A Review of Key Legislative Changes - Disability...

Copyright 2016. Disability Management Employer Coalition (DMEC). All rights reserved.

A Review of Key Legislative Changes: The Impacts on Staying at and Returning to Work

for California Employers and Employees

October 26, 2016

A Tri-Chapter Program – Sponsored By:

Sacramento Chapter

San Francisco/Northern California Chapter

San Jose Chapter

www.dmec.org


WELCOME

Earthquake Duck, Cover & Hold

Emergency – Dial “0” Conference center dials 911 (Susan Jue)

Meet & Greet EMT Emergency Medical Team (Susan Jue)

Administer CPR Certified Pulmonary Resuscitation

(Rhonda Stribling, RN)

Obtain AED Automated External Defibrillator

(Jennifer Jordan, RN)

Evacuation Lead to Exit and Assembly Point (Donna Tong)

Sweep Room Ensure everyone evacuates meeting space (Stacey Wells)

Assembly Point Parking Lot (Donna Tong)

Active Shooter Get Out, Hide Out, Take Out

Restrooms Women’s & Men’s outside room to right & across lobby

Safety & Logistics – Susan Cunningham HR Business Partner, Pacific Gas & Electric Company

President, San Francisco/Northern California Chapter


WELCOME

Background of Tri-Chapter Event

Roberta Etcheverry

Chief Executive Officer, DMG

President, Sacramento Chapter


WELCOME

Overview of DMEC - Local Chapters

Stan Scoscia

Account Manager, Aetna Life & Disability

Program Chair, San Jose Chapter


WELCOME

Overview of DMEC - National

Tasha Patterson, Marketing Manager

DMEC National

NEW EEOC RETALIATION

GUIDANCE;

MEDICAL LEAVES AND THE

ADA

William R. Tamayo, District Director

United States Equal Employment

Opportunity Commission

6

Background

• Served as Regional Attorney overseeing the litigation and

legal program for EEOC San Francisco District: June

1995 through June 2015;

• Filed over 325 cases; recovered over $300 million

• 1995-2005: Northern and Central California, Hawaii,

American Samoa, Guam & Commonwealth of Northern

Mariana Islands

• 2006-present: Northern CA, Northern Nevada, Oregon,

Washington, Alaska, Idaho & Montana

• Appointed District Director 2015: Oversee investigations,

operations, and administration; Sign the Letters of

Determination (Findings of Discrimination)

7

The New EEOC Retaliation Guidance

• August 2016, EEOC issued new Guidance on Retaliation

highlighting employer’s responsibility; see at

www.eeoc.gov

• “…fear of retaliation is the leading reason by people

stay silent instead of voicing their concerns about

bias and discrimination”, Crawford v. Metro Govt of

Nashville (555 U.S. 271, 279)

• 7 U.S. Supreme Court decisions on retaliation since the

1998 Guidance

8

http://www.eeoc.gov/

The New EEOC Guidance

• Beginning FY 2009, retaliation charges surpassed race

discrimination charges

• FY2015: Retaliation charges were included in 44.5% of

all private sector and state/local government charges (up

from 41% in FY2014)

• Federal sector: Between FY2009 and 2015, retaliation

findings comprised between 42% and 53% of all findings

of EEO violations.

• Alarming trend that employers want to chill out charging

parties from pursuing their civil rights claims

9

Retaliation & Harassment

• Virtually every EEOC lawsuit alleging sexual, race or

national origin harassment has a companion retaliation

claim.

• Many victims of sexual harassment don’t file a charge of

harassment until after they have been fired or

demoted or had their hours reduced because they

protested the harassment.

• Consequence: makes victims of harassment, in

particular, stay silent thereby leading to more

assaults and violations.

10

Some Adverse Actions

• - Terminating a union grievance process

• - Stopping an internal investigation to a harassment

complaint after a charge is filed with the EEOC, (“we’re

not going to do anything since she already filed a charge

with the EEOC”); may impact affirmative defense of

employer; creates another claim in addition to the

harassment claim;

• - telling co-employees that CP filed a charge which could

lead to further harassment, isolation, etc.

11

Adverse Action

• Can an action be materially adverse even if it does not

stop the employee from asserting her EEO rights?

• Yes. If the employer’s action would be reasonably likely

to deter protected activity, it could be retaliation even if it

does not actually stop the employee in a particular case

from asserting her rights.

• Extent of harm only goes to the issue of relief and

damages.

12

• I’m with the State of California, and if I ever concluded

that one of the higher-ups sexually harassed an

employee, I’d be fired!

Statement of HR employee in front of 80 attendees at

EEOC TAPS Workshop on “Tips on Investigating Sexual

Harassment Claims” prompting nods from several

attendees (Monterey, California 2000)

Why Does Harassment Happen?

13

How Does This Happen?

• I’ve conducted over 100 harassment investigations

and I’ve never sustained one complaint.

• Statement of a company’s internal investigator in front of

70 attendees at EEOC TAPS Workshop on “Tips on

Investigating Sexual Harassment Claims” (San Jose,

California 2012)

14

Coverage: Managers, HR and the so-

called “Manager Rule” • EEOC: Managers, HR personnel, EEO advisors are

covered; purpose of opposition clause is promoted

by protecting all communications about potential EEO

violations

• EEOC: Managerial employee with duty to report or

investigate discrimination must still show

“opposition”;

15

Coverage: Personnel Manager

• Personnel Manager: McKenzie reported potential FLSA

violations; terminated alleged for notarizing “sex contract”

• Jury finds PM fired in retaliation for reporting FLSA

violations; judge grants Def JMOL.

• Court: PM did not engage in protected activity when

reporting violations, merely performing her job, did not

take position adverse to company McKenzie v. Renberg’s,

Inc., 94 F. 3d 1478 (10th Cir. 1996)

16

Coverage: EEO Director

• EEOC: HR personnel, EEO Director are protected when

they “step outside” that role.,

• Littlejohn v. City of New York, 795 F.3d 297, 318 (2nd

Cir. 2015) (internal EEO director does not engage in

protected opposition by fulfilling a job duty to report or

investigate other employees’ discrimination complaint, but

actively supporting other employees in exercising

Title VII rights, personally complaining, or being

critical of discriminatory practices is opposition)

17

Coverage: Loss Prevention Coach

• Loss Prevention Coach: Brush interviewed employee

about harassment; found employee not forthcoming. On

her own, Brush interviewed ee ALONE and found out

she had been raped repeatedly by manager. Reported

this to HR and repeatedly told HR to call police despite

ee’s desires not to involve police or husband; Harasser

terminated; Brush fired for violating policy and for pushing

company to report to police.

18

Coverage: (cont.)

No protected activity when Brush told company to report to

police after company already fired harasser and employee

did not want husband or police to know about rapes.

Compare Crawford: describing harassing acts pursuant

to investigation is expressing opposition

Brush v. Sears Holdings Corp., 466 F. App’x 781 (11th

Cir. 2012), cert denied 133 S. Ct. 981 (2013) (“performing

job of reporting and urging more action” is not protected

activity”)

19

Coverage: EAP Counselor

• DeMasters sued for retaliation. Case dismissed.

• Lower court: DeMasters not involved in the EEOC charge

or lawsuit as a witness (“no participation”); DeMasters

statements to Doe during EAP not oppositional activity;

criticisms of HR’s handling was not “oppositional activity”.

