Workers’ Compensation SB863 Includes Lien Reform

The recently passed workers compensation legislation, SB 863, is intended to have cost saving implications for California employers as well as increased benefits to injured workers, especially permanent disability benefits. SB 863 includes lien reform which is intended to help clear the system of lingering and inadmissible liens and free up the Workers’ Compensation Appeals Board (WCAB) hearing calendar. One specific element of the lien reform is that as of January 1st, 2013, SB 863 now requires lien claimants pay a $100 activation fee for liens filed before that date.

The new Labor Code for these fees is section 4903.06 which states:

4903.06. (a) Any lien filed pursuant to subdivision (b) of Section 4903 prior to January 1, 2013, and any cost that was filed as a lien prior to January 1, 2013, shall be subject to a lien activation fee unless the lien claimant provides proof of having paid a filing fee as previously required by former Section 4903.05 as added by Chapter 639 of the Statutes of 2003.

(1) The lien claimant shall pay a lien activation fee of one hundred dollars ($100) to the Division of Workers’ Compensation on or before January 1, 2014. The fee shall be collected through an electronic payment system that accepts major credit cards and any additional forms of electronic payment selected by the administrative director. If the administrative director contracts with a service provider for the processing of electronic payments, any processing fee shall be absorbed by the division and not added to the fee charged to the lien filer.

(2) The lien claimant shall include proof of payment of the filing fee or lien activation fee with the declaration of readiness to proceed.

(3) The lien activation fee shall be collected by the administrative director. All fees shall be deposited in the Workers’ Compensation Administration Revolving Fund and applied for the purposes of that fund. The administrative director shall adopt reasonable rules and regulations governing the procedure for the collection of the lien activation fee and to implement this section, including emergency regulations, as necessary.

(4) All lien claimants that did not file the declaration of readiness to proceed and that remain a lien claimant of record at the time of a lien conference shall submit proof of payment of the activation fee at the lien conference. If the fee has not been paid or no proof of payment is available, the lien shall be dismissed with prejudice.

(5) Any lien filed pursuant to subdivision (b) of Section 4903 prior to January 1, 2013, and any cost that was filed as a lien prior to January 1, 2013, for which the filing fee or lien activation fee has not been paid by January 1, 2014, is dismissed by operation of law.

(b) This section shall not apply to any lien filed by a health care service plan licensed pursuant to Section 1349 of the Health and Safety Code, a group disability insurer under a policy issued in this state pursuant to the provisions of Section 10270.5 of the Insurance Code, a self-insured employee welfare benefit plan, as defined in Section 10121 of the Insurance Code, that is issued in this state, a Taft-Hartley health and welfare fund, or a publicly funded program providing medical benefits on a nonindustrial basis.

Thus the lien claimant must pay the $100 activation fee before January 1, 2014. If there is no activation fee paid then a defendant can move for dismissal. You can determine whether the fee has been paid by checking EAMS (Electronic Adjudication Management System).

By Kathleen L. Brundo, Co-Managing Partner

Worker’s Comp Defense Attorney Matthew Kearl Conquers Mt. Whitney

Matthew Kearl, Partner at Adelson, Testan, Brundo & Jimenez’ Van Nuys Office, has surmounted Mount Whitney. At an elevation of 14,505 feet, Mount Whitney is the highest summit in the contiguous 48 US states and one of the highest on the North American continent. Mount Whitney is unique because not only is it the highest summit in the US, but its summit affords stunning views of the lowest point in the nation, the famed Death Valley.

Meeting the Challenge

Mount Whitney is a challenging climb for even the most experienced individuals. Since it is made up of granite, a surface that can be formidable in even the best hiking conditions, aspiring climbers must thoroughly plan and prepare for summiting the mountain. In addition to the challenges posed by the hiking and climbing surface, climbers must:

  • Follow best practices for avoiding conflicts with the bears and other wildlife that call Mount Whitney home;
  • Do without campfires or artificial heat during their time on the mountain;
  • Be prepared for inclement weather, which at such high elevations can become a major problem in a short period of time.

