Q1 – 2022 – April 7, 2022
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Research Independent Medical Review Decisions: January 2015 Through December 2021. CWCI’s updated report on changes in IMR volume, shifts in the mix of services reviewed; changes in IMR response times; and regional variations. In addition, the study tracks IMR uphold rates by medical service category; the distribution of prescription drug IMRs and uphold rates by drug category; the proportion of IMRs involving medical service request modifications among 6 treatment categories; and the concentration of IMR activity among high-volume physicians. Executive Briefing (3/29/22) (members only) Research Update (3/23/22) (members only) Bulletin (3/23/22) (members only) News Release (3/23/22) (public) Update on COVID-19 Claims as of March 22. Data from CWCI’s COVID-19 App, compiled as of March 22, shows the number of COVID-19 claims reported to the DWC plunged 91.2% from 48,717 claims in January to just 4,283 claims in February. The current claim count for January is already an all-time high — 11.3% above the previous record of 43,781 reported for December 2020. The spread of the Omicron variant across the state at the end of 2021 and the beginning of 2022 is evident in the COVID claim figures as CWCI projects there will ultimately be 23,161 claims for December and 52,614 claims for January; though January was clearly the high-water mark as only 5,311 claims are projected for February. The crest in the Omicron wave is also evident in the data on COVID claims as a percent of all WC claims. COVID claims soared from 6.7% of all WC claims in November to 34.0% in December, 55.7% in January and 9.9% in February. The February decline was dramatic, but given the fluctuations in COVID claim volume since the pandemic began, growing concerns about the emergence of the Omicron BA-2 variant, and the potential for long-haul COVID claims, employers need to remain vigilant in monitoring and reporting COVID cases as Cal-OSHA’s COVID-19 Emergency Temporary Standards require them to report 3 or more coronavirus cases detected within a 14-day period. CWCI’s App now contains data on about 2.15 million claims from the pre-pandemic baseline and the pandemic periods, including more than a quarter million COVID-19 claims reported as of March 22 – 1,400 of which were death claims. COVID/Non-COVID Claim App (3/22/22) (public) Executive Briefing (3/29/22) (members only) Update on COVID-19 Claims Reported as of March 7, 2022. Wild fluctuations in California workers comp COVID-19 claim volume continued into early 2022 with the COVID claim count hitting a record high in January as the Omicron variant spread throughout the state, then falling more than 90% in February as the Omicron wave receded. Bulletin (3/16/22) (members only) Can Access To Medical Care In California WC Be Improved? A detailed analysis of injured worker access to workers’ compensation treatment in California, based on a CWCI analysis of 1.5 million claims from accident year 2010 through accident year 2020. The report measures the average and median amount of time between the employers’ notification of an injury and the first treatment, with additional breakouts showing the amount of time that injured workers wait for an initial evaluation and management visit, an initial physical therapy visit, and an initial visit for the five most common workers’ compensation surgical procedures. In addition, the study includes results of individual interviews with physicians and clinic managers who offer their perspectives on the administrative burdens associated with rendering medical care in California workers’ compensation. Research Update (3/4/22) (members only) Bulletin (3/4/22) (members only) News Release (3/4/22) (public) Calif WC Medical Care: Update on Network Penetration… With the issue of injured worker access to care brewing in Sacramento, CWCI recently used IRIS data to update the MPN utilization data by measuring the percentage of WC medical visits and the percentage of WC medical payments associated with MPNs from AY 2012 – AY 2021. The results underscored the growing influence and importance of MPNs in Calif WC, which as of 2021 accounted for 91.8% of injured worker treatment visits overall, and 90.3% of total WC medical payments. Data tables developed by the Institute quantify the growth in network penetration across all types of WC medical care over the past decade. Executive Briefing (2/24/22) (members only) California WC Prescription Drug Trends Interactive Data. An updated look at California WC prescription drug data on CWCI’s Prescription Drug Interactive Application, updated with IRIS data through Q2 2021. Exhibits include drug utilization by Exempt status or fill