As reported by Work Comp Central, the California Senate has passed SB 335 (on a vote of 29 to 10), which if enacted, would cause a major disruption and attendant challenges in how claim administrators handle and conduct investigations, under Lab C 5412. As there were no amendments to this bill, and over substantial concerns voiced by various stakeholders, including the CWCI, we believe the chances of Assembly passage and enactment are strong, so now is the time to get ready.
This bill reduces the investigative time, from the date upon which a Claim Form is served upon the employer, from 90 days to 45 days, in non-presumption claims. For claims involving public safety officers, for which there is a presumption of injury under Lab C 3212-3213.2, the time is shortened to 30 days.
It is our position that this bill, if passed in its current form, would result in a deprivation of rights and specifically a denial of due process for employers and claims administrators. Practically, it is difficult now to conduct a thorough AOE/COE investigation within the context of the 90-day period. This bill reduces that time by 50%.
- DEPOSITION? A deposition of an injured worker can be set upon 10 days written notice, plus 5 days for mailing. The 5 days disappears if the notice is served personally upon applicant’s attorney. However, unless applicant attorneys “agree” to a date, simply setting the deposition “on notice” does not make it certain that applicant and his/her attorney will appear. So, securing a deposition date set upon agreement within 45 days from the date claim form is “served” is uncertain at best and unlikely in many cases.
- CONSULTING REPORT? The employer can attempt to obtain a consulting medical report but expect applicant attorneys to object and therefore instruct their clients not to appear. Filing a DOR, even for Expedited Hearing, would likely not result in an order from a WCJ before 60 days, so the issue would become moot before the fact.
- QME? Under the regular, pre-COVID 10, statues and regulations, a Lab C 4060 PQME, starts with a 10-day letter (plus 5 for mailing) so the claims administrator cannot request a panel until the 16th Then the “striking process” commences over another 15-day period (10 days plus mailing time from applicant attorney. That is 25 days right there and then the PQME has 60 days to set the examination. Even if by some miracle, the examination could take place within 40 days, the PQME has 30 days within which to produce the report. That is 70 days. There is no way to expect a PQME within the 45-day period, under this bill.
WHAT WE WILL OFFER IF THIS BILL BECOMES NEW LAW:
- HELP WITH DENIAL NOTICES: OUR FIRM WILL BE READY TO ASSIST OUR CLIENTS IN PREPARING DENIAL-OF-CLAIM BENEFIT NOTICES, TO INCORPORATE THE RESERVATION OF ALL CLAIMS OF DENIAL OF DUE PROCESS.
- SAME DAY ACTION: ANY NEW CLAIM REFERRAL WILL BE OPENED, ACKNOWLEGED AND WE WILL FILE OUR APPEARANCE IN EAMS, AS WELL AS SET THE APPLICANT DEPOSITION ON NOTICE, UNLESS WE CAN OTHERWISE SECURE AGEEMENT WITH APPLICANT’S COUNSEL.
- TRAINING: WE WILL PROVIDE TRAINING ON HOW TO HANDLE AND CONDUCT INVESTIGATIONS WITHIN THE NEW SHORTENED TIME PERIODS.
Let is hope that this bill will see the light of reason rather than the light of enactment.
Thanks, and stay safe and well.