Q4 – 2020 – January 27, 2021
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Research Update on COVID Claims Data as Reported Through Dec. 14. CWCI COVID-19/Non-COVID-19 Interactive Data App updated with claims data reported to DWC through December 14 featured data on 1,171,608 claims from AY 2019 and AY 2020. As of that date, 65,165 COVID-19 claims had been reported in AY 2020, though the Oct and Nov data were relatively green as claims from those months were still coming in or under investigation. The preliminary results from the most recent months showed COVID-19 monthly claim volume, which had declined in Aug and Sept after peaking in July, increased from 4,247 claims in Sept to 4,628 claims in Oct (+9.0%), then more than doubled to 10,305 claims in November (+127.0%). Meanwhile CWCI’s projected ultimate claim count for Nov., which applies claim development factors to account for reporting time lags, estimated the Nov. COVID-19 claim count would eventually hit 17,312 claims, surpassing the July high noted by 1,823 claims. Altogether, there were 531,959 WC claims with Jan through Nov injury dates reported to DWC. Even with the addition of the COVID-19 claims, that was down 16.8% from the 639,649 claims reported for the first 11 months of 2019, though the difference was only 12.3% if CWCI’s updated projection of the ultimate claim count for this year was used. COVID-19 claims have accounted for 1 out of 8 WC claims reported in Calif this year, but with the recent surge, that proportion rose to 1 out of 4 claims in Nov. Executive Briefing (12/17/20) (members only) Bulletin (12/18/20) (members only) News Release (12/22/20) (public) 2019 Workplace Fatalities. The Bureau of Labor Stats released its annual occupational fatality report yesterday which noted that for the first time in 3 years the number of work-related deaths in U.S. increased, climbing 2.2% to 5,333 cases last year – the highest level since 2007. At the same time, employment was up, so the rate of work-related fatalities per 100,000 full-time employees held steady at 3.5. The data reflect pre-pandemic experience and COVID-19 was not yet an issue, so transportation-related incidents were again the most common cause of work fatalities, accounting for nearly 40% of the 2019 job-related deaths, w/driver, sales workers and truck drivers accounting for 1,005 of the fatalities, the highest number since this series began in 2003. Fatalities among workers age 55 and were up 8% to 2,005 cases in 2019, which is the largest number ever recorded for this age group; while deaths among Hispanic or Latino workers were up 13% to 1,088, the highest level since 1992. Unintentional overdoses due to nonmedical use of drugs or alcohol increased for the 7th year in a row, climbing to 313 cases in 2019. To view the report, click here. Executive Briefing (12/17/20) (members only) Public S-I Claim Experience. In December 2020 the Office of Self-Insurance Plans (OSIP) updated its summary of public S-I claims experience, providing an initial glimpse at data on claims reported by cities and counties; local fire, school, transit, utility, and special districts; and JPAs for the year ending 6/30/20 (FY 19/20), which includes data from the first 6 months of the pandemic. A CWCI review noted 108,080 new claims reported by public S-I employers in the last fiscal year, 7,437 fewer than in the FY 18/19 initial report (-6.4%). After accounting for the decline in public sector employment, the Institute calculated that overall claim frequency (claims/100 ees) fell from 5.5 to 5.2 claims/100 ees — the lowest level since the post-SB 863 year of FY 13/14 — which was almost entirely due to a decline in med-only claim frequency. Med-only claims accounted for 46.5% of the FY 19/20 public self-insured claims (50,250 claims or 2.4 claims /100 ees), while indemnity claims accounted for 53.5% (57,830 claims or 2.8 claims/100 ees). To gain a sense of how these recent changes may have impacted paid and incurred losses, and to put the results into historical perspective, the Institute also reviewed OSIP’s initial reports on public S-I employer experience for the past decade and prepared a detailed table comparing Calif public S-I paid and incurred losses at first report for claims from FY 2010/11 through FY 2019/20. Executive Briefing (12/17/20) (members only) Bulletin (12/09/20) (members only) News Release (12/11/20) (public) Work Injury and Illness Data for 2019. The estimated number of nonfatal work injuries and illnesses in California rose 3.6 percent between 2018 and 2019, though the nonfatal work injury and illness rate per 100 full time