type; utilization detail (including AWP and average paid by drug ingredient for CY 2016 through CY 2022; distribution of the top 20 exempt drugs dispensed to injured workers with comparative data for pre- and post-formulary periods; changes in the distribution of the MTUS drug list categories since the adoption of the MTUS formulary; and an updated MTUS drug list including recently added medications broken out by drug ingredient and their formulary status. Interactive Tool (2/17/22) (members only) COVID Claims Update as of Jan. 24. The Jan. 24 update to CWCI’s COVID-19/Non-COVID-19 Interactive App, showed the year-end increase in COVID claims continued to gain steam as the total COVID claim count for December stood at 15,699, a nearly 4-fold increase from the 3,193 COVID claims reported for November. Much of that increase occurred in mid-January as the number of reported COVID claims for December jumped 89% from the Jan. 10 update to the app. CWCI’s projection of the ultimate COVID claim count for December rose from 12,438 claims two weeks earlier to 23,549 claims on Jan 24. The count of reported COVID claims for December was the second highest monthly total for 2021 (the total for last January was 22,313) and the fourth highest monthly COVID claim count since the pandemic began in March 2020. The year-end surge in COVID claims tracked with the sharp increase in COVID infections statewide that occurred as the Omicron variant spread rapidly across the state. As w/the 2020 year-end surge, the 2021 year-end surge was continuing into January. CWCI’s projected COVID claim count for December was higher than the projected total from January 2021 and ranked second only to the 44,186 claims projected for December 2020. Executive Briefing (1/28/22) (members only) NAIC Report on Calendar Year 2020 Insurer Profitability. NAIC data show California workers comp insurers return on net worth fell from 13.7% in 2019 to 10.9% in 2020, the sharpest year-to-year decline since 2012, but that return was still better than the 9.6% return recorded by workers comp insurers nationwide. Bulletin (1/26/22) (members only) COVID Claim Update as of Jan. 10, 2022. After peaking in August then declining during the fall, the monthly count of COVID-19 California workers’ comp claims soared from 3,047 claims in November to 8,292 claims in December – the second highest level of the year – as the Omicron variant took a toll, with CWCI projecting that the December total could climb to 12,438 cases as claims that are still being filed or investigated are added. The January 10 update to CWCI’s COVID-19/Non-COVID-19 Interactive App, which includes details on California workers’ comp claims from comparable periods of 2019, 2020, and 2021, shows that since the pandemic was declared in March 2020 there have been 181,770 COVID claims reported to the DWC. The Jan. 10 results show that after falling to a 5-month low in November, the monthly COVID claim count reversed course in December as the Omicron variant led to a wave of coronavirus cases throughout the state. Additional claims with November and December injury dates are still being reported, but the current count of 8,292 COVID claims for December represents a one-month increase of 172% and is already above the peak level reached in August during last summer’s Delta surge. The year-end surge pushed the total number of COVID claims reported to the DWC for AY 2021 to 63,034, or 10.0% of all AY 2021 work injury and illness claims. That was well below the 118,995 COVID claims reported for AY 2020 (17.9% of all workers’ comp claims reported for that year) when there were only a handful of COVID claims reported for January and February, but COVID vaccines were not available. However, with the Omicron surge at the end of 2021, COVID claims as a share of all workers’ comp claims more than tripled from 6.6% in November to 20.5% in December – the highest percentage since January 2021. Bulletin (1/13/22) (members only) News Release (1/13/22) (public) CWCI Updates Interactive Apps With Data Through June AY 2021. In early January CWCI completed and posted updates to our Claims Monitoring, Regional Scorecard, and Prescription Drug interactive applications, with IRIS data on California workers’ compensation claims through June of AY 2021. These apps are available exclusively to CWCI members who log on to our website (www.cwci.org) with their username and password. Once logged in, users can access the apps from the drop-down menu under the Research tab on our home page. Links to the on-line tutorials remain posted below the descriptions of each app in the Research section of our website to guide users. The apps offer detailed data that can be used to examine and compare industry data on key metrics.