(citing Brush)

• But REVERSED ON APPEAL; Manager Rule criticized;

DeMasters is covered;

20

Coverage: EAP Counselor (cont.)

• Need to look at all the acts together, not separately

• Demasters conveyed to ER that it was subjecting Doe to

unlawful conduct, told ER about harassing conduct,

advocated for Doe, arranged for Doe to sign EAP release

so he could speak to HR, relayed complaint which led to

termination of harasser.

• Worked with EAP colleagues to report further harassment

• DeMasters v. Carilion, 796 F. 3d 409 (4th Cir. 2015)

21

Coverage: Company’s General Counsel

• General Counsel DeSpain introduced candidate for

position to Owner; Owner, “BUT he’s Hispanic” “what

part of NO don’t you understand?”; DeSpain tells exec

that failure to hire or consider Hispanic candidate may be

discriminatory; terminated next day; sued for retaliation

• SJ denied: jury needs to decide whether DeSpain was

acting as GC or personally opposed to discrimination

• DeSpain v. Evergreen Int’l Avia, 2013 WL 594895 (D.

Or. Feb. 14, 2013)

22

Retaliation Guidance:

Interference with ADA Rights • ADA prohibits not only retaliation but also “interference”

with statutory rights

• Interference is broader than retaliation.

• It is unlawful to coerce, intimidate, threaten, or otherwise

interfere with an individual's exercise of ADA rights, or

with an individual assisting another to exercise ADA

rights.

• Some employer acts may be both retaliation and

interference, or may overlap with unlawful denial of

accommodation or other ADA claims.

23

Examples of Interference

• Coercing individual to relinquish or forgo accommodation to which he

is otherwise entitled

• Intimidating applicant from requesting accommodation for application

process by indicating such a request will result in not being hired

• Threatening employee with termination or other adverse treatment if

he does not “voluntarily” submit to a medical exam or inquiry that is

otherwise not allowed under ADA

Note: A threat does not have to be carried out to violate the

interference provision, and an individual does not actually have to be

deterred from exercising or enjoying ADA rights in order for the

interference to be actionable.

24

Examples of Interference

• Issuing policy/requirement that purports to limit

employees’ right to invoke ADA protections (e.g., a fixed

leave policy that states “no exceptions will be made for

any reason”)

• Interfering with former employee's right to file an ADA

lawsuit against the former employer by stating negative

job reference will be given if suit is filed

• Subjecting employee to adverse treatment because he

assisted a coworker in requesting reasonable

accommodation.

25

26

Young v. UPS, 135 Sup. Ct. 1338 (2015)

• Facts: Employer’s light duty policy was limited to

individuals injured on the job, those with disabilities, and

those who lost Department of Transportation certification to

drive commercial motor vehicles.

• Issue: Whether, and in what circumstances, an employer

that provides work accommodations to non-pregnant

employees with work limitations is required under Title VII

(PDA) to provide comparable work accommodations to

pregnant employees who are “similar in their ability or

inability to work.”

• Question in Young was limited to the scope of the PDA,

not the ADA.

Young v. UPS, cont’d

• Held:

• Employer light duty policies that do not explicitly exclude pregnant employees may still violate the PDA if they impose significant burdens on pregnant employees that cannot be supported by a sufficiently strong justification; and

• Evidence of an employer policy or practice of providing light duty to a large percentage of nonpregnant employees while failing to provide light duty to a large percentage of pregnant workers might establish that the policy or practice significantly burdens pregnant workers.

27

Legg v. Ulster Cty., 820 F.3d 67 (2d Cir. 2016)

• Plaintiff, a corrections officer at the county jail, filed suit

alleging unlawful pregnancy discrimination when the County

denied her request for an accommodation citing its policy that

limited light duty to employees injured on the job.

• Court remanded, holding that plaintiff was entitled to have her

pregnancy discrimination claim decided by a jury.

• Applying Young, court held that a reasonable jury could find

that (1) the County’s policy imposed a significant burden on

pregnant employees because it categorically denied light

duty to pregnant workers; (2) the County’s reasons for

denying the plaintiff light duty were not sufficiently strong;

and (3) cost was a factor in the County’s decision to deny

the accommodation.

28

• EEOC regulations still make a distinction between

“normal” pregnancies and those with complications.

• See EEOC’s Questions and Answers on the Final

Rule Implementing the Amended ADA, at Question

23, available at

http://www.eeoc.gov/laws/regulations/ada_qa_final_r

ule.cfm

• Generally, under the ADAAA’s expanded rules of

construction and definitions, many more pregnancy-

related conditions now may qualify as “physical

impairments” supporting “actual disability” and “record

of such disability” claims.

29

http://www.eeoc.gov/laws/regulations/ada_qa_final_rule.cfm

http://www.eeoc.gov/laws/regulations/ada_qa_final_rule.cfm

• Modification of job duties, such as provision of

“light duty” or redistribution of marginal functions

• Modification of work hours

• Relocation to a different work area

• More frequent breaks

• Modification of policies – permission to use a

stool while on duty or to drink from a water bottle

• Additional leave

30

Varone v. Great Wolf Lodge of the Poconos, L.L.C.,

2016 WL 1393393 (M.D. Pa. 2016)

• Employer denied massage therapist’s accommodation request for

short breaks between massages to help with her pregnancy-

related impairment.

• Court denied employer’s motion to dismiss, holding that plaintiff’s

allegations were sufficient to state a claim that employer

discriminated against her based on her pregnancy-related

impairment in violation of the ADA.

• Plaintiff’s job required her to stand for long periods of time,

causing cramping and pain throughout her stomach and chest

that limited her ability to perform major life activities.

• Major life activities that may have been substantially limited

included her ability to lift, stop, walk, turn, think, concentrate,

bend, care for herself, sit and stand for long periods of time, and

relate to others.

31

Bray v. Town of Wake Forest,

2015 WL 1534515 (E.D. N.C. Apr. 6, 2015)

• After being hired as a police officer, Plaintiff discovered she was

pregnant. When she submitted a doctor’s note stating she would not

be able to run, jump or lift more than 20-25 pounds during her

pregnancy, her employment was terminated.

• Held: Plaintiff alleged sufficient facts for her PDA and ADA claims to

be plausible.

• PDA: Statements that she “was not fit for her job” while two male

officers received light duty assignments when they experienced

physical limitations due to injury were sufficient allegations of

discrimination.

• ADA: Plaintiff’s alleged restrictions of lifting, running, and jumping

were sufficient to establish a substantial limitation.

32

• Our investigators continue to see many violations of

longstanding EEOC positions on ADA and Leave.

• New resource document, posted May 9th, reminds the

public of these basic rules:

Employer-Provided Leave and the Americans

with Disabilities Act

https://www.eeoc.gov/eeoc/publications/ada-

leave.cfm

33

https://www.eeoc.gov/eeoc/publications/ada-leave.cfm



Leave & the ADA

• Employers must provide reasonable accommodations to applicants and employees with disabilities, if needed and if no undue hardship.

• Employees may request leave as a reasonable accommodation to, for example,

• Obtain medical treatment;

• Recuperate from illness or symptom(s) related to his/her disability or medication;

• Obtain repairs on a wheelchair, prosthetic, or other assistive device or equipment;

• Avoid temporary adverse conditions in the workplace;

• Train a service animal;

• Receive training in Braille, sign language, or another topic related to his/her disability.

34

Leave Policies & the ADA

• The ADA does not require employers to have leave

policies.