employees (FTEs) showed almost no change as statewide employment hit record levels prior to the pandemic according to recent data from the Department of Industrial Relations (DIR). The figures released in November by the DIR Director’s Office of Policy, Research and Legislation (OPRL) are based on estimates provided by the U.S. Bureau of Labor Statistics’ Survey of Occupational Injuries and Illnesses (SOII) and offer an alternate view of the state’s work injury and illness experience than workers’ compensation claim counts, as they include cases recorded by employers for which workers’ compensation claims may or may not have been filed. CWCI’s review compared results from 2018 and 2019 for California’s private sector, state government, and local government sectors. Bulletin (12/04/20) (members only) IMR Update Through Q3 2020. CWCI’s review of IMR experience shows 102,106 IMR decision letters issued in the first 9 months of 2020 – down 17.7% from the first 9 months of 2019. IMR physicians upheld the UR modifications or denials 89.0% of the time, which is close to the 88.2% uphold rate from 2019 (and also similar to the 88.6% rate from 2018). Pharmacy decisions’ share of the IMR decisions have been trending down since 2015 and showed a fairly sharp drop last year, falling from 46.4% of all decisions from the first three quarters of 2018 to 41.2% of the decisions from the same period of 2019, and that decline has continued this year, with IMR decisions involving drug requests falling to 39.6% of all decisions through the first 9 months of 2020. Opioids’ share of the pharmaceutical IMRs has been fairly stable since 2015, though the drop in the first 9 months of 2020 puts them at 28.8%, which is slightly below the previous low in 2016 (28.9%) and down from a high of 32.2% in 2018. Requests for PT, injections, and DME ranked behind pharmaceuticals in terms of IMR volume, comprising about 1/3 of the 2020 decisions. The percentage of decisions involving acupuncture requests has increased slowly but steadily in recent years, climbing from 2.2% of 2015 determinations to 3.8% in 2020. IMR uphold rates for the various service categories through Q3 2020 ranged from 80.5% for E&M to 91.2% for DMEPOS. A small number of physicians continue to account for most of the disputed medical services that go through IMR, with the top 10% of physicians identified in the IMR decision letters issued in the 12-month period ending 09/30/20 (914 providers) accounted for 82.3% of the disputed service requests, while the top 1% (91 providers) accounted for 39.8%. Executive Briefing (11/23/20) (members only) Nationwide Data on WC Benefits, Coverage & Costs. CWCI’s review of NASI’s annual report on WC Benefits, Coverage & Costs, updated with 2018 data (the most recent available) ranked the top 10 states based on total benefit payments in 2018 and found no change in the top 10 states from 2017. Zeroing in on California, CWCI noted that in 2018, the state accounted for 12.0% of all jobs covered by workers’ comp nationwide, 14.3% of covered wages, and 19.5% of all benefits paid to injured workers. Of the estimated $12.275 billion in benefits paid in CY 2018, medical payments accounted for $6.56 B, or 53.4%, while indemnity benefits accounted for 46.6%. In comparison, the nationwide data show a more even split, with medical benefits accounting for 49.5 percent of all payments and indemnity payments accounting for 50.5%. Nationwide, employers’ workers’ comp costs for 2018 (premiums, payments made under deductible plans, plus S-I benefit payments and admin costs) rose 0.7% to $98.6 B, but after adjusting for increases in covered wages, employer costs fell almost 4% from $1.26/$100 of covered wages in 2017 to $1.21/$100 of covered wages in 2018. Calif remains a high-cost state, ranking behind only AK and MT in terms of employer costs/$100 of covered wages, but Calif’s 2018 rate of $1.70 per $100 of covered wages was down 7.6% from $1.84 in 2017 and down 15.8% from $2.02 in 2014. Meanwhile, benefit payments nationwide fell from 0.80 to 0.77/$100 of covered wages from 2017 to 2018, while in Calif, paid benefits fell from 1.10 to 1.05 percent of covered wages. Executive Briefing (11/23/20) (members only) Bulletin (11/16/20) (members only) CWCI’s COVID-19/Non-COVID-19 Interactive App Updated with Data Through 11/16/20. CWCI posted an update to our COVID-19 and non-COVID-19 Interactive Data App, featuring data derived from 1,067,440 claims from AY 2019 and AY 2020, reported to the DWC as of November 16 – including the 53,943 COVID-19 claims reported this year. As of November 16, DWC’s Workers’ Compensation Information