Statutory/Regulatory Legislative Update. In late March the Senate Cmtee on Labor, Public Employment and Retirement voted to advance SB 1127, which like 2021’s failed SB 335, would cut the amount of time claims administrators have to investigate most job injury claims from 90 days to 60 days, and for specified claims filed by first responders (i.e., hernias, heart trouble, pneumonia and TB) investigation times would only be 30 days before the claims would be presumed compensable, w/a new penalty attaching if the WCAB determines that the employer unreasonably denied a first responder claim for a presumptive injury. That penalty would be 5 times the benefits that were unreasonably delayed, capped at $100 K. SB 1127 also would allow first responders suffering from a cancer that is presumed compensable to receive up to 240 weeks of TD – more than double the current 104 weeks of TD allowed w/in a 5-year period. Unlike SB 335, SB 1127 is authored by Senate President Pro Tem Toni Atkins, so it bears watching. Other bills of interest to the WC community that will be heard in Assembly committees at the end of March: AB 1681 would allow local DAs to meet w/insurers and S-I employers to discuss suspected fraud cases; AB 1751 would extend the COVID presumption created in 2020 and set to expire on 1/1/23, until 1/1/25. The presumption applies to firefighters, police and health care workers who test positive w/in 14 days of going to work and to other workers who test positive w/in 14 days of reporting to a workplace where there is a COVID-19 outbreak. The law would also presume that first responder COVID claims are compensable if they aren’t denied w/in 30 days and presume that claims by other workers are compensable if not denied w/in 45 days; AB 1993 would mandate that employers require employees and contractors who are eligible for a COVID vaccine provide proof of vaccination and affirm by 1/1/23 that those workers are vaccinated or face a fine for failure to do so; AB 2148 would extend claims administrators’ ability to pay benefits via prepaid debit card from 1/1/23 to 1/1/24; AB 2243 would require Cal/OSHA to create a high heat safety standard for 105+ degree days and reduce the wildfire smoke standard that triggers mandatory use of respirators from the current air quality index level of 500 to 200; AB 2614 would require employers to provide WC coverage for temporary contract workers who perform labor w/in the employer’s “usual course of business,” even if they are employed by a staffing agency; AB 2848 would extend the deadline for DWC to complete its study of the effects of exempting certain treatments provided by MPNs w/in the first 30 days from prospective UR. The original deadline, included in SB 1160, called for the DWC to submit its report to the Legislature by 1/1/20. Executive Briefing (3/29/22) (members only) WCAB In-Person Hearings… DWC announced that although it would continue to conduct MSCs, priority conferences, status conferences, lien conferences, and Special Adjudication Unit conferences by phone, as of 3/21/22, in-person trials, lien trials, expedited hearings and Special Adjudication Unit trials would resume at all WCAB district offices except Eureka. Masks are required regardless of vaccination status or county mandates. Executive Briefing (3/29/22) (members only) Forum Comments on QME Regs. CWCI’s comments submitted to DWC’s second forum on proposed changes to the assignment and evaluation procedures within the Qualified Medical Evaluator regulations. Forum Comments (2/25/22) (public) 30-Day Comments on Copy Service Regs. CWCI’s comments on proposed modifications to the text of rules related to the Copy Service Price Schedule. 30-Day Comments (2/25/22) (public) COVID Sick Leave Reinstated. In early February Gov. Newsom signed SB 114 which requires employers w/ 26 or more employees (about 75% of all workers in Calif are covered) to pay COVID sick leave to employees who can’t work or telework due to COVID. WC claims staff should note that TD on WC COVID claims is not due until the worker’s COVID sick pay is exhausted. The COVID sick pay is retroactive to 1/1/22 and expires on 9/30/22. It covers workers regardless of immigration or documentation status but differs from prior COVID sick leave because it makes it easy to get the 1st 40 hours of COVID sick pay, but workers must provide a positive COVID test to qualify for the 2nd 40 hours. Also, unlike prior federal and state COVID-19 paid leave, employers must now cover the cost of the additional time off, and though the governor said he is willing to reassess the situation and provide later assistance to businesses, employers should assume they will be on the hook for the full cost of the new COVID-related paid leave. SB 114 again incorporated Cal-OSHA’s COVID-19 Emergency Temporary Standards, which call for employees w/work-related COVID exposures to be paid as if they are still on the job. So if an employee has to take leave due to a work-related COVID exposure, the employer should pay them as if they are still working according to the Cal-OSHA regs CCR 3205(c)(9)(D). The Institute provided further details on SB 114 and noted that covered employers had until 2/19/22 to comply with the law. Executive Briefing (2/24/22) (members only) Annual Report of Inventory Due 4/1/22. The Institute issued a reminder to members that WC claims administrators’ Annual Report of Inventory (the ARI or DWC Form 851) for CY 2021 claims is due April 1. The ARI must note the number of claims reported at each adjusting location for the previous calendar year and must be completed and submitted to the Audit Unit even if no claims were reported. An ARI is required for each adjusting location unless its requirement has been waived by DWC, in which case the claims administrator only needs to complete the top part of DWC Form 851 (the Annual Report of Adjusting Locations and the Annual Report of Inventory forms were merged in 2019). That said, the head of the Audit Unit recently told CWCI that the last waiver was issued in 2013. Once filed, claims administrators have 45 days to report any changes in their ARI or annual report of adjusting location. The Audit