• The ADA does not prohibit:

• policies that restrict leave eligibility,

• maximum leave policies, or

• 100% healed policies.

• But such policies could lead to ADA violations if

reflexively followed.

35

Leave Policies & the ADA, Cont’d

• Employers must allow employees to take leave or

make exceptions to leave policies as a reasonable

accommodation under the ADA, if no undue hardship

exists.

• Employers must be aware of, and must ensure that all

relevant staff are aware of, their legal obligations.

36

ADA

• Eligible employee entitled to leave if no other effective

accommodation and leave isn’t an undue hardship.

• Employer must allow employee to use accrued paid leave

before unpaid leave.

• Employer must continue employee’s health insurance

benefits during the leave if it does so for other employees

in a similar leave status.

• Employer must allow employee to return to same position

if employee is qualified and holding the position open isn’t

an undue hardship.

• If employee is no longer qualified or holding position open

is an undue hardship, employer must reassign employee

to a vacant equivalent position for which s/he is qualified

(absent undue hardship).

37

FMLA

• Eligible employees are entitled to a maximum of 12 weeks of leave per 12 month period.

• Employer must allow employee to use accrued paid leave before unpaid leave.

• Employer must continue employee’s health insurance benefits during the leave, if the employee pays his/her share of premiums.

• Employees generally entitled to return to the same position or an equivalent position, with exceptions for “key” employees.

• Enforced by DOL

38

ADA & FMLA

• Eligibility requirements different

• ADA: employee needs leave because of his/her disability

• FMLA: employee needs leave to care for own serious health condition or for a covered relative (including a child, a relative with a serious health condition, or a relative who is a covered military member)

• If both ADA and FMLA apply, employer must provide leave under whichever statute provides greater rights to employees.

• Employees may be entitled to leave under the ADA after exhausting their FMLA leave.

• Employers may consider FMLA leave taken when determining whether additional leave would pose an undue hardship.

39

Alternatives to Leave

• Instead of leave, an employer may provide a

reasonable accommodation that enables the

employee to remain on the job (or return from

leave sooner) if the accommodation: • Would be effective

• Would eliminate the need for leave; and

• Would not interfere with the employee’s ability to address

his/her medical needs.

40

Employer Responsibilities:

Interactive Process & Leave Requests

• In general, employee must let employer know that

s/he needs leave for a medical condition.

• Employer should engage in an “interactive process”

as appropriate to clarify the employee’s needs and

identify appropriate reasonable accommodations.

• Information needed depends on the circumstances,

but may include:

• Specific reason(s) employee needs leave;

• Form of leave; and

• When the need for leave will end.

41

Employer Responsibilities: Interactive

Process (Cont’d)

• Employers may:

• Ask for additional information or reasonable

documentation from the employee;

• Obtain information from the employee’s health care

provider, with the employee’s permission, to:

• Confirm or elaborate on information provided by

the employee; and/or

• Help the employer understand the need for leave,

the amount and type of leave required, and whether

other reasonable accommodations may be effective

for the employee.

42

Communication During Leave

• Interactive process may continue even after

employer approves employee’s leave request.

• For example, further communication may be helpful

if:

• leave request didn’t specify an exact or fairly specific

return date, or

• employee requests additional leave.

• May reach out to check progress; may not request

periodic updates

• Common courtesy okay, hounding not okay

43

Interactive Process & Return to Work

• Employers should continue to engage in the interactive process as needed, such as when

• an employee who is on disability-related leave requests a reasonable accommodation to return to work, or

• the employee’s doctor imposes work restrictions when the employee returns to work.

• In particular, employers may ask about:

• the specific accommodation(s) the employee needs;

• why the accommodation(s) is/are needed;

• how long the employee may need the accommodation(s);

• possible alternative accommodation(s) that might be effective for the employee.

• Employers may also explore whether the accommodation(s) would pose an undue hardship.

44

Reassignment as a

Reasonable Accommodation

• Reassignment may be an appropriate reasonable accommodation if:

• the employee’s disability prevents him/her from performing essential job function(s), even with an accommodation; or

• any accommodation would pose an undue hardship.

• The employer must place the employee in an equivalent vacant position for which s/he is qualified.

• “Equivalent” in pay, status, or other relevant factors (e.g., benefits, geographic location)

• Can’t require employee to compete with other applicants

• Not limited to current office, facility, geographical area, etc.

• These rules apply even if the employer generally doesn’t reassign employees or allow them to transfer.

45

Reassignment as a Reasonable

Accommodation, Cont’d

• When considering reassignment as a reasonable

accommodation, employers are not required to:

• Help the employee become qualified;

• Create a new position;

• Promote the employee; or

• Violate a seniority system.

46

Undue Hardship • Employer must provide a reasonable accommodation

(such as leave) needed because of an employee’s

disability if it would not pose an undue hardship for the

employer.

• Relevant factors in determining if providing leave would

result in undue hardship may include:

• The amount and/or length of leave needed;

• The frequency of the leave;

• Whether there is any flexibility regarding when leave is taken;

• Whether the need for intermittent leave is predictable;

• The impact of the employee’s absence on co-workers;

• The impact of the employee’s absence on business operations

and the employer’s ability to provide timely and effective

customer service.

47

1. Employer may have to modify maximum leave policy

when employee needs more leave as a reasonable

accommodation.

2. Employer policies requiring employees returning to

work from leave to be “100% healed” may violate the

duty of reasonable accommodation.

3. Reassignment must be considered as an option for

employees who cannot return from leave to their

current jobs.

4. https://www.eeoc.gov/eeoc/publications/ada-

leave.cfm

48




Retaliation

• Ensure that employees are not subjected to retaliation

for (among other things):

• Requesting leave as a reasonable accommodation;

• Taking leave approved as a reasonable accommodation;

• Requesting a reasonable accommodation to return to

work;

• Work missed during leave taken as a reasonable

accommodation;

• Filing a discrimination charge/complaint;

• Participating in a discrimination proceeding, or

• Opposing discrimination.

49

Tips for Employers: Leave & the ADA

• Review your leave policy, leave form letters, company handbook, and any other leave-related policies or procedures. Clarify that leave may be available as a reasonable accommodation, consistent with the law.

• Beware of:

• No leave available to any employees for any reason, w/o exceptions

• No leave available to certain employees (for example, no leave available to employees during their first 90 days), w/o exceptions

• Maximum leave policies w/o exceptions

• 100% healed policies

• If providing leave or granting a leave extension would pose an undue hardship, determine whether alternative accommodations are available that would be effective for the employee and your business.

50

Tips for Employers:

Leave & the ADA, Cont’d • Ensure that

• Employees,

• Managers,

• And any other relevant individuals (such as third-

party providers)

understand and abide by the ADA, other relevant

laws/regulations, and your business’s rules and

policies regarding reasonable accommodation.

51

Tips for Employers:

Leave & the ADA, Cont’d • Train employees about their ADA rights:

• Explain your business’s rules and policies regarding

reasonable accommodation;

• Explain who employees should contact if they need disability-

related leave;

• Explain the type of information it may be helpful for them to

provide, and that you may request additional information

and/or documentation, if needed.

• Explain that any medical information they and/or their doctor

share(s) will be kept confidential, as legally required.

52

Tips for Employers: ADA, Leaves, etc.

