buildings, such as WCAB offices. The Senate approved the bill, and it is likely headed to a vote on the Assembly floor in the next month. You may have seen this bill in the news in recent months, as President Trump and Gov. Brown have traded barbs on this one.

AB 2802 would create the “Insurance Payment Intercept Program” aimed at helping the enforcement of payment of child support. The bill could directly impact the workers’ compensation arena by helping the Department of Child Support Services identify more EDD and other workers’ compensation liens. Currently the bill is in the Senate and is likely to be approved.

SB 1086 would permanently allow public safety workers up to 420 weeks to file a death claim. Under existing law, the statute that contains the 420 weeks provision is set to expire, or “sunset,” on Jan. 1, and the time to file a death claim would revert to 240 weeks.

This bill would make the 420 weeks permanent. If the bill fails, the 420-week provision would sunset. This bill is currently in the Assembly and looks like it will eventually make it to Gov. Brown’s desk.

Slow session

This has been a relatively slow legislative session, according to a great analysis by our friends at WorkCompCentral. The reasons are many:

Premiums are 36.5% lower than they were in 2015. With premiums being lower, there’s less pressure to pass legislation.

Some may be waiting out Brown, as he is a known commodity. Those who want to try out bills that have been vetoed in the past likely want to see who wins the general election, and who they appoint to head the Department of Industrial Relations.

As leading Democratic contender Gavin Newsom and Republican nominee John Cox square off in the general election against each other, the folks over at the Washington Post have been predicting for months that California’s upcoming elections could swing the state farther to the left, as Californians may tend to put more anti-Trump politicians into office.

If that turns out to be true, then workers’ compensation practitioners should be on the lookout for any new health care laws that could impact the workers’ compensation system.

Dead bill

We previously reported on AB 206. This bill died in session and will not become law. However, it attracted enough attention back in January that it was worth mentioning here.

AB 206 was drafted to make sure that day laborers who are hired by homeowners are entitled to workers’ compensation benefits. The bill first proposed to do away with the exemption for employers — i.e., homeowners — to provide workers’ compensation coverage for unlicensed landscapers, maintenance workers and gardeners who perform less than 52 hours of work during a three-month period. It was subsequently amended to preserve the 52-hour exemption.

The amendments were not enough to save this bill, as lawmakers and many of you were concerned that it could increase costs for homeowners. Although this bill died in committee, my advice to friends and family still stands: If you like to sleep well, hire licensed contractors to work on and around your home.

John P. Kamin is a workers’ compensation defense attorney at Bradford & Barthel’s Tarzana location. He is WorkCompCentral's former legal editor. This entry from Bradford & Barthel's blog appears with permission.