System (WCIS) had received reports on 478,934 workers’ comp claims with January through October 2020 injury dates, which even with the COVID-19 claims, was 18.6% less than the 588,506 claims reported for the first 10 months of AY 2019, or 12.8% less than the total claim count projected by the Institute after applying claim development factors to account for the reporting time lags on the 2020 claims. The data show the monthly tally of COVID-19 claims peaked at 14,688 claims in July, then fell sharply to 6,365 claims in August and 4,024 claims in September, but the downtrend may be over as there have already been 3,820 COVID-19 claims with October injury dates reported. COVID-19 claims as a percent of all California work injury claims also peaked in July, hitting 24.9%, but for the first 10 months of 2020, COVID-19 claims accounted for 11.1% of all claims. A new filter in the Denial/Notification tab allows users to view results by industry and for insured and/or self-insured claims. For example, data on insured COVID-19 claims from August show that 32.1% of claims from retail workers were denied vs. 61.2% of claims from construction workers. Executive Briefing (11/23/20) (members only) Executive Memo (11/19/20) (members only) Interactive App Update (11/18/20) (public) California WC Inpatient Hospitalization Trends, 2010-2019. CWCI Research shows the steep drop in inpatient hospitalizations involving California injured workers over the past decade was largely due to the ongoing decline in spinal fusions and a more recent decline in lower extremity joint surgeries. The study reviews OSHPD discharge data on 35.9 million inpatient hospital stays from 2010 through 2019 paid by workers compensation, Medicare, Medi-Cal and private insurance to identify workers’ comp inpatient trends and compare the volume and types of inpatient hospitalizations covered by workers’ comp to those covered by the three other systems. The OSHPD data used in the study was also used to update the Institute’s Inpatient Hospital interactive data tool. CWCI Research Update (11/10/20) (public) Interactive Tool (11/10/20) (members only) Executive Briefing (11/23/20) (members only) Bulletin (11/10/20) (members only) News Release (11/10/20) (public) California Workers’ Comp COVID-19 Claim Count Tops 50,000. The California workers’ comp COVID-19 monthly claim count may have peaked in July, but CWCI’s tally as of 11/2/20 showed that there had been 50,592 COVID-19 claims reported to the DWC – including 282 death claims. That translates to 1 out of every 9 California job injury claims reported for AY 2020. After climbing rapidly over the first 7 months of this year and hitting a record 14,453 claims in July, the number of COVID-19 workers’ comp claims reported to the DWC began to dwindle. The Nov. 2 count showed 6,710 claims with August injury dates, 3,779 claims with September injury dates, and 2,016 claims with October injury dates. A large number of September and October claims could still be reported, but the initial claim counts from both these months were well below the early counts from June and July, so even accounting for the reporting lag associated with COVID-19 claims, those figures suggest a sharp downturn. Using claim development factors based on historical claim development from 2019 and the fluctuating development pattern for 2020 COVID-19 claims, CWCI now projected that there could ultimately be 15,786 COVID-19 claims with July injury dates, 6,910 claims with August injury dates, 4,535 claims with September injury dates, and 5,242 claims with October injury dates, which would put the projected number of COVID-19 claims for the first 10 months of AY 2020 at 57,833. Notably, denial rates for COVID-19 claims had stabilized within a narrow range, holding between 28.7 percent and 31.3 percent from April through August, though denial data on September and October claims was too green for analysis as many of those claims remained under investigation. News Release (11/06/20) (public) Interactive App Update (11/18/20) (public) CWCI Quantifies the Proportion of Calif. COVID-19 Cases Resulting in WC Claims. A CWCI analysis of data from the California Department of Health and the DWC’s WCIS database shows that only 1 in 14 COVID-19 cases involving working-age Californians from May through September of 2020 has been claimed as a job injury at this point, while only 1 in 25 COVID-19 deaths among working age individuals has been claimed to be work-related. Bulletin (10/22/20) (members only) News Release (10/22/20) (public) Impact of the OMFS’s New Geographic Adjustment Factor. CWCI Research compares