BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 1168|
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THIRD READING
Bill No: AB 1168
Author: Pan (D)
Amended: 8/18/11 in Senate
Vote: 21
SENATE LABOR & INDUST. RELATIONS COMMITTEE : 6-0, 6/29/11
AYES: Lieu, Wyland, DeSaulnier, Leno, Padilla, Yee
NO VOTE RECORDED: Runner
SENATE APPROPRIATIONS COMMITTEE : 6-0, 8/15/11
AYES: Kehoe, Alquist, Emmerson, Lieu, Price, Steinberg
NO VOTE RECORDED: Walters, Pavley, Runner
ASSEMBLY FLOOR : 70-0, 5/12/11(Consent) - See last page for
vote
SUBJECT : Workers compensation: vocational expert fee
schedule
SOURCE : Author
DIGEST : This bill requires, by January 1, 2013, the
Administrative Director of the Division of Workers
Compensation to adopt a fee schedule that establishes
reasonable hourly fees paid for services provided by
vocational experts. This bill prohibits a vocational
expert from being paid, and prohibits the Workers'
Compensation Appeals Board from allowing, vocational expert
fees in excess of those that are reasonable, actual, and
necessary.
CONTINUED
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ANALYSIS : Existing law establishes a workers'
compensation system that provides benefits to an employee
who suffers from an injury or illness that arises out of
and in the course of employment, irrespective of fault.
This system requires all employers to secure payment of
benefits by either securing the consent of the Department
of Industrial Relations to self-insure or by securing
insurance against liability from an insurance company duly
authorized by the state.
Existing law requires the administrative director of the
Division of Workers' Compensation (DWC) to adopt and
periodically revise an Official Medical Fee Schedule to
establish reasonable maximum medical fees for medical
services, including physician services and medical-legal
expenses.
This bill:
1. Requires, by January 1, 2013, the Administrative
Director of the DWC to adopt a fee schedule that
establishes reasonable hourly fees paid for services
provided by vocational experts.
2. Prohibits a vocational expert from being paid, and
prohibits the Workers' Compensation Appeals Board from
allowing, vocational expert fees in excess of those that
are reasonable, actual, and necessary.
Comments
Vocational Experts and Existing Fee Schedules . Currently,
the Labor Code is silent as to the fees for vocational
experts. Prior to 2004, the Labor Code contained
vocational rehabilitation services provided by vocational
counselors. They were covered by a fee schedule and their
services were cost contained through statute. In 2004, the
Legislature passed SB 899 (Poochigian), Chapter 34,
Statutes of 2004, which completely overhauled the workers'
compensation system. As part of that reform, the
vocational rehabilitation structure was dramatically
altered, eventually sun-setting in 2009.
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As was discussed above, many medical professions have their
fees capped through a fee schedule. These include
physicians, Qualified Medical Examiners (QME), Agreed
Medical Examiners (AME), chiropractors, and physical
therapists.
The same is true of medical-legal evaluations, which are
evaluations done by either a primary treating physician,
QME, or AME which is to develop a narrative medical report
for the purposes of proving or disproving a contested
medical fact or workers' compensation benefit. These
evaluations usually include face to face visit(s) with the
injured worker, review of records, and addressing medically
complex issues, such as causation and apportionment.
Ogilvie and the Use of Vocational Experts . In 2009, the
WCAB found in Ogilvie v. City and County of San Francisco
that permanent disability ratings were rebuttable. This
successful rebuttal of the permanent disability rating was
successful in part due to the expert testimony and reports
provided by two certified vocational rehabilitation
counselors. The Ogilvie case is currently being appealed,
and therefore the final details on how and when a permanent
disability rating can be disputed remain unclear, but the
use of vocational experts by injured workers and employers
to refute permanent disability rating findings is almost
certain to continue for the foreseeable future.
This bill does not touch upon the issues raised in Ogilvie
or any of the related cases. Rather, this bill seeks to
provide a fee schedule to set maximum fees if and when a
vocational expert is used by either an injured worker or an
employer. This would bring fee practices for vocational
experts in line with other workers' compensation services,
as well as historical norms.
Prior Legislation
AB 228 (Alarcon), Chapter 639, Statutes of 2003,
establishes the existing fee schedule structure for medical
services.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
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According to the Senate Appropriations Committee:
Fiscal Impact (in thousands)
Major Provisions 2011-12 2012-13 2013-14 Fund
Adoption of vocational Up to $75 Up
to $75 Special*
services fee schedule
* Workers' Compensation Administrative Revolving Fund
SUPPORT : (Verified 8/18/11)
Acclamation Insurance Management Services
Allied Management care
Alpha Fund
Association of California Insurance Companies
California Applicants' Attorneys Association
California Association of Joint Powers Authorities
California Chamber of Commerce
California Coalition on Workers Compensation
California Grocers Association
California Joint Powers Authorities
California Manufacturers & Technology Association
California Special Districts Association
California State Association of Counties
CSAC Excess Insurance Authority
League of California Cities
OPPOSITION : (Verified 8/18/11)
American Board of Vocational Experts
Career Associates Inc.
Cascade Disability Management
Hall Associated Rehabilitation Consultants
International Association of Rehabilitation
Professionals/California Chapter
Work-Wise, Inc.
ARGUMENTS IN SUPPORT : Supporters note that fee schedules
are the norm in workers' compensation. They also point out
that allowing the administrative director to adopt the
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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 administrative director 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."
ARGUMENTS IN OPPOSITION : Opponents have taken an "oppose
unless amended" position, arguing that that this bill
places unreasonable and excessive burdens in place for
vocational experts to be paid appropriately. Opponents
believe that the bill as currently written will make it
very difficult for a vocational expert to be appropriately
paid for services rendered, thereby hurting injured workers
and preventing them from receiving the expert testimony
they need. Opponents request that:
1. The requirement that they only be paid upon their
testimony being found admissible be removed;
2. That billing in excess of the medical the schedule be
allowed in the event of extraordinary circumstances, as
is currently allowed with medical-legal reports; and
3. Revising the fee schedule requirement so that charging
at the fee schedule is considered prima facie evidence
that the fees are reasonable.
ASSEMBLY FLOOR : 70-0, 5/12/11 (Consent)
AYES: Achadjian, Allen, Ammiano, Atkins, Beall, Bill
Berryhill, Block, Blumenfield, Bonilla, Bradford,
Brownley, Buchanan, Butler, Charles Calderon, Campos,
Carter, Chesbro, Cook, Davis, Dickinson, Donnelly, Eng,
Feuer, Fletcher, Fong, Fuentes, Furutani, Beth Gaines,
Galgiani, Gatto, Gordon, Grove, Hagman, Halderman, Hall,
Harkey, Hayashi, Hill, Huber, Hueso, Huffman, Jeffries,
Jones, Knight, Lara, Logue, Ma, Mansoor, Mendoza, Miller,
Monning, Morrell, Nestande, Nielsen, Norby, Olsen, Pan,
Perea, V. Manuel P�rez, Silva, Skinner, Smyth, Solorio,
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Swanson, Valadao, Wagner, Wieckowski, Williams, Yamada,
John A. P�rez
NO VOTE RECORDED: Alejo, Cedillo, Conway, Garrick, Gorell,
Roger Hern�ndez, Bonnie Lowenthal, Mitchell, Portantino,
Torres
PQ:mw 8/18/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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