• Train managers about their ADA responsibilities:

• Explain managers’ responsibilities under the ADA, other relevant laws/regulations, and your business’s reasonable accommodation rules and policies;

• Ensure managers can recognize requests for disability accommodation;

• Explain who managers should contact if they receive a disability accommodation request;

• Caution managers who are not responsible for handling reasonable accommodation requests against requesting medical information from employees, given the legal limitations on such requests; and

• Explain that there are strict confidentiality rules regarding medical information.

53

Tips for Employers:

Leave & the ADA, Cont’d • Train staff responsible for handling reasonable

accommodation requests about their responsibilities:

• Ensure staff understand the ADA, other relevant laws and regulations, and your business’s reasonable accommodation rules and policies;

• Ensure they can recognize requests for disability accommodation;

• Ensure they know how to respond to a disability accommodation request;

• Explain the circumstances under which they may request additional medical information or documentation, if needed;

• Explain the importance of responding promptly and effectively to accommodation requests; and

• Explain the confidentiality requirements associated with employees’ medical information, including the need to keep medical information confidential and in a separate medical file.

54

Reasonable Accommodation & Leave

Resources

• Employer-Provided Leave and the Americans with

Disabilities Act

https://www.eeoc.gov/eeoc/publications/ada-

leave.cfm

• Enforcement Guidance: Reasonable

Accommodation and Undue Hardship Under the

Americans with Disabilities Act

www.eeoc.gov/policy/docs/accommodation.html

(See “Leave” under “Types of Reasonable

Accommodations”)

55





http://www.eeoc.gov/policy/docs/accommodation.html


Resources

• The Family and Medical Leave Act, the Americans with

Disabilities Act, and Title VII of the Civil Rights Act of

1964

www.eeoc.gov/policy/docs/fmlaada.html

• Enforcement Guidance on Pregnancy Discrimination and

Related Issues

www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm

(See § II.B., Reasonable Accommodation)

56

http://www.eeoc.gov/policy/docs/fmlaada.html

http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm


Resources

• Enforcement Guidance: Workers’ Compensation

and the ADA

www.eeoc.gov/policy/docs/workcomp.html

(See “Return to Work Decisions” and “Reasonable

Accommodation”)

• The Americans with Disabilities Act: Applying

Performance and Conduct Standards to Employees

with Disabilities

www.eeoc.gov/facts/performance-conduct.html

(See “Attendance Issues”)

57

https://www.eeoc.gov/policy/docs/workcomp.html

http://www.eeoc.gov/facts/performance-conduct.html




Break

DWC UPDATES

October 26, 2016

Ray Meister, MD, MPH

Executive Medical Director

Division Of Workers’ Compensation

Department of Industrial Relations

SB 1160 and AB 1244

• Effective January 1, 2018

• Prospective UR would not be required for emergency services, medications as designated under the new formulary, and services provided by a predesignated physician, MPN or HCO providers, or employer-selected physicians or facilities within 30 days of the initial date of injury.

• The services must relate to an accepted body part or condition that is addressed by the MTUS, and the treatment plan must be outlined in the report and accompanying request for authorization (RFA). All treatment rendered must be consistent with the MTUS.

SB 1160

• Specific services, such as surgery, psychological

treatment, home health care, MRIs, and DMEs

over a total expenditure of $250 based on OMFS

pricing, would require prospective UR

• Bills for treatment rendered under this provision

must be submitted within 30 days of the treatment

date.

SB 1160

• Providers who fail to timely submit the report and RFA

outlining the treatment plan may lose their ability to

provide treatment to that injured employee that is exempt

from prospective UR during the remainder of the 30-day

period.

• An employer may conduct retrospective UR for any

treatment provided solely for the purpose of determining

if the provider is prescribing treatment consistent with the

MTUS.

• If providers have a pattern and practice of providing

treatment inconsistent with the MTUS, they could lose

their ability to provide UR-exempt treatment for any

employees or be removed from the MPN. Additionally an

employer has the option to file a petition requesting a

change of physician.

SB 1160

• Employers and Utilization Review Organizations (UROs) are prohibited from offering financial incentives to physicians based on the number of UR denial or modification decisions they issue.

• Claims administrators cannot refer matters to a UR entity in which the claims administrator has a financial interest unless there is a prior written disclosure to the employer and AD of the name of the UR entity and the financial interest in the UR entity.

• The AD has authority to review contracts between the UR physician and the claims administrator or employer for purposes of enforcing these provisions.

• URAC and DWC approval for UR plans. Certain nonprofit, public sector internal UR programs may be exempted from the accreditation requirement.

SB 1160

• Formulary treatment requests are subject to expedited UR and IMR, requiring a decision within five days from receipt of the treatment request.

• Decisions denying treatment due to lack of sufficient information to make a medical necessity determination must include a specific description of the information needed and document details regarding the attempt to obtain the information.

• A UR decision to modify or deny treatment remains in effect for 12 months with no action needed on similar request by the same physician or another physician within the requesting physician’s practice group, unless there is a documented change in material facts.

• Mandatory electronic reporting of UR data by claims administrators to DWC.

SB 1160

Labor Code section 4903.05

• All liens for medical treatment subject to the filing fee, must be accompanied by a declaration signed under penalty of perjury affirming that the dispute is not subject to independent bill review and verifying that the lien claimant is eligible to file that lien.

• The declaration requires that the entity filing the lien indicate on what basis they are eligible to file the lien. The list of bases of eligibility includes certified interpreters, copy service providers and entities with an expense allowed as a lien under the AD’s rules.

• For liens filed on or after January 1, 2017, the declaration must be filed at the time of filing the lien. For all liens filed before January 1, 2017, the declaration must be filed by July 1, 2017.

• The failure to file the declaration will result in the dismissal of the lien with prejudice. The filing of a false declaration will serve as grounds for dismissal of the lien with prejudice.

SB 1160

Labor Code section 4615

• Liens, and any related accrual of interest, filed by a

physician or provider who is criminally charged with

workers’ compensation fraud, medical billing fraud,

insurance fraud, and Medicare or MediCal fraud, shall

be automatically stayed pending the disposition of

criminal case.

SB 1160


• The original provider of goods or services is the lien

owner.

• Liens must be filed in the name of the lien owner only

and that no payment shall be made to any lien claimant

without evidence that they are the owner of the lien.

• For liens filed on or after January 1, 2017, assignment

of liens is barred unless the provider has ceased doing

business. Any assignment of a lien by a provider in

violation of this provision is invalid by operation of law.

SB 1160


• The AD is required to determine the range of

reasonable fees that attorneys can be paid for

depositions.


• The AD is required to adopt rules by January 1, 2018

for verifying the identity and credentials of interpreters

providing services in workers’ compensation settings.


• The current Doctor’s First Report would be submitted

electronically to both the DWC and the employer’s

claim administrator.

AB 1244

Labor Code section 139.21:

• DWC to suspend any physician, practitioner or provider from participating in the workers’ compensation system as a physician, practitioner, or provider, if any of the following apply:

• The individual has been convicted of any felony or misdemeanor and that crime comes within any of the following descriptions: (1) it involves fraud or abuse of the Medi-Cal program, Medicare program, or workers’ compensation system, or fraud or abuse of any patient; (2) it relates to the conduct of the individual’s medical practice as it pertains to patient care; (3) it is a financial crime that relates to the Medi-Cal program, Medicare program, or workers’ compensation system; or (4) it is otherwise substantially related to the qualifications, functions or duties of a provider of services.