Evaluation and Management (E&M) service and payment data before and after the switch from a statewide to an MSA-based geographic adjustment factor in the workers’ compensation Official Medical Fee Schedule. The study compares 2018 and 2019 data to identify changes in the distribution of E&M services and payments among MSA-assigned counties; average amounts paid within MSA-assigned counties; the overall mix of E&M services used within the state; and the proportion of E&M services that were paid below the amount allowed by the fee schedule and the change in the average discount. Spotlight Report (10/13/20) (members only) Bulletin (10/13/20) (members only) News Release (10/13/20) (public) Q2 2020 Insurer Experience. WCIRB’s latest report on Calif WC insurer loss and premium experience through Q2 2020 showed total DWP in the first half of 2020 was $7.6 billion, 11% less than in the first half of 2019, as the average charged rate for policies incepting in the first half of this year was estimated at $1.78 per $100 of payroll, down 8.2% from the average for all of 2019 and 40% below the 2014 peak level. Absent COVID-19, the indicated average advisory pure premium rate for 1/1/21 was slightly below the 2020 level, but after accounting for COVID-19 claims, WCIRB proposed an average rate increase of 2.6%. While the decline in DWP through Q1 2020 was driven by decreases in charged rates, the 34% plunge in premium between Q1 and Q2 was driven by the sudden and sharp slowdown in the economy. With premium down last year and losses up moderately, WCIRB projects the combined loss + expense ratio for AY 2019 will be 95, 8 points higher than in AY 2018 and the highest combined ratio since AY 2012. Claim volume generally increased through 2019, but w/the pandemic-driven economic slowdown, statewide shelter-in-place order, and delayed claim reporting beginning in March, claim volume has plummeted this year, with Q2 2020 indemnity claim volume 10% below the Q2 2019 level and med-only claim volume down by 1/3. Claim severity remained flat in 2019, with the average loss and ALAE per indemnity claim for AY 2019 claims projected to be $61,610, up less than 0.5% from AY 2018, but all bets are off for AY 2020, as claim severity will be heavily impacted by COVID-19 claims and other issues arising from the pandemic. Executive Briefing (10/12/20) (members only) COVID-19 Claim Update. CWCI’s COVID-19//Non-COVID 19 Interactive Claim App updated as of Oct. 5 indicates that the slowdown in the growth of COVID-19 WC claims that began in August continued in September. As of Oct 5, DWC had reports on 1,961 COVID-19 claims with September injury dates, bringing the total for the year to 44,800 claims — 10.9% of all AY 2020 claims, including 241 death claims, which was up from 224 reported as of Sept 24. After rising steadily in the spring and early summer, COVID-19 claim volume has dropped sharply in the last 2 months, suggesting that COVID-19 claims may have peaked in July. As of Oct 5, DWC had recorded 11,528 COVID-19 claims with June injury dates; 13,581 with July injury dates; 5,597 with August injury dates, plus the 1,961 claims from September. While August and September claim counts are relatively green, they suggest that COVID-19 claim volume is now trending down. CWCI projections, based on historical claim development from 2019 and the far less stable development pattern for COVID-19 claims in 2020, indicate there could ultimately be 12,591 COVID-19 claims with June injury dates; 14,785 with July injury dates, 6,996 with August injury dates and 4,412 with September injury dates, while for the first 9 months of AY 2020, CWCI now projects there could ultimately be 51,576 COVID-19 claims. At the same time, the economic slowdown has reduced overall claim volume. As of the latest report, DWC had recorded 409,579 claims through September, which is 22.2% less than the total recorded for the first 9 months of AY 2019, while CWCI’s projected total claim volume for this period is 485,465 claims — 12.9% below the total from the same period last year. The latest data also show denial rates for COVID-19 claims holding within a narrow range, as denial rates on claims from June through August ranged between 26.3% and 28.7%. One notable addition to the latest version of the CWCI App is a data table comparing notification time lags for COVID-19 and Non-COVID-19 claims from the first 9 months of AY 2020, and non-COVID-19 claims from the first 9 months of AY 2019. The table, posted under the Breakouts tab on the App and shown below, notes the average number of days between the date of injury and the employer’s notice; the employer’s notice to the claims administrator’s notice; and the date of injury to the claims administrator’s notice, all of which are broken out by injury month. Executive Briefing (10/08/20) (members only) Interactive App Update (11/18/20) (public)