Summiting Success

Given these difficulties, why do individuals like Kearl summit these challenging mountains? In addition to enjoying the mountain scenery as a reward for the intense effort, summiting a peak like Mount Whitney brings successful climbers into a select group of “summiters,” an extraordinary accomplishment that comes from dedication, determination, and focus – some of the same qualities that allowed Kearl to become one of the top workers’ compensation defense attorneys in the nation.

Matthew Kearl served as California Deputy Attorney General from 1998 to 1999, and embarked on his career as a workers’ compensation defense attorney in 1999. Adelson, Testan, Brundo & Jimenez is fortunate to have him as partner at their Van Nuys office and congratulate him on this notable accomplishment.

 

 

What is MRSA? Adelson, Testan, et al. Explains the Basics

MRSA, Methicillin Resistant Staphylococcus Aureus, is a medical condition caused by staph bacterium. MRSA can be transmitted through contact with skin or the personal items of anyone carrying MRSA on their skin, even if they do not have an infection.  In workers’ compensation claims, ordinarily an injured worker has the burden of establishing that an injury arose out of employment. California Labor Code Section 3212.8 provides a presumption that MRSA arose out of employment or the course of employment (AOE/COE) for several classes of workers, whether they are volunteers, partly paid, or fully paid:

  • Sheriff’s officers
  • Police, firefighters and related personnel
  • Forestry (primary duty of firefighting)
  • Fish and game workers

Defending Against MRSA Related Claims

The presumption covers MRSA skin conditions and internal infections for workers during their period of service. Schools, prisons and jails, long term care facilities, gyms, contact sports, and day care centers are all frequent points of origination for such MRSA infections. Given this information, employers must first decide whether to accept or deny a worker’s compensation claim. In industries that do not have a presumption, the employee must prove the MRSA infection is AOE/COE. Employers should take action to:

  • Prove exposure outside of work, such as at a doctor’s visit or contact with an infected person.
  • Establish a full medical history, including all hospital and doctor visits and prescriptions.
  • Run criminal and civil background checks for other potential sources of infection, such as prior convictions for drug use.
  • Obtain a general medical history of persons in close contact who may have transmitted MRSA to the employee.

For presumption cases, it is difficult to rebut a claim, but MRSA related conditions other than skin infections and blood borne diseases are not covered by the presumption. Given the necessity of early treatment in MRSA cases, it may be more cost effective to pay for early medical treatment and fight the claim afterwards. Remember, providing a benefit does not automatically advance approval of a claim.

Learn more about defending against worker’s compensation claims involving MRSA infections from David Tew, Managing Partner of the Adelson, Testan, Brundo & Jimenez Fresno office in our educational seminar series by clicking on the YouTube video below or contact the law offices of Adelson, Testan, et al. for more information.

Workers’ Compensation Bill SB 863 – New Legislation

The recently passed workers’ compensation bill SB 863 (full text available here) will significantly change the current workers’ compensation system in California. This new law is designed to decrease litigation costs to employers.

The attorneys of Adelson, Testan, Brundo & Jimenez are already familiar with the changes in SB 863, which will be implemented on a rolling basis over the next two years.

SB 863 offers modifications that are projected to save millions of dollars in workers’ compensation expenses.  Briefly, some of the changes are:

  • The lien system will see a major overhaul. The lien filing fee has been reinstituted at $150. The statute of limitations is now 18 months from the date of service, and liens will not be permitted for treatment disputes that should be handled through Independent Medical Review (IMR). This reduces the cost to the defense while ensuring that truly injured workers can access care timely and within the existing system.
  • There will no longer be permanent disability add ons for psychological, sexual, or sleep disorders arising from a physical injury, except for catastrophic injury or violent act claims. Though in most cases, treatment for these disorders is still required as part of a legitimate workers’ compensation claim for other injury, costs for the defense will be reduced through the removal of the add on treatment packages.
  • The old system of AME/QME review is changing, so that IMR will be mandatory in almost all treatment disputes, and the decision of the Independent Medical Reviewer will be final, limiting expenses related to endless court appeals.

These reforms, in particular the lien system changes and the IMR process, is projected to reduce the backlog of unnecessary and fatuitous litigation that is currently clogging the workers’ compensation system.

Contact Adelson, Testan, Brundo & Jimenez for seminars on SB 863.