• The individual or entity was suspended, due to fraud or abuse, from the federal Medicare or Medicaid programs.

• The individual’s license, certificate or approval to provide health care services has been surrendered or revoked.

AB 1244

• If the disposition of the criminal proceedings provides

for dismissal of liens and forfeiture of sums claimed,

the liens will be dismissed with prejudice by operation

of law.

• If the disposition of the criminal proceedings doesn’t

address the disposition to be made of the physician’s,

practitioner’s, or provider’s liens pending in the

workers’ compensation system, the liens will be

identified, consolidated and subjected to special lien

adjudication proceedings.

AB 1244

• The DWC will conduct the consolidated special lien

proceeding and appoint a workers’ compensation judge to

preside over the proceedings. Special lien proceeding

attorney employed by DIR or DWC will represent DIR.

• There is a presumption affecting the burden of proof that all

liens adjudicated in the special lien proceedings, as well as

all underlying bills and claims for compensation, arise from

the conduct subjecting the physician, practitioner or provider

to suspension. Payment is not due and shall not be made

on those liens as they arise from, or are connected to,

criminal, fraudulent, or abusive conduct or activity.

• Lien claimant physicians, practitioners, and providers do not

have the right to payment unless they rebut the presumption

by a preponderance of the evidence.

AB 1244


• Mandatory written disclosure form, signed by both the injured worker and the attorney, must be filed with WCAB in adjudicated cases.

• The disclosure form will now include a statement that a person making false statements or representations for the purpose of obtaining or denying workers’ compensation benefits is guilty of a felony.

• The disclosure form must state the exact location of the district office of the appeals board where the employee’s case will be filed and must include a statement affirming that the employee was advised of the location and the fact the employee may be required to appear there at his or her own expense.

• The employee cannot sign the disclosure form until: (1) he has been advised where his case will be filed; (2) he has met with or personally spoken with a licensed attorney who is employed by the firm representing the employee; and, (3) he has been advised of his rights under other provisions in the statute.

Independent Medical Review (IMR)

22,118 22,323

0

5,000

10,000

15,000

20,000

25,000

August (2015) August (2016)

Applications Received Unique Applications Eligible Applications

IMR Determinations Issued

IMR Services Requested N = 32,792 Disputed Treatment Requests, August 2016 Decisions

Pharmaceuticals, 44%

Diagnostic Testing, 16%

Rehabilitation, 13%

DMEPOS, 9%

Injection, 6%

Surgery, 6%

Evaluation & Management, 4% Other, 3%

IMR Services Requested N = 32,792 Disputed Treatment Requests, August 2016 Decisions

Pharmaceuticals All Other Services

Upheld 94.5%

Overturned 5.5%

Upheld 92.9%

Overturned 7.1%

MTUS – Updated Guidelines

and a Formulary

• Plan to update all MTUS evidence-

based treatment guidelines and

establish an evidence-based drug

formulary.

Treatment Guidelines • Updates to Current MTUS Topics

• General Approaches

• Neck and upper back

• Shoulder

• Elbow

• Forearm, wrist, and hand

• Low back

• Knee

• Ankle and foot

• Stress (Mental Health)

• Eye

• Chronic pain

• Opioids

Treatment Guidelines

• New Topics to be added

• Hip and groin

• Interstitial lung disease

• Occupational asthma

• Traumatic brain injury

Formulary

• RAND, Implementing a Drug Formulary for California’s Workers’ Compensation Program

• Conducted a review and analysis of existing drug formularies.

• Looked at: Washington State, Texas, Ohio, ODG, ACOEM, and MediCal/Medicaid

• Recommendation: Treatment guidelines and the formulary should incorporate the evidence-based standards of care that best meet the needs of California's injured workers.

• Recommendation: Consistency. Most MTUS guidelines are based on ACOEM. A formulary based on the ACOEM guidelines will enable consistency with the MTUS guidelines.

• The ACOEM guidelines have a more rigorous, transparent development process.

Formulary (cont.)

• DWC has drafted rules and criteria for the application of the formulary and use of the preferred drug list.

• Preferred Drug Criteria

• Being noted as a first line therapy weighs in favor of being preferred.

• Recommended for most acute and or acute/chronic conditions addressed in clinical guidelines weighs in favor of being preferred.

• A safer adverse effects (risk) profile weighs in favor of being preferred.

• Drugs listed for the treatment of more common work-related injuries and illnesses weighs in favor of being preferred.

Formulary (cont.)

• Preferred drugs are not subject to prospective review

• Must be prescribed consistent with MTUS guidelines

• Other medically necessary drugs are available to the injured worker when authorized through prospective review

• Formulary: Quarterly Updates

• ACOEM will be informing DWC and P&T committee of updates to ACOEM formulary on at least a quarterly basis

MTUS Online Education

• Instruction on how to use the MTUS.

• Available online without charge.

• Free CME credit.

• Example cases.

• http://www.dir.ca.gov/dwc/CaliforniaDWCCME.ht

m

http://www.dir.ca.gov/dwc/CaliforniaDWCCME.htm




Lunch & Raffle


Panel Discussion

William Tamayo United States Equal Employment Opportunity Commission

Dr. Ray Meister Department of Industrial Relations

Kevin Kish California Department of Fair Employment and Housing

Disability

Management Employer Coalition

Kevin Kish, Esq. Director, CA Department of Fair Employment of Housing Wednesday, October 26, 2016

San Ramon, CA

2015 Annual Report

23,770 complaints received

17,915 complaints filed

11,768 complaints filed with request for RTS

6,147 complaints filed after DFEH intake

interview

16,285 FEHA Employment

Top 10 Employment Bases Retaliation 14,043

Disability - Mental and Physical 8,507

Sex – Gender 5,832

Race 4,957

Age - 40 or Over 4,845

Sexual Harassment 4,822

Family Care or Medical Leave (CFRA) 4,591

Medical Condition – Cancer or Genetic

Characteristics 3,850

Color 2,543

National Origin 2,445

Hot Topics in Disability Law

Failure to prevent claims

12940(k) violations

Interactive process

Leave as an accommodation

Companion or emotional support animals

Failure to Prevent Claims

Government Code sec. 12940(k)

It is an unlawful employment practice …..to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.

On behalf of employee

On behalf of DFEH

Interactive Process in FEHA

Regulations

Timely, good faith communication between

the employer and the applicant or employee;

To explore whether or not the applicant or

employee needs reasonable

accommodation for the applicant’s or

employee’s disability to perform the essential

functions of the job; and, if so,

To explore how the person can be reasonably

accommodated.

What’s the point?

The point of the process is to remove

barriers that keep people from performing

jobs that they could do with some form of

accommodation.

When to start

A specific request (no magic words)

Employer becomes aware of need

through observation or third-party

Leave is ending but employee needs

more time off

When to start

Work-related injury/workers’ comp triggers

Date of injury

Receipt of work restrictions

Receipt of a medical report containing

restrictions, such as from the QME, AME,

treating physician

Permanent and stationary status

Resolution of the workers’ comp case

How to start Forms not required, but they can be useful

An employer’s or other covered entity’s offer to engage in the interactive process in response to a request for [additional] leave does not violate California Code of Regulations, title 2, section 11091(b)(1) & (b)(2)(A)1., prohibiting inquiry into the medical information underlying the need for medical leave other than certification that it is a “serious medical condition.”

