Special Report: 2022 California Workers' Compensation Bills

The 2022 legislative season is over. The Legislature had until Aug 31, 2022 to pass bills, and Governor Gavin Newsom had until Sept. 30, 2022 to sign or veto bills. The bills signed by the Governor take effect on Jan. 1, 2023. Below is a list of bills affecting California workers' compensation.

BILLS SIGNED INTO LAW

AB 1751 — COVID-19 Presumptions. The bill extends the COVID-19 presumptions in LC 3212.86, LC 3212.87, and LC 3212.88, until Jan. 1, 2024. The presumptions were set to expire on Jan. 1, 2023. The bill also expands the presumption in LC 3212.87, which is applicable to firefighters and police officers, to include active firefighting members of a fire department at the State Department of State Hospitals, the State Department of Developmental Services, the Military Department, and the Department of Veterans Affairs and to officers of a state hospital under the jurisdiction of the State Department of State Hospitals and the State Department of Developmental Services. For further discussion, see Sullivan on Comp (SOC) Section 5.19 Presumption of Injury –– COVID-19.

AB 2148 — Workers’ Compensation Disability Payments. The bill extends existing law which allows an employer to commence a program under which disability indemnity payments are deposited in a prepaid card account for employees until Jan. 1, 2024. The program was set to expire on Jan. 1, 2023. For further discussion, see SOC Section 9.18 Method of Payment.

AB 2848 — Medical Treatment Study. This bill requires the administrative director to contract with an outside independent research organization to evaluate and report on the impact of the provision of medical treatment within the first 30 days after a claim is filed for those claims filed between January 1, 2017, and January 1, 2021. The bill would require the report to be completed before July 1, 2023. For further discussion, see SOC Section 7.36 Utilization Review — Procedure.

SB 1002 — Licensed Clinical Social Workers. The bill expands the meaning of medical treatment to include the services of a licensed clinical social worker (LCSW), and would authorize an employer to provide an employee with access to an LCSW. It also authorizes medical provider networks (MPNs) to add LCSWs to the physician providers listing. An LCSW is authorized treat or evaluate an injured worker only upon referral from a physician and is prohibited from determining disability. For further discussion, see SOC Section 7.12 Treatment by Authorized Physician.

SB 1127 — Liability Presumptions. The bill makes several significant changes to the statutory presumptions applicable to specified members of law enforcement or a specified first responders. The bill provides:

1. For specified firefighters and peace officers claiming illness or injury related to cancer pursuant to LC 3212.1, the number of compensable weeks of temporary disability increases to 240 for injuries occurring on or after Jan. 1, 2023. For further discussion, see SOC Section 9.14 Time Limit on Payment on or After April 19, 2004.
2. For injuries or illnesses defined in LC 3212 to LC 3213.2, if liability is not rejected within 75 days after the date the claim form is filed pursuant to LC 5401, the injury is be presumed compensable and is rebuttable only by evidence discovered subsequent to the 75-day period. The 75-day investigation period applies to the statutory presumptions for firefighters, peace officers, and first responders, but does not apply to other claims, which are still subject to a 90-day investigation period, or claims covered by the COVID-19 presumptions, which already have shorter investigation periods. For further discussion, see SOC Section 5.16 Presumption of Injury –– 90-Day Rule.
3. For injuries or illness as defined in LC 3212 to LC 3213.2, inclusive, the amount of the penalty for benefits unreasonably delayed due to a rejection of liability, shall be five times the amount of the benefits unreasonably delayed up fifty thousand dollars ($50,000). Such penalties will be reported to the Audit Unit within the Division of Workers’ Compensation. These penalties apply to all dates injury, without regard to whether the injury occurs before, on, or after the operative date of Jan. 1, 2023. For further discussion, see SOC Section 5.17 Presumption of Injury –– Public Employee in General.

SB 1242 — Fraud Reporting. The bill creates a new requirement for agents and brokers to report suspected insurance fraud. Agents and brokers will not be subject to any civil liability if they acted in good faith, without malice, and reasonably believed that the action taken was warranted by the then-known facts, obtained by reasonable efforts. For further discussion, see SOC Section 3.65 Fraud — Reporting.

BILLS VETOED

The Governor also vetoed two significant workers' compensation bills. They are:

AB 334 — Skin Cancer. The bill would have expanded the skin cancer presumption in LC 3212.11 to certain peace officers of the Department of Fish and Wildlife and the Department of Parks and Recreation. In his veto message, the Governor explained that presumptions should be based unique hazards or proven difficulty of establishing a direct relationship between a disease or injury and the employee's work and that the bill was not supported by clear and compelling evidence.

SB 284 — Post-Traumatic Stress. The bill would have expanded the presumption in LC 3212.15 that post-traumatic stress is compensable to additional classes of active firefighting members and peace officers. The Governor believed extending the presumption to significant classes of employees before any studies have been conducted on the existing class for whom the presumption is temporarily in place could set a dangerous precedent.