Unit’s instructions on filing the ARI are on its website. Executive Briefing (2/24/22) (members only) Reinstatement of COVID Sick Leave Will Impact TD on WC COVID claims. In January, Gov. Newsom and legislative leaders announced plans to reinstate paid sick leave for workers who test positive for COVID or who care for loved ones who test positive. In his Jan. 10 budget proposal, Newsom said he wanted the leave reinstated, but details were unclear. Under the late January agreement, the Legislature would act on Newsom’s emergency budget request for COVID programs in order to fast track the request w/in a couple of weeks rather than waiting for the regular budget to be approved in June. The proposal would require companies w/26 or more employees to provide up to 40 hours of flexible paid leave to full-time workers who are sick w/COVID or caring for an ill loved one with the virus. Employees who provide proof of a positive COVID test for themselves would also qualify for an additional 40 hours of paid time off. Part-time workers will be eligible for sick leave equal to the number of hours they typically work in a week or twice that amount with a positive test. The plan called for the sick leave to be retroactive to cover coronavirus-related absences since Jan. 1 and extend until Sept. 30, 2022, but under SB 1159, enacted in September 2020, workers are not entitled to TD until such sick leave is exhausted, so any COVID claims for which TD has been paid for lost time since the beginning of 2022 would be affected. Executive Briefing (1/28/22) (members only) Renewed Push to Add COVID, Cancer & Other Presumptions for Hospital Workers. In January, state lawmakers were again considering a 2-year bill (AB 213) to give hospital employees who provide direct patient care in acute care hospitals a rebuttable presumption of compensability for infectious diseases, cancer, PTSD, musculoskeletal injuries, and respiratory diseases, including COVID. There is an existing COVID presumption for health workers who provide direct patient care in acute care hospitals in LC §3212.87, but it is scheduled to be repealed on January 1, 2023. The last version of AB 213 from 2021 would have created a temporary presumption for most of the listed conditions, and a permanent presumption for COVID, but amended language in January made all the presumptions permanent, and specified that the cancer presumption not only applies to liver, kidney, ovarian, breast, nasopharyngeal and thyroid cancer, but multiple myeloma, brain and nervous system cancers, human papillomavirus-positive tonsillar cancer, and cancers “that develop or manifest as a result of exposure to antineoplastic drugs, anesthetic gases or surgical smoke.” In addition, AB 213 stated that the presumption shall be extended to a hospital employee following termination of employment for three calendar months for each full year of employment, but not to exceed 120 months, “beginning with the last date actually worked in the specified capacity,” creating the potential for a huge, ongoing liability for acute care hospitals throughout the state. Executive Briefing (1/28/22) (members only) Injury Summary Posting Reminder for Employers. CWCI reminded members that under state law most employers must complete and post the Annual Summary of Work-Related Injuries and Illnesses (Form 300A) for a 3-month period between Feb 1 and Apr 30, even if no work injuries or illnesses occurred in the year. Employers must record info about every work-related death, injury or illness, including those related to COVID, involving loss of consciousness, restricted work activity or job transfer; days away from work; or medical care beyond 1st aid, and report significant work-related injuries and illnesses diagnosed by a physician or licensed health-care professional. At the end of the 3 months, the summary should be taken down and kept on file for 5 years. Executive Briefing (1/28/22) (members only) CMS Changes to WC Medicare Set-Asides. In early January, CMS quietly issued a memo that directly affects its view of Workers’ Comp Medicare Set-Asides. The rules are in Version 3.5, available here. Of primary importance in the new rules is section 4.3, which addresses the use of non-CMS-approved products to address future medical care which CMS treats as a potential attempt to shift financial burden by improperly giving reasonable recognition to both medical expenses and income replacement. Under these rules, if a settlement meets voluntary workload review thresholds but is not submitted to and approved by CMS, CMS will now presume that the settlement does not adequately consider Medicare’s future interests and is instead an attempt to shift liability to Medicare. Thus, Medicare will deny payment for any treatment that it deems is related to the work injury until the claimant’s entire net settlement recovery (future medical, indemnity, and all other aspects of the settlement) are exhausted. Accordingly, even if an MSA was included in a settlement, if the MSA has not been approved by CMS then the entire MSA will be disregarded. WCMSA submissions have always been voluntary, and CMS will not review a submission unless the claim meets review thresholds, but this new rule effectively makes WCMSA submission mandatory. Where parties obtain a CMS approval of an MSA, section 4.3 still requires the applicant to exhaust the MSA amount before paying future medical related to the workers’ comp claim; but where CMS approval is not obtained (e.g., non-submit and/or evidence-based MSAs), the applicant must prove that they have spent down the entire net settlement amount before Medicare will start paying.
Legal KUCIEMBA V VICTORY WOODWORKS. A DWC Newsline regarding pandemic appearances provided adequate notice that a previously scheduled hearing would take place telephonically, and lien claimant’s due process rights were not violated when a hearing originally noticed as in-person was automatically converted to a telephonic hearing. While the requirement of notice is engrained in the concept of due process, this ruling clarified that due process does not require a particular form of notice; only that the notice be reasonable.
