Review and Summary of New Labor Code Changes Effective January 1, 2000
© Copyright 2000
EMPLOYER CANNOT DISCHARGE EMPLOYEES FOR LAWFUL CONDUCT OCCURRING DURING NONWORKING HOURS AWAY FROM THE EMPLOYER'S PREMISES
Labor Code §96 has been changed so as to preclude an employer from demoting, suspending, or discharging an employee for lawful conduct occurring during nonworking hours away from the employer's premises.
Some attorneys have interpreted this law as prohibiting discrimination based on any lawful off work conduct. It is my suggestion that this particular Labor Code section should be given this interpretation at this time.
This Labor Code section does not directly effect workers' compensation laws. However, it obviously is a very significant law which effects when and why an employer terminates the employment of an employee.
The Labor Commissioner and his or her deputies and representatives authorized by him or her in writing shall, upon the filing of a claim therefor by an employee, or an employee representative authorized in writing by an employee, with the Labor Commissioner, take assignments of...
(k) Claims for loss of wages as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer' premises.
Leg.H 1999 ch. 692. Ref.: Hanna § 27.05, 30.01; Herlick §1/10.
THE INDUSTRIAL MEDICAL COUNCIL HAS ADDED PODIATRIST AND ACUPUNCTURIST
The Industrial Medical Council now consists of 11 doctors of medicine instead of 9. The council has added 1 doctor of podiatric medicine as well as an acupuncturist. This Labor Code section is not too surprising when one considers that Labor Code §4600 was changed last year to include an acupuncturist as an available treating physician of choice. My personal belief is that if a person wishes to use an acupuncturist, they should be allowed to do so, but at their own cost. Certainly they should not be allowed to be a designated treating physician having a presumption of correctness. It goes without saying that I don't think they have any business being on the Industrial Medical Council. However, current law does allow for an injured worker to use an acupuncturist under Labor Code §4600.
(a) The industrial Medical Council shall consist of [1] 11 doctors of medicine, at least one of whom shall be a psychiatrist and at least one of whom shall specialize in occupational medicine, two doctors of osteopathic medicine, two doctors of chiropractic, one physical therapist, [2] one doctor of psychology, one doctor of podiatric medicine, and one acupuncturist, all of whom shall be licensed to practice in this state, and one medical economist. The administrative director shall be an ex officio, nonvoting member of the council, and the medical director appointed pursuant to Section 122 [3] shall serve as executive secretary of the council.
(b) The Governor shall appoint [4] six doctors of medicine, two doctors of osteopathic medicine, one doctor of chiropractic [5], and one medical economist to the council. The Senate Committee on Rules shall appoint three doctors of medicine, one of whom shall be a psychiatrist, [6] one doctor of chiropractic, and the acupuncturist. The Speaker of the Assembly shall appoint two doctors of medicine, one of whom shall be an occupational medicine of whom shall be an occupational medicine specialist, [7] the physical therapist, [8] the doctor of psychology, and the doctor of podiatric medicine.
LEUKEMIA IS INCLUDED UNDER THE CANCER PRESUMPTION OF INJURY (FIREFIGHTERS/PEACE OFFICERS)
Labor Code §3212.1 has been amended to include leukemia under the term "injury". This section previously only included cancer.
The presumption of injury has also been modified. Formerly, the presumption could be disputed by "other evidence". Now the presumption may be controverted by evidence "that the primary site of the cancer has been established and that the carcinogen to which the member has demonstrated exposure is not reasonably linked to the disabling cancer."
Finally, the section states that the amendments are effective for injuries filed on or after 1-1-97. It is clear that the legislature was wanting to include leukemia under the section for a lot of cases that are already pending before the WCAB. It would also appear that the evidence allowed to rebut the presumption has been narrowed. All of these amendments appear to be in favor the injured worker.
[1] (a) This section applies to active firefighting members, whether volunteers, partly paid, or fully paid, of all of the following fire departments: (1) a fire department of [2] a city, county, city and county, district, or other public or municipal [3] corporation or political [4] subdivision, (2) a fire [5] department of the University of California and the California State University, [6] (3) the Department of Forestry and Fire Protection, [[7] and (4) a county forestry or firefighting department or unit [8]. This section also applies to peace officers, as defined in Section 8.301 and subdivision (a) of Section 830.2 of the Penal Code, who are primarily engaged in active law enforcement activities [9],
(b) The term "injury," as used in this division, includes cancer [10], including leukemia, that develops or manifests itself during a period [11] in which any member described in subdivision (a) is in the service of the department or unit, if the member demonstrates that he or she was exposed, while in the service of the department or unit, to a known carcinogen as defined by the International Agency for Research on Cancer, or as defined by the director [12].
(c) The compensation [13] that is awarded for cancer shall include full hospital, surgical, medical treatment, disability indemnity, and death benefits, as provided by this division.
