Governor Newsom has vetoed AB-1213 (D-Liz Ortega).
This is a bitter pill for the applicant bar. CAAA, on behalf of the applicant bar, had sought to exclude the period of TD indemnity paid during the period of a successful UR/IMR appeal from calculation of the 104 week temporary disability cap.
Had Newsom signed AB-1213, an injured worker who prevailed in IMR would have been eligible for up to 90 additional days of temporary disability. AB-1213 would have gone into effect after January 1, 2024 and had a sunset date of January 1, 2027.
As originally introduced, AB-1213 did not have a 90 day limit, but that was added in amendments as was the sunset date.
The argument in favor of AB-1213 was simple. If an injured worker is prevented from getting medically necessary care by a UR denial but prevails on an appeal to IMR, why should the worker be penalized? When the time for the UR appeal and IMR determination is being counted against the 104 week TD limit, the worker is essentially burning up their potential TD entitlement while treatment is delayed.
Given the precarious economic predicament of many injured workers, that seems unfair. So to the applicant bar and this blogger, AB-1213 as amended and passed by the California Assembly and California Senate was a reasonable ask.
Newson’s October 8, 2023 veto message is as follows:
To the Members of the California State Assembly:
I am returning Assembly Bill 1213 without my signature.
This bill would provide, until January 1, 2027, that when a utilization review (UR) denial of treatment is overturned by independent medical review (!MR) or by the Workers’ Compensation Appeals Board, any temporary disability (TD) payments received during this period would not be included in the maximum aggregate calculation of TD payments.
While I understand the goal of the author and sponsor, there is a lack of data to support such a change. Under the existing workers’ compensation system, employers are required to establish a UR process to evaluate the necessity and appropriateness of requested medical treatments. This process is in place to ensure that employees receive the appropriate evidence-based medical care.
Realigning incentives is an important policy tool to deliver on our shared goal of returning injured workers back to work. Such realignment should be done cautiously to avoid further friction in the system that frustrates the objective of providing timely treatment, prompt payment of benefits and returning injured workers back to work. Unfortunately, this bill does not strike the right balance.
For these reasons, I cannot sign this bill.
Sincerely,
Gavin Newsom
Exactly what for Newsom “the right balance” would be is not clear.
Earlier in the year the California Workers Compensation Institute published a white paper in opposition to AB-1213:
https://cwci.org/document.php?file=5589.pdf
The veto of AB-1213 highlights the fact that the applicant bar is hampered by the lack resources and/or allocation of resources to develop data-driven studies.
Clearly the employer/insurance coalition that was so powerful on workers’ comp issues under the reform eras of the Schwarzenegger and Brown administration still has gas in its tank.
Also vetoed were AB 699 (D-Weber) (San Diego lifeguards presumption), AB 1145 (Maienschein) (industrial presumption for PTSD for certain employees of state hospitals and Department of Corrections) and SB 391 (D-Blakespear) (skin cancer presumption for state Fish and Game and parks workers).
Newsom is clearly not a fan of presumptions.
And although Newsom did sign some worker-friendly bills, in the last few days he vetoed a number of labor-sponsored bills. In coming days I’ll be detailing some of those.
Stay tuned.
Julius Young
https://www.boxerlaw.com/attorney/julius-o-young/
510.835.8870