MICHAEL SULLIVAN & ASSOCIATES BLOG

Medicare is a secondary payor. That is, it does not have primary payment responsibility for its beneficiaries when another entity is responsible for paying for medical care before Medicare. Workers' compensation is a primary payor for work-related illnesses or injuries. Medicare will not pay for a beneficiary's medical expenses when payment has been made or can reasonably be expected to be made by a workers' compensation insurer.

Medicare, however, may pay for medical services when the primary payor has not made or cannot reasonably be expected to make payment for them promptly. Those Medicare payments are referred to as “conditional payments,” because Medicare pays under the condition that it is reimbursed when the beneficiary gets a workers' compensation settlement, judgment, award or other payment. Medicare is required by statute to seek reimbursement for conditional payments related to the settlement.

The 2024 California legislative season is over. The Legislature had until Aug. 31, 2024, to pass bills, and Gov. Gavin Newsom had until Sept. 30, 2024, to sign or veto them. The bills signed by the governor take effect Jan. 1, 2025.

The 2024 legislative session was fairly quiet as it relates to the California workers' compensation process. Aside from the electronic signature provision, it is probably more notable for the bills that were vetoed than those signed into law.

Labor Code 4610(i)(1) normally requires a utilization review (UR) determination to be made within "five normal business days from the receipt of a request for authorization for medical treatment and supporting information reasonably necessary to make the determination, but in no event more than 14 days from the date of the medical treatment recommendation by the physician." But LC 4610(i)(3) requires an expedited review when the employee faces an "imminent and serious threat to his or her health, ... or the normal timeframe for the decision-making process ... would be detrimental to the employee’s life or health or could jeopardize the employee’s ability to regain maximum function." In those situations, the UR decision must be made in a timely fashion "not to exceed 72 hours after receipt of the information reasonably necessary to make the determination."

For more than 30 years, the Workers' Compensation Appeals Board (WCAB) relied on Shipley v. WCAB (1992) 7 Cal. App. 4th 1104 to decide petitions for reconsideration, even if it did not act timely on a petition pursuant to former Labor Code § 5909. That statute stated, "A petition for reconsideration is deemed to have been denied by the appeals board unless it is acted upon within 60 days from the date of filing." Based on Shipley, the WCAB generally held that if a petition was not considered within the time limit of LC 5909 due to the WCAB's own inadvertent error, it still may decide the merits of the petition, even if the 60-day time period has elapsed.

Labor Code § 4664(c)(1) states, "The accumulation of all permanent disability awards issued with respect to any one region of the body in favor of one individual employee shall not exceed 100 percent over the employee’s lifetime unless the employee’s injury or illness is conclusively presumed to be total in character pursuant to Section 4662." The regions of the body for the purposes of the statute are:

Labor Code § 3600(a)(8) is an affirmative defense that bars a claim for compensation when the injury is "caused by the commission of a felony, or a crime which is punishable as specified in subdivision (b) of Section 17 of the Penal Code, by the injured employee, for which he or she has been convicted." That defense was enacted in 1986 and originally barred an employee's injury "caused by the commission of a felonious act by the injured employee, for which he or she has been convicted." The statute was amended to its current form in 1993.

Under the commercial traveler rule, an employee traveling on the employer's business is regarded as acting within the course of employment during the entire period of his or her travel. Workers' compensation coverage applies to the travel itself and also to other aspects of the trip reasonably necessary for the sustenance, comfort and safety of the employee. But the commercial traveler rule does not cover all of an employee's activities. Personal activity not contemplated by the employer might constitute a material departure from the course of employment. (Latourette v. Workers' Comp. Appeals Bd. (1998) 17 Cal. 4th 644, 652.)

In 2013, the WCAB held in Athens Administrators v. WCAB (Kite) that an injured worker's disabilities are not required to be combined using the Combined Values Chart (CVC). The WCAB explained that although the AMA guides favor the combined values method, "physicians may, under certain circumstances, employ a different method of determining impairment if they remain within the four corners of the AMA Guides."

For more than 10 years, Kite became shorthand for combining disabilities by simple addition. Although the case is not binding, such addition is a common method accepted for combining an injured worker's disabilities. Over the years, many cases have applied Kite, but none of the cases was binding nor did any fully elaborate on the circumstances when disabilities could be combined by addition, rather than by using the CVC. The cases also largely depended on how well the physicians explained their opinions.