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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
Copyright 2016. Disability Management Employer Coalition (DMEC). All rights reserved.
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
Copyright 2016. Disability Management Employer Coalition (DMEC). All rights reserved.
WELCOME
Background of Tri-Chapter Event
Roberta Etcheverry
Chief Executive Officer, DMG
President, Sacramento Chapter
Copyright 2016. Disability Management Employer Coalition (DMEC). All rights reserved.
WELCOME
Overview of DMEC - Local Chapters
Stan Scoscia
Account Manager, Aetna Life & Disability
Program Chair, San Jose Chapter
Copyright 2016. Disability Management Employer Coalition (DMEC). All rights reserved.
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
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
• 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
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
Reasonable Accommodation & Leave
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
Reasonable Accommodation & Leave
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
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
Labor Code section 4903.8
• 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
Labor Code section 5710
• The AD is required to determine the range of
reasonable fees that attorneys can be paid for
depositions.
Labor Code section 5811
• 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.
Labor Code section 6409.1
• 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
Labor Code section 4906
• 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 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
Copyright 2016. Disability Management Employer Coalition (DMEC). All rights reserved.
Lunch & Raffle
Copyright 2016. Disability Management Employer Coalition (DMEC). All rights reserved.
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
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.
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.