Other CWCI Case Law Seminar. The Institute’s 24th Annual Case Law Seminar is set for May 12 as both an in-person event and as a live, online broadcast. The program will review how recent trends in decisional law are reshaping Calif WC and discuss negotiation and defense strategies for attorneys, claims personnel, and hearing reps. In addition to updates on recent rulings, the speakers will identify issues related to statutory and regulatory changes, examine old case law to see what still applies, and offer claims and legal professionals a fresh look at the impact of case law. The live program has been relocated to the OCC Conference Center in Oakland’s City Center (adjacent to 12th St. BART, and across the plaza from CWCI’s offices), but to allow for social distancing, limited seating is available for the in-person event. News Release (3/16/22) (public) Executive Briefing (3/29/22) (members only) News Release (2/22/22) (public) CWCI Elects Board of Directors For 2022. Sharon Thaler, National Director of Workers’ Compensation Field Underwriting Operations at AF Group / CompWest has been elected to Chair the California Workers’ Compensation Institute (CWCI) Board of Directors for 2022. Ms. Thaler was elected this week at CWCI’s 58th annual meeting in Walnut Creek. She was first elected to CWCI’s Board of Directors as a representative of AIG in 2017 and has been a member of the Institute’s Executive Committee since 2020, serving as Vice-Chair for the past year. Joining Ms. Thaler on CWCI’s 2022 Executive Committee will be Eric Belk of Travelers; Martin Brady of Schools Insurance Authority, an associate member; Eric Hansen, Preferred Employers Insurance; Kris Mathis, CopperPoint Insurance Companies; Vernon Steiner, State Compensation Insurance Fund; and Matthew Zender, AmTrust North America, who chaired the Institute’s Board for the past two years. Also elected to serve on CWCI’s 2022 Board of Directors were Ira Feurlicht, AIG; Mary Beth Pittinger, CHUBB; Christopher M. Thurman, CNA; Dwight Robertson, Employers; Robert L. Hughes, The Hartford; Amanda Granger, ICW Group; Carolyn Turpin, Liberty Mutual Insurance; Jim Hurley, Republic Indemnity; Carmen Sharp, The Hanover Insurance Group; Christine Closser, WCF Insurance; Michael Cunningham, Zenith Insurance Company; Neil DeBlock, Zürich North America; and Peggy Sugarman, City and County of San Francisco, an associate member. News Release (3/9/22) (public) CWCI Annual Meeting. The Institute advised members that our 58th Annual Meeting would be held live at the Lesher Center for the Arts in Walnut Creek, from 9 a.m. to 3 p.m. on Tues, March 8; with a virtual encore presentation on Thurs, March 10 for those who are unable to attend the live event. Both the live meeting and encore presentation were free to CWCI member employees. Executive Briefing (2/24/22) (members only) Executive Briefing (1/28/22) (members only) News Release (1/19/22) (public) CWCI’s 2022 Case Law Seminar… The Institute advised members that registration opened as of February for the Institute’s May 12 case law seminar. Members could register to attend the live event in Oakland or could can sign up for the virtual simulcast, and could receive a $100 member discount for either the live or the virtual event. Executive Briefing (2/24/22) (members only) Legal Committee Minutes. The Feb 10 meeting was held via Zoom. The discussion of amicus activity and case law update covered 5 cases: See’s Candies; Kuciemba; Banerjee; CCPOA (Martin); and Manuel. The Executive Committee has endorsed Institute participation in the Moot Court for Kuciemba and the Legal Committee unanimously voted for the Institute’s amicus participation in the case. Ms. Widener-Brightwell reviewed recent regulatory activity regarding WCAB Rules of Practice and Procedure, the DWC Emergency QME Telehealth regs; QME Electronic Service; the Copy Service Price Schedule; and the CMS WCMSA Policy Update. Ms. Langille led the discussion of pending legislation, which includes AB 1465, the MPN study bill; AB 1681, a bill to allow local DAs to convene fraud meetings with claim administrators; AB 1751, which will extend COVID presumptions; AB 399 the MPN Identification bill; SB 213, the hospital worker presumption bill; AB 1400, the single payer health care bill; and SB 114, the COVID Supplementary Paid Leave bill signed by the governor in February. In the update on the litigation environment, Saul Allweiss, Ms. Langille and Ms. Widener-Brightwell reported on presentations from the CAAA Winter Convention; Mr. Swedlow asked for input on QMEs providing testimony outside the scope of their practice, and Ms. Langille noted ongoing staffing shortages at the WCAB offices and WCAB chair Zalewski’s recent confirmation. Meeting Minutes (2/10/22) (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. |