Common pitfalls

No IP – employer review without

engaging employee in the decision

process

Insistence on following specific steps

Sending forms and waiting for them to be

returned

Termination for failure to use company

forms

Common pitfalls

Failure to explore all available

accommodations

https://askjan.org

http://www.dor.ca.gov/DisabilityAccessIn

fo/index.html

Remember to consider vacant positions

https://askjan.org/

https://askjan.org/

http://www.dor.ca.gov/DisabilityAccessInfo/index.html



Common pitfalls

Failure to document reasons for denial

Accommodation ineffective?

Removal of essential job function?

Medical documentation inadequate?

(follow up required)

Lowering of performance or production

standard?

Common pitfalls

Failure to document undue hardship

Impact on co-workers – reallocate duties

Specific job duties performed in a timely

manner

Failure to fulfill a contract

Incur significant overtime costs

Meeting the needs of clients/customers

Size of employer is relevant

Common pitfalls

Not following up after accommodation is

granted

If the accommodation is not effective,

there is a duty to reengage in the

interactive process.

Leaves of absence

Individualized assessment is crucial

Medical verifications carry a lot of weight

Employers must make exceptions to

general policies (maximum leave) as a

reasonable accommodation

Common pitfalls

One size fits all

100% healed policies

None or same accommodation

regardless of circumstances

Adherence to rigid rules

Potential Conflicts

One person’s accommodation may interfere with another person’s disability

Interactive process required

Defenses

Undue financial or administrative burden

Direct threat

Support or Assistive Animal A “support animal” may constitute a reasonable accommodation in certain circumstances.

A support animal is one that provides emotional, cognitive, or other similar support to a person with a disability, including, but not limited to, traumatic brain injuries or mental disabilities, such as major depression. requires an individualized analysis reached

through the interactive process. Cal. Code Regs., tit. 2, § 11065

2 CCR 11065(a)(2)

Employers may require that an assistive animal in the workplace:

is free from offensive odors and displays habits appropriate to the work environment, for example, the elimination of urine and feces; and

does not engage in behavior that endangers the health or safety of the individual with a disability or others in the workplace.

Letters establishing need for

accommodation

Health care providers

DFEH enforcement position: on-line

emotional support certificates not

sufficient.

QUESTIONS?

[email protected] 916.478.7248

mailto:[email protected]


Break

THE ADAAA, FEHA & WORKERS’ COMPENSATION: INTERSECTIONS OR ROUNDABOUTS?

DMEC San Francisco, San Jose, and Sacramento Chapters October 26, 2016

William J. Armstrong Armstrong Law Firm

75 East Santa Clara Street, #1200 San Jose, California 95013

[email protected] 408-279-6400

©October 2016


WILLIAM J. ARMSTRONG 75 E. SANTA CLARA STREET GARY R. LOPEZ SUITE 1200 OWEN C. FENNERN SAN JOSE, CA 95113 KRISTINA C. LEE T: 408.279.6400 F: 408.279.6590

WILLIAM J. ARMSTRONG [email protected]

Bill Armstrong is the founder of Armstrong Law Firm, located in San Jose, California. His areas of expertise include Workers’ Compensation defense, employment counseling when work injuries implicate ADA/FEHA/FMLA issues, and Health and Safety compliance. For many years, Bill’s practice has focused on the most complex matters, especially those requiring the defense and management of employment discrimination risks which generate from work injury claims and issues. During his career, Bill has successfully represented his clients in high profile litigation from California to Ireland.




Bill received his J.D. from McGeorge School of Law, University of the Pacific, Sacramento in 1975 and his Bachelors of Arts from the University of the Pacific, Stockton, cum laude in 1971. Throughout his career, Bill has been an invited speaker for numerous associations and businesses, and has written extensively on matters involving workers’ compensation, toxic chemicals, and employment law. He is also a former member of the State Bar of California Workers’ Compensation Law Advisory Commission and a frequent presenter for the California State Bar Workers’ Compensation Section, the California Applicant’s Attorneys Association, and the California Workers’ Compensation Defense Attorneys’ Association. In addition to the practice of law, Bill has worked extensively in assisting employer groups with the drafting, analysis, and improvement of legislation. Since its inception in the Spring of 2000, San Jose Magazine annually included Bill as the only Workers’ Compensation defense attorney in their selection of the “Top Lawyers in Silicon Valley.” In addition, Bill has, for many years, been selected for inclusion in the Best Lawyers in America and Corporate Counsel Best Lawyers in Workers’ Compensation. Bill is now recognized in Martindale-Hubbell for achieving 27 consecutive years at their highest AV rating for legal ability and ethical standards, as evaluated by judges and his peers.

COURSE OBJECTIVES: OUR MOST PRESSING QUESTIONS? • What if WC is denied-do we approach the situation as if the

condition were non-occupational?

• Should we have occupational and non-occupational approaches for MLOA and FEHA approaches?

• How can we use medical evaluations under Labor Code Section 4050 or fit for duty for protection?-if they take place for use with the FEHA aspects, the opinions may not be admissible before WCAB under Sections 4060-4064 when/if Labor Code Section 132a actions are filed.

• What is the import of an AME vs PTP in FEHA?

• What is the import of a QME vs PTP in FEHA?

• Are FCE’s useful in FEHA? What are the issues with them in WC?

• What is the approach when the work injury has migratory body

parts, some of which are denied in WC, but which change the

restrictions during the time of the interactive process?

• How long do accommodation obligations last-job changes or

restrictions change?

• The claimant settled his Workers’ Compensation claim for

$100,000 and now his PTP has returned him to full and

unrestricted duty. What can I do?

• Should we have written EFJA’s for all positions?

• Are there risks between and employer and claims entity if

timely information is not provided or not properly provided (see

Labor Code Section 4658.7) and the employer ends up facing

FEHA claims?

DOES LIABILITY FOR THE SJDV BENEFIT OF LABOR CODE SECTION 4658.7 COMBINE WITH RTW FUND PAYMENTS UNDER LABOR CODE SECTION 139.48 TO INCREASE OUR RISKS FOR DISABILITY DISCRIMINATION ISSUES UNDER FEHA?

ORIGINS FOR OUR FOCUS: • The DWC is reporting a gradual increase in RTW fund applications

under Labor Code Section 139.48

• Recent monthly data shows these applications are now in the range of 1,200 per month trending upward toward an annual estimate of 12,000 to 24,000

• RTW fund applications require the worker to have received the Voucher provided for within Labor Code Section 4658.7

• Every SJDV issued to an injured worker includes a risk that the process preceding it being issued is subject to challenges under FEHA

WHAT IS THE CONNECTION BETWEEN FEHA RISKS AND THE SJDV OF LABOR CODE SECTION 4658.7? • In part, Section 4658.7 incorporates the following:

• The process starts with the first doctor (PTP, QME or AME) finding all conditions from the injury to be MMI and to cause permanent disability;

• That doctor must provide the RTW and Voucher form to the claim administrator;

• The 60 day time frame for the employer to provide regular, modified or alternate work based on the permanent disability and work restrictions begins with the claims administrator receiving the RTW and Voucher form;

• Upon receipt of the work restrictions (RTW and Voucher form) the claims administrator “must” provide that information to the employer with the statutory purpose of “fully informing” the employer about the “work capacities” and “activity restrictions” resulting from the injury, which are relevant to “potential regular, modified or alternate work.” (Labor Code Section 4658.7(b)(1)(B))

• Most physicians seem to be unaware of or fail to use the RTW and Voucher medical form. As a result, the trigger for the SJDV 60 day search period is normally a PR-4 or narrative report finding the post injury conditions to be MMI and to result in permanent disability.