Statutory/Regulatory Calif WC Medical Mileage Rate Cut to 56 Cents for 2021. The standard mileage rate for business miles will decrease from 57.5 cents per mile to 56.0 cents per mile effective January 1, 2021. As a result, the amount payable to California injured workers for travel related to medical treatment or evaluation of injuries also will decrease to the new rate. Workers’ compensation claims administrators should apply the new rate for travel on or after January 1, 2021, regardless of the date of injury, but should continue to pay the current rate of 57.5 cents per mile for travel that took place in 2020. Executive Memo (12/22/20) (members only) Bulletin (12/22/20) (members only) News Release (12/22/20) (public) WC Premium Rebate Requirement Extended. In April 2020 Commissioner Lara issued a Bulletin requiring all P&C and WC insurers to provide rebates or similar premium relief based on reduced risk exposures during the pandemic for the months of March and April, and to report the measures taken to the Dept of Insurance. On May 15, Lara extended that order until June. In early December, the commissioner issued Bulletin 2020-8, extending the requirement indefinitely for as long as the “pandemic continues to result in projected loss exposures remaining overstated or misclassified.” Insurer reports on any premium relief provided for the months of Sept, Oct, Nov or Dec must be submitted to CDI by Feb. 1, 2021, and thereafter within 30 days of the end of each calendar quarter. These reports are public. The Bulletin includes a link to an Excel workbook that can be used to prepare the report on the relief that was provided during each covered period, and the reports must be emailed to the Rate Specialist Bureau at RSBCovid19PR@insurance.ca.gov. Executive Briefing (12/17/20) (members only) 45 Day Public Comments on Proposed Amendments to Medical-Legal Fee Schedule Regulations. CWCI’s written testimony on the DWC’s proposed changes to the Medical -Legal Fee Schedule regulations. 45-Day Comments (12/14/20) (public) 2021 User Funding Assessments. DIR has calculated and issued the 2021 assessments and surcharges for user funding (Workers’ Compensation Administration Revolving Fund), the Uninsured Employers Benefits Trust (UEBT) Fund, the Subsequent Injuries Benefits Trust (SIBT) Fund, the Occupational Safety and Health (OSH) Fund, the Labor Enforcement & Compliance (LEC) Fund, and the Workers’ Compensation Fraud Account. Insurers must apply the rates against their insureds’ estimated annual assessable premium for policies incepting 1/1/21 through 12/31/21 and must advance the money to the state on behalf of policyholders then recoup the funds via policy surcharges and assessments. The first installment is due on or before January 1, 2021; the balance is due on or before April 1, 2021. To cover their share of the assessments self-insured employers and legally uninsured employers should apply the announced rates against the total amount of WC indemnity paid by their organization. Executive Memo (11/25/20) (members only) Bulletin (11/25/20) (members only) News Release (11/25/20) (public) Proposed Regs on COVID-19 Prevention Standards. The Occupational Safety and Health Standards Board (OSHSB), the standard-setting agency within Cal/OSHA, filed a Notice of Finding of Emergency and Notice of Proposed Emergency Action, seeking to regulate COVID-19 prevention in the workplace by adding sections §§3205, 3205.1, 3205.2, 3205.3, and 3205.4 to existing General Industry Safety Order regulations. A WebEx teleconference, accessible to the public, was scheduled for this November 19, 10:00 a.m. Although these regs incorporate some basic provisions set forth in SB 1159 and AB 685 (e.g., notification requirements and timeframes), they are far more complex and may be perceived as onerous in regard to the duties and burdens imposed on California private and self-insured employers. At the meeting, the Board reviewed and voted to approve the proposed text of the emergency regulations, which it anticipated would be approved by the Office of Administrative Law by the end of the month, so they would take effect by December. The meeting agenda with access instructions and all related documents, including the 21-page text of the proposed regulations, are posted at: https://www.dir.ca.gov/OSHSB/COVID-19-Prevention-Emergency.html. Executive Memo (11/16/20) (members only) PAR and FCA Audit Standards for 2021. DWC announced that the 2021 audit standards, based on 2017-2019 audit results. The PAR standard for 2021 will be 1.46656; the full compliance audit (FCA) standard will be 1.85379. As a result, audited adjusting locations receiving a PAR rating of 1.46656 or lower in 2021 must pay any unpaid compensation, but no penalties; while those with a PAR performance rating of 1.46657 or higher face a full compliance audit (FCA) and an additional sample of indemnity claims will be audited. FCA subjects with an FCA performance rating of 1.85379 or less must pay any unpaid compensation plus penalties for all violations involving unpaid & late paid compensation. If an FCA subject’s FCA performance rating is 1.85380 or higher, an additional sample of denied claims and the expanded sample of indemnity claims will be audited. DWC will assess penalties for all violations per 8CCR §10111 – 10111.2. The Audit Unit has posted more information on the 2021 PAR and FCA standards, as well as the 2019 Audit Unit Annual Report and the Ranking Report, on its web site, www.dir.ca.gov/dwc/audit.html. Executive Memo (11/05/20) (members only) Public Hearing on Proposed MLFS Regs. DWC announced a public hearing on proposed changes to the Med-Legal Fee Schedule via Zoom on Monday, 12/14/20 at 10 a.m. Proposed amendments to the schedule include, but are not limited to:
DWC expects that adoption of a predominantly fixed fee for all procedure billing codes to reduce frictional costs and that a flat-fee-based schedule and deletion of complexity factors will reduce billing disputes. It produced the initial draft of the MLFS regs following stakeholder meetings that included payers, physicians, and medical management companies, after which it held a series of public forums to gather further input and comments. The latest draft includes revisions incorporated following the last 15-day Forum comment period. The Dec. 14 hearing will be the first public hearing on these regs, and CWCI will submit comments, which are due by Dec. 15. DWC has posted the notice and the text of the current version of the draft regs here, and CWCI’s comments will be posted in the Regulation section of our website, www.cwci.org. Executive Briefing (11/03/20) (members only) WCAB Reinstates Rules Suspended at Start of Pandemic. The WCAB issued two en banc decisions on Oct. 27 reinstating 5 rules of practice and procedure it suspended in March and April due to the pandemic:
The latest actions follow the July reinstatement of the rule requiring WCJs to issue reports within 15 days of receiving a petition for reconsideration. The two en banc decisions from Oct. 27 are available here and here. Other than these five rules, all other Emergency Orders of prior En Banc decisions remain in effect. Executive Briefing (11/03/20) (members only) DWC Adopts Medicare’s Telehealth Rules. In mid-November, the DWC posted an Oct. 20 order from the AD adjusting the Physician and Non-Physician Practitioner Services section of the OMFS to adopt changes Medicare made to its rules covering telehealth services after Medicare adopted an expanded list of 11 new physician fee schedule telehealth-eligible codes for services o/a 10/14/20 and continuing for the duration of the public health emergency caused by the pandemic. In April and May of this year the DWC revised the OMFS to incorporate changes made by Medicare for telehealth services to facilitate remote exams during the pandemic. A copy of the Oct. 20 order is here. Executive Briefing (11/03/20) (members only) Heads Up: TTD/PTD Rates to Increase 1/1/21. The State Average Weekly Wage (SAWW) rose 4.3774 percent in the year ending 3/31/20, which will boost the maximum TTD and PTD to $1,356.31/week for 2021 injuries and bump the minimum to $203.44/week. Under LC §4661.5, the increases also apply to any TD paid 2 or more years after the injury date if justified by earnings. The increase must also be reflected in the annual cost of living adjustments (COLAs) to PTD and life pension payments for claims with injury dates o/a 1/1/03. As of 1/1/21, the max. rate for death benefit installment payments also will increase to the new $1,356.31/week TTD maximum. Unlike TTD, however, the minimum weekly rate for death benefit installment payments is set by statute at $224, so the 2021 TTD minimum of $203.44 should not be used to calculate minimum weekly rates for these death claims. Executive Memo (11/02/20) (members only) Executive Briefing (12/17/20) (members only) Executive Briefing (11/03/20) (members only) Bulletin (11/02/20) (members only) News Release (11/02/20) (public) 2nd Forum Comments on Proposed Amendments to the Copy Service Fee Schedule Regulations. CWCI’s second forum comments on the DWC’s proposed changes to the copy service fee schedule regulations. CWCI Comments (10/8/20) (public) AB 1867 COVID-19 Supplemental Paid Sick Leave Model Notices And FAQs. AB 1867 codifies Gov. Newsom’s Executive Order EO-N-51-20 (providing up to 80 hours of COVID-19 supplemental paid sick leave for food sector workers), and extends the requirement to include employers with 500 or more employees as well as public and private employers of first responders and health care workers who opted not to cover their employees under the federal Families First Coronavirus Response Act (“FFCRA”). AB 1867 also requires the Labor Commissioner to provide a model notice that employers must post in the workplace or distribute electronically to employees. The Commissioner has developed two notices, which differ based on the employer’s circumstances, so employers need to select the appropriate notice, which are now posted on the DIR website along with an FAQs page. Executive Memo (10/07/20) (members only) CWCI’s 2020 Legislative Session Wrap-Up. CWCI published its summary of 2020 enacted legislation, (Bulletin 20-14) with details on 14 different bills signed by the governor, several of which were urgency or budget trailer bills that took effect immediately. Many of the bills are related to COVID-19, including AB 685, which imposes new COVID-19 notification of imminent hazard mandates; AB 1867, which expands COVID-19 Supplemental Paid Sick Leave benefits (which impacts the payment of TD); and SB 1159, the COVID-19 Presumption bill. Executive Briefing (10/12/20) (members only) Bulletin (10/05/20) (members only)
Legal Applied Materials v. WCAB (Chadburn). The 6th DCA granted a writ of review in companion cases in which the WCAB upheld a finding of 100% PD for an injured worker who claimed psych injury (PTSD) after she became involved in a sexual relationship with the PTP for her underlying orthopedic industrial injury. The Award was based on a psych QME finding that applicant was totally disabled because she was unable to work due solely to PTSD, and under Hikida, the entire disability was the result of industrial medical treatment. The Court requested additional briefing on Fitzpatrick, which issued after the appeal was filed. CWCI & CalChamber filed a joint amicus brief in support of the defense. Amicus Brief (10/19/20) (members only)
Other Commissioner Rejects Rate Hike, Lowers Advisory Pure Premium Rate. On Nov 25, Ins. Commissioner Lara rejected WCIRB’s recommendation to increase advisory pure premium rates 2.6%, and instead approved the 10th consecutive premium rate decrease since 2015, lowering the avg rate for new and renewal policies that take effect o/a 1/1/21 by 4.6% from $1.52 to $1.45/$100 of payroll. The approved rate was below the avg rate of $1.49 recommended by Mark Priven, actuary for public members of WCIRB’s Governing Committee, and 19.4% less than the avg pure premium rate of $1.80 filed by insurers as of 7/1/20. WCIRB’s rate recommendation included a 6% surcharge to reflect projected COVID-19 costs that would have been spread across 6 employer categories based on exposure risk, but Lara said he did not want to include COVID-19 costs in the filing because CDI and WCIRB need more data on the effect of the virus on WC costs. Lara also directed insurers to identify COVID-19 adjustments in their rate filings submitted to the CDI and advised the WCIRB to collect data on aggregate premium charged for COVID-related adjustments on an ongoing basis. Executive Briefing (12/17/20) (members only) 2021 Annual Mtg Save the Date. Due to the uncertainties surrounding the pandemic, CWCI will again present a virtual annual meeting for 2021, which is tentatively scheduled for March 11, 2021. The working title is “One Year Later…” and the format will feature both taped and live presentations covering CWCI research and commentary followed by breakout sessions on special topics with expert speakers. More details will be forwarded as plans progress, but in the meantime, please save the date on your 2021 calendar. Executive Briefing (11/23/20) (members only) Minutes from the Legal Committee Meeting. The Nov. 12 meeting was held via Zoom webinar. The agenda included status reports and case law updates on County of Santa Clara v. WCAB (JusticeChadburn); Gund v. Co. of Trinity; Vasquez v. Jan-Pro; Corona v. California Walls; and Ceballos v.TriMark Chef’s Toys. Ms. Langille noted that the amicus subcommittee experiment was being discontinued as it resulted