The Game is Afoot

By: Mark Webb

The Presumptions Wars, 2022 edition, can now be downloaded at the California Legislature’s website. On the Assembly side, there is Assembly Bill 1751 (Daly), which would extend the COVID-19 workers’ comp presumptions currently in effect until January 1, 2025. The bill as introduced will not be the bill going to Governor Newsom. How different it will look depends on a number of factors as yet to be revealed. In the Senate, Senate Bill 213 (Cortese), creates a number of presumptions for hospital employees who provide direct patient care in an acute care hospital, including for infectious diseases, cancer, musculoskeletal injuries, post-traumatic stress disorder, and respiratory diseases. There is no sunset on SB 213.


SB 213 failed passage last year on the Senate Floor. This year, however, it got the 21 votes needed to go to the Assembly, where it currently resides awaiting referral to the Assembly Insurance Committee. The author of SB 213 is Senate Labor, Public Employment and Retirement Committee Chair Dave Cortese (D-San Jose). The author of AB 1751 is Assembly Insurance Committee Chair Tom Daly (D-Anaheim).


Other presumption bills that remain technically alive are Assembly Bill 334 (Mullin) extending existing skin cancer presumptions to certain peace officers of the Department of Fish and Wildlife and the Department of Parks and Recreation and Senate Bill 284 (Stern), expanding the post-traumatic stress presumptions in Senate Bill 542 (Stern) enacted in 2019. SB 542 sunsets on January 1, 2025, and was the subject of the RAND Report, “Posttraumatic Stress in California’s Workers’ Compensation System, A Study of Mental Health Presumptions for Firefighters and Peace Officers Under Senate Bill 542.”


Both AB 334 and SB 284 are on the inactive files on the Senate and Assembly floors respectively, having passed their houses of origin in 2021. At the request of the authors, these bills can be returned to the Third Reading file on any legislative day. The process in the Assembly and Senate for accomplishing that is somewhat different, but the result is the same.


At the end of the legislative session, there may well be a wide-ranging set of presumptions sent up to the Governor. Looming in the background – at least before the February 18th bill introduction deadline – are issues that did not get to the Governor last year, such as shortening the timeframes for presumptive injuries and increasing penalties for unreasonable denials – Senate Bill 335 (Cortese).


There also remains questions about physician access, although Assembly Bill 1465 (Reyes) was amended last year to do a study of the issue. AB 1465, originally drafted to create a medical provider network (MPN) in the Division of Workers’ Compensation, remains in the Senate Labor, Public Employment and Retirement Committee. There also remain pared down vehicles originally introduced to address perennial complaints within the medical community, Assembly Bill 399 (Salas) and Assembly Bill 404 (Salas) – both of which are in the Senate.


All of which is to say that some may simply dismiss this as business as usual in Sacramento. But the dialogue that should occur on presumptions is whether they are even needed in the California system. There is support for the proposition that they fail the claims of both supporters and detractors. The somewhat oblique conclusions of the other RAND report regarding Senate Bill 1159 COVID-19 presumptions, now available on the Commission of Health and Safety and Workers’ Compensation’s website, supports that conclusion.


Whether the dialogue does in fact happen is quite another matter. Presumptions are the singular more important issue for the California workers’ compensation system this legislative session. How it is dealt with will cast a very long shadow.


Note: The opinions expressed herein may or may not be those of Workers’ Comp Executive. Mark Webb is a former Arizona insurance regulator, insurance company chief compliance officer, and is an expert in corporate governance, risk and compliance. He is the owner of Prop 23 Advisors.