• Unless the employer offers such work within 60 days of the claims person receiving the RTW form, the SJDV voucher must be issued within 20 days of the 60th day

• There is no requirement within Labor Code Section 4658.7 to engage in the interactive process. The only direct relief to the worker under Section 4658.7 is the SJDV and RTW fund payments.

• At the end point, the worker has no job, a Voucher worth up to $6,000 for retraining and a RTW fund payment of $5,000

Separate and distinct from our Workers’ Compensation Laws, in part,

Title 2, Section 11669 of the FEHA Regulations mandates the

following:

”(b) Notice. An employer or other covered entity shall initiate an

interactive process when:

(1) an applicant or employee with a known physical or mental

disability or medical condition requests reasonable

accommodations, or

(2) the employer or other covered entity otherwise becomes aware

of the need for an accommodation through a third party or by

observation, or

(3) the employer or other covered entity becomes aware of the

possible need for an accommodation because the employee with a

disability has exhausted leave under the California Workers'

Compensation Act,…”

In the normal process of a work injury claim, the interactive

process obligations can be triggered before the onset of the SJDV

issue, i.e.,employee is released to return to work with permanent

restrictions even though the condition is not yet MMI.

WHAT CONNECTIONS EXIST TO LINK THE SJDV PROCESS AND THE ACCOMMODATION MANDATES OF FEHA? • What happened to exclusive remedy protection of Labor Code

Section 3600 and/or Labor Code Section 132a?

• City of Moorpark v. Superior Court (Dillon), 18 Cal. 4th 1143 (1998)

• “In this case, we consider whether FEHA and common law wrongful discharge remedies are available to an employee who has suffered discrimination based on a work-related disability, meaning, for present purposes, a disability resulting from an injury "arising out of and in the course of the employment" that gave rise to the discrimination. (Lab. Code, § 3600.) We conclude that section 132a does not provide the exclusive remedy for this type of discrimination and that FEHA and common law remedies are available.”

For employers providing “workers’ compensation leaves”

as part of their procedures, an SJDV notice could be

argued to equate to the end of that leave and trigger the

interactive notice provisions of FEHA;

By its very definition, does the RTW and Voucher form

trigger the interactive process elements of FEHA since it

requires both permanent disability and work

restrictions?

Does the claims organization being required to provide

the information to the employer for the stated purpose

of “fully informing” the employer about work restrictions

and activity limitations equate to the purposes and

notice elements included within our FEHA laws

mandating the interactive process and accommodation

components?

Do permanent disability factors (WPI) and/or work

restrictions meet the FEHA definition of a

“disability?” (an impairment in a major life activity,

including work?)

An AMA Guides impairment is based on ADL’s

excluding work. Does this background to an AMA

rating make a WPI even more persuasive in

supporting the conclusion that a PTP, QME or AME

rating equates to establishing a protected disability

under FEHA?

CAN ASSERTIONS AND REPRESENTATIONS, ESPECIALLY WHEN MEDICALLY SUPPORTED, AS TO EXTENT OF PERMANENT DISABILITY BEFORE THE WCAB BAR A FEHA CLAIM FOR REASONABLE ACCOMMODATION? • Jackson v. County of Los Angeles (1997) 60 Cal.App 4th 171,

183; 62 CCC 1670).

• “In many workers' compensation cases, a person has a ‘total disability’ when s/he is unable to do certain tasks, even if those tasks are marginal functions or if s/he could perform them with reasonable accommodation. Thus, a person may be ‘totally disabled’ for WC purposes and yet still be able to perform a position’s essential functions.”

• Jackson, a police officer, filed a claim for workers’ compensation benefits. As part of his workers’ compensation claim, the plaintiff was evaluated by a physician who found that the plaintiff suffered from work-related hypertension, which required him to work in a stress-free environment. The plaintiff’s workers’ compensation claim was subsequently settled with the agreed stipulation that plaintiff was permanently disabled and could only work in a stress-free environment. The employer subsequently terminated the plaintiff’s employment because his position as a police officer necessarily involved stress, and an ADA lawsuit ensued.

• In his action filed for disability discrimination, the Court ruled that Jackson was judicially estopped from taking a position which differed from the stipulation, approved by the WCAB, that he could only work in a stress free work environment. (This included a finding that police work was/is inherently stressful.)

On the opposite side, a finding of Permanent and Total

Disability in the WCAB proceedings does not mitigate or

eliminate the requirement to engage in the interactive process.

Employers must evaluate an employee’s ability to do essential

functions independently from the Work Comp rating

Injured police officer had light-duty desk job. When the police

department learned he was “100% disabled” in Work Comp,

they terminated him because they thought that meant he was

not able to work. Court held that was disability discrimination;

the employer needed to engage in interactive process and

accommodate him with desk duty.

(Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757)

HOW DOES AN EMPLOYER ADDRESS, THROUGH THE INTERACTIVE AND ACCOMMODATION PROCESS, THE OFTEN CHANGING AND CONFLICTING OPINIONS OF PTP’S VS QME’S VS AME’S? • Neither the DFEH or DWC has provided regulatory

guidance on how to address multiple opinions, especially when they are in conflict or contradictory or changing and evolving

• Evidentiary value and importance of an AME, and possibly a QME, before the WCAB does not apply outside of Workers’ Compensation-do not think you will be relieved of FEHA liability because you follow an AME through the interactive and accommodation process

• Gelfo v. Lockheed Martin Corp. (2006)140 Cal.App.4th 34 , 43 Cal.Rptr.3d 874. In Gelfo, an AME report provided conclusions as to the PD and work restrictions which formulated the basis for a WCAB settlement, with the permanent disability equating to 42.5%. Following the settlement, the worker returned to his treating physician. As often happens, that doctor provided a work status concluding that Gelfo could return to his usual and customary work, without any restrictions.

• Relying on the extensive work restrictions of the AME, the employer denied any return to work and advised that the essential functions of the position of a parts fabricator could not be accommodated.

• The employer chose not to follow or adhere to the release to return to work, without restriction, as denoted by the PTP.

At the Court of Appeal, the employer was found to have

“regarded” the worker as having a disability by following

the AME conclusions, when he had none (per the PTP and

employee statements) . Based upon this finding, the

employer was required to engage in the interactive

process with the employee. By failing to do so, the

employer was liable for a FEHA violations.

The lesson learned from Gelfo is the employer adopts

the opinion of one physician to the exclusion of others in

a Workers’ Compensation matter at its legal peril in

actions brought under FEHA.

Well, you are the darn lawyer, what is the answer and

what are we to do when the PTP provides one set of

information, the worker objects and sees a QME who

provides a second, we then see lawyers get an AME who

provides a third, and then the worker changes PTP’s and

we get a 4th set of impairments and restrictions?

GLOSSARY

ADA – Americans with Disability Act of 1990: A federal law that prohibits discrimination against people with disabilities in employment, transportation, public accommodation, communications, and governmental activities.

A.D. - Administrative Director: Is the Administrative Director of the Division of Workers’ Compensation. The A.D. is charged with adopting, amending or repealing rules and regulations to implement, carry out, and clarify many laws in the Labor Code. The A.D. also has many other responsibilities that are specifically outlined in the Labor Code.

