On January 25, 2017, California Assemblyman Adam Gray (D- Merced) re-introduced legislation to eliminate employers’ and workers’ compensation carriers’ obligation to pay for medical treatment necessitated by occupational disease and cumulative trauma injuries.

This pending legislation represents a renewed effort by employers and workers’ compensation carriers to shift the cost of industrial medical treatment onto private health plans, self-insured health and welfare benefit plans, and private providers, as well as federal, state, and local government facilities and programs.

We urge our clients to review AB 221 closely and to oppose it vigorously.

The provisions contained in AB 221 were originally contained in a version of AB 1244, which was also proposed by Assemblyman Gray in the last legislative session. Boehm & Associates opposed these very same provisions last year, and Assemblyman Gray removed the provisions from that bill before it was passed.

These same provisions aimed at eliminating the employer’s liability for medical treatment in occupational disease and cumulative trauma injuries have re-emerged as the centerpiece of new bill AB 221.

The amendments proposed by AB 221 including the following:

• Amendment to Labor Code Section 4600 [adding subsection (i)] to state:

(i) For claims of occupational disease or cumulative injury filed on or after January 1, 2018, the employee shall have no liability for payment for medical treatment and the employer shall have no liability for payment for medical treatment unless one or more of the following has occurred:

(1) The treatment was authorized by the employer;

(2) The injury to the body part or parts for which the treatment was provided has been accepted by the employer;

(3) The appeals board, after an evidentiary hearing or stipulation of the parties, finds the injury to the body part or parts for which the treatment was provided was compensable;

(4) The employee has undergone an evaluation by a qualified medical examiner, pursuant to Section 4600, or an agreed medical examiner and the evaluating physician has determined that the claimed occupational disease or cumulative injury was caused, in whole or in part, by the employment.  (Emphasis added.)

• Amendment to Labor Code Section 4903.1 [amending subsection (c)]  to state:

(c) For claims of occupational disease or cumulative injury filed on or after January 1, 2018, the employer shall not be liable for the payment of any lien for medical treatment unless one of the provisions of subdivision (i) of Section 4600 is satisfied  or the parties agree to a settlement by compromise and release which complies with subdivision (d) of Section 5005.  (Emphasis added.)

• Amendment to Labor Code Section 5005 to state:

(d) For claims of occupational disease or cumulative injury filed on or after January 1, 2018, the employer shall not be liable for the payment of any lien for medical treatment unless one of the provisions of subdivision (i) of Section 4600 is met or the amount of the compromise and release, exclusive of the cost of past and future medical treatment, is twenty-five thousand ($25,000) or more.  (Emphasis added.)

Clearly, this represents a comprehensive assault on the provisions and protections embodied in the Silberg case, with the intention to create a new liability on the part of government facilities and programs, union trust funds, private health plans, and private facilities to provide medically necessary, industrially related treatment to injured workers in occupational disease and cumulative trauma claims without recourse to reimbursement.

The proposed legislation will eliminate the system of checks and balances currently in place whereby health plans and other providers render necessary care during the pendency of claims denied by employers and seek enforcement of legitimate lien claims for this treatment.

The proposed changes are manifestly and fundamentally unfair and we vigorously urge our clients to immediately elevate this issue to your lobbyists in order to oppose this pending legislation in the strongest terms.

A copy of this pending legislation may be accessed here.