BILL ANALYSIS �
AB 1168
Page 1
Date of Hearing: April 13, 2011
ASSEMBLY COMMITTEE ON INSURANCE
Jose Solorio, Chair
AB 1168 (Pan) - As Introduced: February 18, 2011
SUBJECT : Workers' compensation: vocational expert fee schedule
SUMMARY : Requires the Administrative Director (AD) of the
Division of Workers' Compensation (DWC) to adopt a fee schedule
for vocational expert expenses. Specifically, this bill :
1)Requires that the AD adopt, on or before January 1, 2013,
after public hearings, a fee schedule to establish the maximum
reasonable fees to be paid to vocational experts in the
workers' compensation system for vocational evaluations and
expert testimony determined to be admissible by the Workers'
Compensation Appeals Board (WCAB).
2)Prohibits a workers' compensation judge and the WCAB from
allowing vocational expert fees in excess of the amount
authorized by the schedule adopted pursuant to the bill's
requirements.
EXISTING LAW :
1)Provides for a comprehensive system of workers' compensation
benefits to be paid to workers who are injured during or in
the course of employment, including permanent disability
benefits in cases where the injured worker has been determined
to be totally or partially permanently disabled.
2)Provides that the American Medical Association Guides to the
Evaluation of Permanent Impairment, 5th Edition (Guides, or
AMA Guides), shall be used, along with a Permanent Disability
Rating Schedule (PDRS) formula adopted by the AD by
regulation, to determine the extent of permanent disability.
3)Provides that the permanent disability rating determined by
use of the Guides and the PDRS shall be presumed to establish
the correct degree of permanent disability for a particular
injured worker.
4)Provides, as a matter of case law that is still pending before
the state Supreme Court, that the presumption may be rebutted
AB 1168
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under some circumstances.
FISCAL EFFECT : Undetermined.
COMMENTS :
1)Purpose . According to the author, after the WCAB decision in
Ogilvie v. City and County of San Francisco , which remains on
appeal in the state Supreme Court, vocational counselors who
used to receive $65 per hour when providing services under a
former benefit known as Vocational Rehabilitation (repealed by
the 2004 workers' compensation reforms) now bill two, three,
four or more times that amount when serving as experts when an
injured worker seeks to rebut the presumption that the
Permanent Disability Rating Schedule's (PDRS) result is
correct. The author further points out that virtually all
participants in the workers' compensation system who receive
payments for services provided are subject to a fee schedule.
Specifically, the author notes that there are caps on
Qualified Medical Examiners, Agreed Medical Examiners, hourly
rates for applicants attorneys, chiropractors, physical
therapists, physicians and many others who receive payments.
The author argues that it is consistent with the operating
principles of the workers' compensation system that the AD
adopt an appropriate fee schedule for these vocational expert
services.
2)Ogilvie v. City and County of San Francisco . In Ogilvie , the
courts have thus far upheld injured workers' claims that the
"presumption" that the PDRS is correct is rebuttable. While
that litigation is still pending, its underlying principles
have been litigated in numerous cases where the injured worker
believes that the PDRS understates the extent that the injury
impedes his or her ability to earn a living in the future.
(It should be noted that, under the Ogilvie reasoning, an
employer would be entitled to challenge a PDRS result where it
believes the rating overstates the extent of the permanent
disability.) It remains unclear precisely when, and how, the
presumption may be rebutted. However, one of the most common
approaches is to present expert testimony by a qualified
witness who has examined the injured workers' circumstances,
and who testifies that the impact of the injury on the
worker's future work life is understated by the PDRS. It is
this expert testimony, and the cost to employers who pay the
expense for this testimony, that the bill is seeking to
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address.
3)Support . Supporters make similar arguments to the author,
noting that fee schedules are the norm in workers'
compensation. They also point out that allowing the AD to
adopt the schedule after public hearings, as opposed to
adopting a statutory schedule, provides the flexibility to
adjust compensation levels over time. Delegation of this duty
to the AD is also common in the workers' compensation system.
Employer supporters also note that "�t]he imposition of fee
schedules in workers' compensation is an issue of fairness to
employers. More importantly, controlling administrative costs
in the workers' compensation system ensures that workers'
compensation dollars are preserved for injured worker
benefits."
REGISTERED SUPPORT / OPPOSITION :
Support
Acclamation Insurance Management Services (AIMS)
Allied Managed Care (AMC)
California Association of Joint Powers Authorities
California Chamber of Commerce (CalChamber)
California Coalition on Workers' Compensation
California Manufacturers and Technology Association (CMTA)
California Special Districts (CSDA)
California State Association of Counties (CSAC)
CSAC Excess Insurance Authority (CSAC-EIA)
Opposition
None received.
Analysis Prepared by : Mark Rakich / INS. / (916) 319-2086