AME - Agreed Medical Evaluator: Labor Code § 4062.2 allows represented parties to use an agreed doctor to resolve disputes arising out of an injury or claimed injury.

CFRA - California Family Rights Act (Gov. Code, § 12945.2) contains family care and medical leave provisions for California employees. Leave provisions cover employers who do business in California and employ 50 or more part-time or full-time people. Secures leave rights for the birth of a child for purposes of bonding, placement of a child in the employee’s family for adoption or foster care, for the serious health condition of the employee’s child, parent or spouse, and for the employee’s own serious health condition.

CMS - Centers for Medicare & Medicaid Services: The federal agency that administers the Medicare program. In addition, CMS works with the States to run the Medicaid program and the State Children’s Health Insurance Program (SCHIP).

ADAAA - The ADA Amendments Act of 2008 was enacted on September 25, 2008, and became effective on January 1, 2009. The law made a number of significant changes to the definition of “disability” under the Americans with Disabilities Act (ADA). The Act emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA. It also directed the U.S. Equal Employment Opportunity Commission (EEOC) to amend its ADA regulations to reflect the changes made by the ADAAA. DFEC - Diminished Future Earning Capacity: Labor Code § 4660(a) provides that for injuries occurring before January 1, 2013, “in determining the percentages of permanent disability, account shall be taken of the nature of the physical injury or disfigurement, the occupation of the injured employee, and his or her age at the time of the injury, consideration being given to an employee’s diminished future earning capacity.

DFEH-Department of Fair Employment and Housing: The state agency charged with enforcing California’s civil rights laws. The mission of the DFEH is to protect the people of California from unlawful discrimination in employment, housing and public accommodations and from hate violence. Claims of unlawful disability discrimination flowing from a work place injury originate here.

DWC - Division of Workers Compensation: A division within the state Department of Industrial Relations (DIR). The DWC administers workers’ compensation laws, resolves disputes over workers’ compensation benefits and provides information and assistance to injured workers and others about the workers’ compensation system.

IMR - Independent Medical Review: Labor Code § 4616.4 provides for IMR in cases of MPN disputes. SB 863 has expanded the use of IMR per Labor Code § 139.5 which provides that the Administrative Director shall contract with one or more medical review organizations to conduct reviews. All appeals from utilization review determinations under Labor Code § 4610 will either be subject to a second UR review or directed to the Independent Medical Review process.

LABOR CODE SECTION 132a-makes it a misdemeanor for an employer to discriminate in any way, including discharge or threat of discharge, against an employee who has filed or is thinking about filing a workers' compensation claim or an employee who has received a workers' compensation award. This is coupled with a financial remedy to include reinstatement and back pay which is not insurable. The remedy is thought to be exclusive before the WCAB.

MMI - Maximal Medical Improvement: The point at which an injured workers condition is well stabilized and unlikely to change substantially in the next year, with or without medical treatment. See P&S.

FEHA-Fair Employment and Housing Act: The California Fair Employment and Housing Act (FEHA) is the primary law that provides employees with protection from discrimination, retaliation and harassment in employment, including disability discrimination and retaliation.. All employment provisions of the FEHA anti-discrimination provisions apply to all employers with five or more full-time or part-time employees.

FMLA - Family and Medical Leave Act of 1993: A Federal law that provides certain employees with serious health problems or who need to care for a child or other family member with up to 12 weeks of unpaid, job-protected leave per year. It also requires that group health benefits be maintained during the leave.

IBR - Independent Bill Review: Labor Code § 139.5 provides that the Administrative Director shall contract with one or more independent bill review organizations to conduct reviews. IBR was added pursuant to SB 863 to provide an unbiased method to resolve medical billing dispute resolution and reduce costs.

MPN - Medical Provider Network: An entity or group of health care providers set up by an insurer or self-insured employer and approved by DWC’s administrative director to treat workers injured on the job.

MSA - Medicare Set-Aside: An MSA is an allocation created from the settlement of a workers compensation case. It is established from a portion of the settlement to be used to pay for future medical care that is related to the work injury and that would otherwise be covered by Medicare.

PD - Permanent Disability: Any lasting disability that results in a reduced earning capacity after maximum medical improvement is reached. Also commonly referred to the benefits an injured worker may receive as a result of his/her permanent disability.

PPD - Permanent Partial Disability: Per Labor Code § 4452.5 (b), “Permanent partial disability” means a permanent disability with a rating of less than 100 percent permanent disability.

PTD - Permanent Total Disability: Per Labor Code § 4452.5 (a), “Permanent total disability” means a permanent disability with a rating of 100 percent permanent disability only.

PTP - Primary Treating Physician: The doctor having overall responsibility for treatment of an injured workers work injury or illness. The responsibility of the PTP are set out in California Code of Regulation Title 8, § 9785.

P&S - Permanent and Stationary: Per California Code of Regulation Title 8, § 9785 (a)(8), “Permanent and stationary status” is the point when the employee has reached maximal medical improvement, meaning his or her condition is well stabilized, and unlikely to change substantially in the next year with or without medical treatment.

QME - Qualified Medical Evaluator: Labor Code § 4060 et. seq. allows for the assignment of an independent physician certified by the DWC Medical Unit to perform medical evaluations.

RTW Fund-created by Labor Code Section 139.48. It is funded by an assessment on employers. It is administered through the State. At present, any injured worker who does not return to work with their employer at the time of injury and receives the SJDV benefit of Labor Code Section 4658.7 may apply. The current benefit is $5,000. (applies to injuries on and after 1/1/13.)

SJDB - Supplemental Job Displacement Benefit: For injuries occurring on or after January 1, 2004, and before January 1, 2013, Except as provided in § 4658.6, if the injury causes permanent partial disability and the injured employee does not return to work for the employer within 60 days of the termination of temporary disability, the injured employee shall be eligible for a supplemental job displacement benefit in the form of a nontransferable voucher for education-related retraining or skill enhancement, or both, at state-approved or accredited schools. Also referred to as a voucher.

SJDV-Supplemental Job Displacement Voucher. The Voucher benefit applies to injuries occurring on and after 1/1/13. Captured within Labor Code Section 4658.7, this benefit cannot be settled. (settlement now possible in limited situations per panel decision on the Beltran case) It must be provided to any injured worker who sustains permanent disability and their employer cannot or does not offer regular, modified or alternate work by the 60th day following receipt of the MMI report or RTW and Voucher report.

TPD - Temporary Partial Disability: Payments you get if you can do some work while recovering, but you earn less than before the injury. Per Labor Code § 4654, if the injury causes TPD, the disability payment is two-thirds of the weekly loss in wages during the period of such disability.

TTD - Temporary Total Disability: Benefits that are paid to an injured worker who is temporarily medically disabled from returning to work as a result of his or her industrial accident. These benefits are payable at two-thirds of the injured employee’s wages, with a maximum amount set forth by the Labor Code.

UR - Utilization Review: Labor Code § 4610 provides the process used by employers or claims administrators to review treatment requests to determine if they are medically necessary.

WCAB - Workers’ Compensation Appeals Board: Consists of 24 local offices throughout the state where disagreements over workers’ compensation benefits are initially heard by workers’ compensation judges. The WCAB Reconsideration Unit in San Francisco is a seven-member, judicial body appointed by the governor and confirmed by the Senate that hears appeals of decisions issued by local workers’ compensation judges.


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A Review of Key Legislative Changes - Disability...

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