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AB-44 Workers’ compensation: medical treatment: terrorist attacks: workplace violence.(2017-2018)

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Date Published: 07/17/2017 10:00 AM
AB44:v95#DOCUMENT

Amended  IN  Senate  July 17, 2017
Amended  IN  Senate  June 29, 2017
Amended  IN  Assembly  April 20, 2017
Amended  IN  Assembly  April 06, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 44


Introduced by Assembly Member Reyes
(Coauthors: Assembly Members Aguiar-Curry, Chu, Cooley, Gipson, Holden, Kalra, Limón, Medina, Rodriguez, Rubio, Mark Stone, and Voepel)
(Coauthor: Senator Coauthors: Senators Leyva and Stone)

December 05, 2016


An act to amend Section 4656 of, and to add Section 4600.05 to, to the Labor Code, relating to workers’ compensation.


LEGISLATIVE COUNSEL'S DIGEST


AB 44, as amended, Reyes. Workers’ compensation: medical treatment: terrorist attacks: workplace violence.
Existing law establishes a workers’ compensation system, administered by the Administrative Director of the Division of Workers’ Compensation, to compensate an employee for injuries sustained in the course of his or her employment. Under existing law, an employer must provide reasonably required treatments, including, but not limited to, medical and surgical treatment, to cure or relieve an employee’s injuries sustained in the course of his or her employment. Existing law requires an employer to establish a utilization review process to review, approve, modify, or deny a treatment claim.
This bill would require employers to provide immediately accessible advocacy services to employees, including first responders, employees injured in the course of employment by an act of domestic terrorism, as defined, and would require employer-appointed advocates to assist employees and others to obtain approval for medical treatments, as specified. The bill would establish a disputable presumption that physician-requested treatment is appropriate, set parameters for approving or denying treatment, and create processes for when treatment is denied. The bill would apply retroactively to employees and first responders injured in an act of domestic terrorism before January 1, 2018. specified, and would require an employer to provide a prescribed notice to claimants, as specified. The bill would make its provisions applicable only if the Governor declares a state of emergency, as defined, in connection with the act of domestic terrorism.

Existing worker’s compensation law prohibits aggregate disability payments for a single injury occurring on or after April 19, 2004, causing temporary disability from extending for more than 104 compensable weeks, as specified. Existing law lists exempted injuries and conditions for which aggregate disability payments may be made for not more than 240 compensable weeks within a 5-year period.

This bill would add injuries arising from an act of domestic terrorism to the list of injuries and conditions for which aggregate disability payments may be made for not more than 240 compensable weeks within a 5-year period.

This bill would make related legislative findings and declarations.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 The Legislature finds and declares all of the following:
(a) Domestic terrorist attacks, such as the December 2, 2015, attack on the Inland Regional Center in San Bernardino, with the number and severity of the injuries inflicted upon people at work, can present unique issues for the workers’ compensation system.
(b) Victims of domestic terrorist attacks who are at work at the time of injury are entitled to the full benefits of the workers’ compensation laws of this state, including treatment for all diagnosed physical and mental injuries to the full extent authorized by the law.
(c) Treatment provided to all injured workers, including mental health treatment and counseling services for psychological injuries and post-traumatic stress disorder, is provided by health care providers who are trained and qualified to treat those injuries, and providers who are not competent on the basis of training and experience to treat specific patients referred to the provider have a duty under existing law to refer the patient to a qualified provider.
(d) Because of the unique circumstances surrounding the number and severity of injuries that can be caused by a single domestic terrorist act, and the extent to which the needs to provide this treatment quickly and comprehensively in potentially small service markets, it is appropriate to provide workers with injuries that result from a domestic terrorist attack with additional advocacy services, as provided by this bill.

SECTION 1.SEC. 2.

 Section 4600.05 is added to the Labor Code, to read:

4600.05.
 (a) All employers, as defined in Section 3300, shall provide immediately accessible advocacy services for employees, including first responders, employees injured in the course of employment by an act of domestic terrorism, as defined in Section 2331 of Title 18 of the United States Code, to assist injured employees in obtaining medical treatment and to assist providers of medical services in seeking authorization and payment of medical treatment. These advocacy services may be provided by the employer, the employer’s insurer, or the employer’s claims administrator.