in too much of a burden on those who volunteered to serve on the subcommittee, so moving forward all committee members will need to review each amicus case up for consideration. Mr. Allweiss reported that other than joining with CWCI in filing the amicus brief in Chadburn, CalChamber has no new amicus activity. Committee members received an update on regulatory activity which included the announcement of new TTD and PTD rates for 2021 following the increase in the state average weekly wage; an update on the Med-Legal Fee Schedule regulations which had been released for 45-day public comment (CWCI comments were pending; and a CSIMS town hall revealed ongoing issues and concerns that QMEs have with the proposed regs); the Copy Service Fee Schedule regs for which CWCI had submitted second forum comments in October; and an announcement that the DWC has implemented a committee system to review the quality of QME reports. Ms. Langille reminded the committee that CWCI’s webinar on SB 1159 is still available and suggested that a private attorney general claim could be pursued under LC §§2698 and 2699.6 which provides an alternative civil action to be brought by an aggrieved employee which could have implications for the proper and timely reporting of COVID-19 outbreaks; advised that the DPH has issued two new guidance documents on AB 685 reporting of COVID-19 outbreaks to public health officials; and noted the recent passage of Prop. 22, which allows for app-based drivers to be deemed independent contractors. The review of the litigation environment and general discussion included an announcement that Diana Ping was appointed Deputy DIR Director; a guest presentation by Randy Pollock on IBR after Meadowbrook, with a focus on how interpreting services are approaching the new rules in terms of their billings; a reminder that DIR/WCAB had extended emergency regs related to electronic service of QME reports and QME evaluations; an update on COVID-19 claims experience from CWCI’s new data tool; Ms. Langille’s comments on what medical experts are telling attorneys to watchg out for in Covid cases (gleaned from a LexisNexis webinar); and a brief training session on the audio and video options available for video trials on LifeSize and tips for video trials suggested by CAAA and the WCAB, as well as a discussion of some of the problems encountered in using the system. Meeting Minutes (11/12/20) (members only) Minutes from the Claims and Medical Care Committees Meeting. The meeting was held Nov. 5 via teleconference. Ms. Secia and Ms. Jones discussed regulatory activity, including regs still in the Forum stage (Pharmaceutical Fee Schedule, Copy Service Fee Schedule); regs in the formal regulatory process (the ML Fee Schedule which was scheduled for 45-day public comment); and recently adopted regs related to the California Consumer Privacy Act; SIUs; MTUS Guidelines; the Rx Drug Formulary; QME Telehealth; and QME Electronic Service. Alex Swedlow, Rena David and Stacy Jones reviewed recent CWCI research, including the COVID-19 claim data from CWCI’s interactive data tool; the analysis of the effect of new geographic adjustment factors in the OMFS; the Research Update comparing California workers’ comp inpatient utilization to inpatient care paid under Medicare, Medi-Cal and group health; and the latest IMR outcomes analysis. Committee members then split into discussion groups to provide input and practical insight on CWCI’s proposed research agenda for 2021. Ms. Langille discussed Prop. 22, the initiative to allow app-based drivers to continue to be designated as independent contractors; then provide an update on recent case law including Gund v. County of Trinity; Vasquez v. Jan-Pro; as well as Applied Materials v. WCAB (Chadburn), a case in which CWCI and CalChamber have filed a joint amicus brief. Small group discussions were again held to flesh out issues and concerns with AB 1159 implementation. The meeting concluded with brief discussions of the 2021 benefit increases; the COVID-19 paid sick leave required under AB 1867; and the need for DWC guidance on COVID-19 benefit notices to avoid potential penalties. Meeting Minutes (11/05/20) (members only) CWCI Quarterly Summary. Quarterly listings of all CWCI publications, including publication dates, brief summaries of each topic and the various formats in which the information is available (e.g., research report, Bulletin, Executive Briefing, news release), so users can choose the level of detail they want to view. Listings include live links so users can click into the CWCI website to access specific documents quickly and easily. |