(d) The cancer so developing or manifesting itself in these cases shall be presumed to arise out of and in the course of employment. This presumption is disputable and may be controverted by [14] evidence [15] that the primary site of the cancer has been established and that the carcinogen to which the member has demonstrated exposure is not reasonably linked to the disabling cancer. Unless so controverted, the appeals board is bound to find in accordance with [16] the presumption. This presumption shall be extended to a member following termination of service for a period of three calendar months for each full year of the requisite service, but not to exceed 60 months in any circumstance, commencing with the last date actually worked in the specified capacity.
(e) The amendments to this section enacted during the 1999-2000 Regular Session shall be applied to claims for benefits filed or pending on or after January 1, 1997, including, but not limited to, claims for benefits filed on or after that date that have previously been denied, or that are being appealed following denial. Leg.H. 1999 ch. 595.
[1] In the case of [2] cities, counties, cities and counties, districts [3] corporations [4] subdivisions, and active firefighting members of the [5] departments [6] whether these members are volunteers, partly paid, or fully paid, and in the case of active firefighting members of [7] or of any [8], whether volunteers, partly paid, or fully paid, and [9], [10] which [11] while the [12] , and that the carcinogen is reasonably linked to the disabling cancer [13] which [14] other [15], but unless [16] it
Ref.: Hanna § 3.113{4}; Herlick § 8.28.
FINES FOR BEING ILLEGALLY UNINSURED HAS GONE UP
Labor Code §3700.5 has been has been amended to include imprisonment in county jail for up to a year and/or a fee up to $10,000.00 for knowingly being uninsured for workers' compensation insurance. The section previously merely indicated that it was a misdemeanor. The section now has a fine up to $10,000.00 and imprisonment up to one year.
The failure to secure the payment of compensation as required by this article by one who knew or because of his or her knowledge or experience should be reasonably expected to have known, of the obligation to secure the payment of compensation, is a misdemeanor punishable by imprisonment in the county jail for up to one year, or by a fine of up to ten thousand dollars ($10,000), or by both that imprisonment and fine. Leg.H 1999 ch. 553/
Ref.: Hanna §§ 2.11[5], 2.17; Herlick § 319.
CLARIFICATION AND SOME CHANGES HAVE BEEN MADE FOR THE USE OF SPECIAL EXCESS WORKERS' COMPENSATION INSURANCE BY SELF-INSURED EMPLOYERS
Labor Code §3702.5 has extensive amendments with regards to a self-insured employers use of special excess workers' compensation insurance. For the most part this appears to be mainly clarification of existing law.
MEDICAL RECORDS PRIVATE/EMPLOYER'S BILL OF RIGHTS HAS BEEN SIGNIFICANTLY RESTRICTED
Labor Code §3762 has been amended to include a very significant restriction on who can review the insured workers' medical reports. Labor Code §3762 as amended now precludes the disclosure of medical reports to the employer except in two very limited circumstances. The first exception is that the employer can be provided the diagnosis of the injury for which the workers' compensation claim is made if this would some how effect the employer's premium. Bear in mind, the only information the employer would get under this circumstance is in fact the diagnosis.
The second limited exception is when there is a need to know if the employer has modified work available. In that situation the employer is to be provided with medical information which discloses the extent of the disability for which the modification is sought. Presumably only that information which is necessary to make this decision is to be provided to the employer.
Failure to adhere to the new amendments as outlined would most probably subject the employer to a potential civil action for invasion of privacy.
There is some question as to the legality of this amendment. It would appear to be an infringement upon the employer's right of due process to be a apprised of any claim being made against them. There would also further be a question as to the legality of limiting lawyers who presumably are working for the employer from in fact disclosing information regarding the injury to the employer because it would in fact disclose medical information. Bear in mind, the section not only precludes giving reports to the employer, but it precludes giving information about the medical condition. This does in fact preclude communication as between the defense attorneys and the employer.
§3762. Employer's right to information and documents affecting premium - Exceptions; disclosure of employee's medical information prohibited - Exceptions.
(a) Except as provided in subdivisions (b) and (c), the insurer shall discuss all elements of the claim file that affect the employer's premium with the employer, and shall supply copies of the documents that affect the premium at the employer's expense during reasonable business hours.
(b) The right provided by this section shall not extend to any document that the insurer is prohibited from disclosing to the employer under the attorney-client privilege, any other applicable privilege, or statutory prohibition upon disclosure, or under Section 1877.4 of the Insurance Code.
(c) An insurer, third-party administrator retained by a self-insured employer pursuant to Section 3702.1 to administer the employer's workers' compensation claims, and those employees and agents specified by a self-insured employer to administer the employer's workers' compensation claims, are prohibited from disclosing or causing to be disclosed to an employer, any medical information, as defined in subdivision (b) of Section 56.05 of the Civil Code, about an employee who has filed a workers' compensation claim, except as follows:
(1) If the diagnosis of the injury for which workers' compensation is claimed would affect the employer's premium, than an insurer may disclose that diagnosis pursuant to subdivision (1).