(b)Medical treatment, including psychological counseling, requested by a physician treating an employee pursuant to subdivision (a) shall be presumed to be consistent with the guidelines adopted by the administrative director pursuant to Section 5307.27. This presumption is disputable and may be controverted by other evidence, but unless so controverted, the independent medical reviewer and the appeals board are bound to find in accordance with it. The absence of documentation is not sufficient to rebut this presumption if the documentation is in the possession of, or available to, the employer, the employer’s insurer, or the employer’s claims administrator.

(c)The determination to authorize or deny requested medical treatment shall be made in a timely fashion that is appropriate for the nature of the employee’s condition, not to exceed five working days from the receipt of the request for authorization. If the treatment is denied, an independent medical review determination shall be issued no more than 45 days from the receipt of the request for authorization.

(d)The advocate provided by the employer pursuant to subdivision (a) shall assist the employee, the employee’s physician, and the employee’s representative, if any, to obtain authorization for the requested medical treatment, shall ensure the independent medical review process described in subdivision (c) is initiated in a timely manner, and shall provide the independent medical reviewer a narrative explaining why the treatment should be authorized, including citing relevant medical records.

(e)If the treatment is denied, or if the employer, insurer, or advocate provided by the employer pursuant to subdivision (a) fails to meet the timeframes or any other requirements of this section, the appeals board shall determine whether the requested treatment and all subsequently requested treatment and all subsequently requested treatment is medically necessary. An expedited hearing shall be held and the determination shall be made and filed within 30 days after the declaration of readiness is filed.

(f)This section is not intended to alter the conditions for compensability of an injury, as defined in Section 3600.

(g)The time limits in this section are mandatory. To the extent that the provisions of this section conflict with the provisions of Sections 4610 and 4610.5, the provisions in this section shall control.

(h)The administrative director shall adopt regulations to implement this section no later than July 1, 2018.

(i)This section, and subparagraph (J) of paragraph (3) of subdivision (c) of Section 4656 shall apply retroactively to the employees and first responders injured in the terrorist attack in San Bernardino on December 2, 2015, and any other employees or first responders injured by an act of domestic terrorism that occurred before January 1, 2018.

(b) (1) This section shall apply only if the Governor has declared a state of emergency pursuant to subdivision (b) of Section 8558 of the Government Code in connection with the act of domestic terrorism.
(2) Upon the issuance of a declaration pursuant to paragraph (1), an employer that has a pending claim for compensation based on the acts that resulted in the declaration shall provide a notice within three days to the claimant advising the claimant that services provided pursuant to subdivision (a) are available, and that counseling and mental health services for psychological injuries are among the benefits available to claimants. In the case of a claim subject to this section that is filed after the declaration, the employer shall provide the notice to the claimant within three days. The notice shall be in the form adopted by the administrative director pursuant to subdivision (d).
(c) Nothing in this section alters the conditions for compensability of an injury, as described in Section 3600.
(d) The administrative director shall adopt regulations to implement this section.

SEC. 2.Section 4656 of the Labor Code is amended to read:
4656.

(a)Aggregate disability payments for a single injury occurring prior to January 1, 1979, causing temporary disability shall not extend for more than 240 compensable weeks within a period of five years from the date of the injury.

(b)Aggregate disability payments for a single injury occurring on or after January 1, 1979, and prior to April 19, 2004, causing temporary partial disability shall not extend for more than 240 compensable weeks within a period of five years from the date of the injury.

(c)(1)Aggregate disability payments for a single injury occurring on or after April 19, 2004, causing temporary disability shall not extend for more than 104 compensable weeks within a period of two years from the date of commencement of temporary disability payment.

(2)Aggregate disability payments for a single injury occurring on or after January 1, 2008, causing temporary disability shall not extend for more than 104 compensable weeks within a period of five years from the date of injury.

(3)Notwithstanding paragraphs (1) and (2), for an employee who suffers from the following injuries or conditions, aggregate disability payments for a single injury occurring on or after April 19, 2004, causing temporary disability shall not extend for more than 240 compensable weeks within a period of five years from the date of the injury:

(A)Acute and chronic hepatitis B.

(B)Acute and chronic hepatitis C.

(C)Amputations.

(D)Severe burns.

(E)Human immunodeficiency virus (HIV).

(F)High-velocity eye injuries.

(G)Chemical burns to the eyes.

(H)Pulmonary fibrosis.

(I)Chronic lung disease.

(J)Injuries arising from an act of domestic terrorism, as described in Section 4600.05.