(2) Medical information regarding the injury for which workers' compensation is claimed that is necessary for the employer to have in order for the employer to modify the employee's work duties. Leg.H. 1993 ch. 121. effective July 16, 1993.ch.1242. 199 ch. 766. 1993 Note: Section 3762, as added by ch. 121, applies only to injured occurring on or after January 1, 1994. Status. 1993 ch. 121 §77.
Ref.: Herlick §3.2.
DEPARTMENT OF MANAGED CARE WILL NOW ACCEPT APPLICATIONS FOR CERTIFICATION AS A HEALTH CARE ORGANIZATION INSTEAD OF THE DEPARTMENT OF CORPORATIONS
Labor Code §4600.5 has been changed to reflect that it is the Department of Managed Care which will accept the applications for certification as a health care organization rather than the Department of Corporations.
TREATING PHYSICIAN BILLS MUST BE OBJECTED TO WITHIN 30 DAYS AFTER THE EMPLOYER RECEIVES THE LIEN
Labor Code §4603.2 has been amended to favor the treating physician who has been selected under Labor Code §4600. The bill from the designated physician under Labor Code §4600 must be objected to within 30 days. The employer still is allowed 60 days to make payment on the bill. However, if no objections were made within the first 30 days you don't have a basis to make an objection now.
§4603.2 Notice to employer of selected physician; reports to employer; payment by employer; penalties and liabilities for late payment.
(a) Upon selecting a physician pursuant to Section 4600, the employee or physician shall forthwith notify the employer of the name and address of the physician. The physician shall submit a report to the employer within five working days from the date of the initial examination and shall submit periodic reports at intervals that may be prescribed by rules and regulations adopted by the administrative director.
(b) Payment for medical treatment provided or authorized by the treating physician selected by the employee or designated by the employer shall be made by the employer within 60 days after receipt of each separate, itemized billing, together with any required reports. If the billing or a portion thereof is contested, denied, or considered incomplete, the physician shall be notified, in writing, that the billing is contested, denied, or considered incomplete, within 30 working days after receipt of the billing by the employer. A notice that a billing is incomplete shall state all additional information required to make a decision....
THE LIST OF PUBLIC EMPLOYEES ENTITLED TO FULL PAID LEAVE HAS BEEN EXPANDED
Labor Code §4850 has been amended to add various groups of employees who are entitled to paid leave of absence. Now county probation officers, group counselors, juvenile service officers or any officers or employees of a probation office, any peace officers under §830.31 of the Penal Code or employed on a regular full-time basis are now all entitled for §4850 pay. There were specific exclusions. The exclusions are employees of a county probation office whose principal duties are those of a telephone operator, clerk, stenographer, machinist, mechanic, or otherwise, and whose functions do not clearly come within the scope of active law enforcement service.
BENEFITS FOR FIREFIGHTERS, SHERIFF'S AND PROBATION OFFICE EMPLOYEES, AND OTHER SPECIFIED EMPLOYEES OF SAN LUIS OBISPO COUNTY HAS BEEN AMENDED
Benefits for county probation officers, group counselors, juvenile service officer or officer or employee of the probation office in the County of San Luis Obispo has been included in the change. The change was required because apparently some employees of San Luis Obispo County are not part of the public employees retirement system or subject to the County Employees Retirement Law of 1937.
SOME CLARIFICATION HAS BEEN GIVEN REGARDING DISCLOSURE REQUIREMENTS FOR THOSE ADVERTISING OF SOLICITING WORKERS' COMPENSATION CLAIMS
Labor Code §5433 has been amended ever so slightly. There has been clarification as between advertisement and advertiser. The changes actually make more sense. The changes are with the examples of misleading materials. The code now reads that misleading materials include where the advertisement (as opposed to the advertiser) in some way claims to be provided by or endorsed by governmental agency or charitable institution. The other example of misleading information is where the advertiser (as opposed to the advertisement) is the same as, is connected with, or is endorsed by a governmental agency or charitable institution.
SAMPLES OF PRIMARY TREATING PHYSICIAN PROGRESS REPORTS AND P&S REPORTS HAVE NOW BEEN SUPPLIED
Administrative Rule 9785.2 and §9785.3 now provide sample reports. §9785.2 gives a sample primary treating physician's progress report. §9785.3 gives a sample primary treating physician's permanent and stationary report.
It is apparent that the proposed forms are an attempt to obtain some uniformity from the treating physicians. The forms are essentially "paint by numbers" method for the doctor to respond. These forms if used properly should give much more detail in the P&S reports from the primary treating physician which all too often are only a few lines in length.
The Workers' Compensation Information System (WCIC) is coming into effect. As of March 1, 2000 each claims administrator shall submit to the WCIC within 5 business days about the claim. The changes are reflected in Administrative Rules §§9700 through 9704.
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KENNITH L. PETERSON
949 East Yorba Linda Boulevard
Placentia, California 92870
(714) 572-1080
Other Offices:
PMB 437
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