Alrighty dear readers, we are back again with more crazy adventures in our beloved swamp of workers’ compensation.
Workers’ compensation fraud continues to plague California and your humble blogger would like to take this time to remind everyone to be alter. And, when your humble blogger says everyone, he really does mean…
Adjuster, attorneys, employers, and, of course, co-workers!
Workers’ compensation fraud hurts everyone – when your employer goes out of business and you lose your job, you can thank your “injured” co-worker for the fraud he or she committed to steal from the employer, and you can thank yourself for not speaking up. When everything you want to buy is getting more expensive, you can thank the fraudsters who unjustly drive up the costs of getting a product to market. Surely, fraud isn’t the only factor driving costs up, but it certainly doesn’t help!
The California Department of Insurance reports that a Sacramento welder has been charged with felony insurance fraud for misrepresenting his symptoms. Now, this is only a charge and not a conviction, so your humble blogger will decline to name names, but if everything is to be believed as claimed, then the criminal defendant/workers’ compensation applicant was video-taped exceeding his work restrictions and his subjective limitations.
Reading the press release reminds us that the district attorney did not just manifest charging documents – it was a team effort. Co-workers reported seeing the criminal defendant as acting fine despite having reported limitations. This triggered an investigation that put together the evidence to present to the district attorney, which then felt there was enough evidence to charge the worker with a crime.
Your humble blogger hopes that in this welder’s case, the truth is discovered and justice is done. Likewise, your humble blogger hopes we are all reminded to stay vigilant and that co-workers are encouraged to do the right. Straight on till Wednesday, dear readers!
Well, dear readers, defying all expectations, we made it to Friday!
A person who tunes into Fox News might be disappointed to know that the channel rarely, if ever, has news about foxes.
Fox and Balanced
The humble blogger takes a different approach, however, and WCDefenseCA is a defense blog.
So, then, why would your humble blogger’s post today be about a case where the defense arguments were defeated? Why would he even agree with the WCAB in ruling in favor of applicant?
Well, besides the fact that the WCAB was 100% correct, the recent decision in the matter of Brar v. County of Fresno should serve to remind us all of the rules, so that we are not taken unawares by a diligent applicant attorney.
In Brar, while the claim was on delay, applicant wrote to defense counsel offering AMEs and asserting that “[a] comprehensive medical legal evaluation is necessary to determine compensability” and cited Labor Code section 4060 and 4062.2. On the 16th day, applicant obtained a panel in pain medicine.
Defendant denied the claim about a few days later but objected to the panel because no dispute existed prior to the denial, and certainly not at the time of applicant’s letter.
So, who wins dear readers? Is there a dispute such as to trigger the right to a panel when the claim has not been denied?
One could look at California Code of Regulations section 30(d)(1) (“after a claim form has been filed, the claims administrator, or if none the employer, may request a panel of [QMES] only as provided in Labor Code section 4060, to determine whether to accept or reject a claim…”) and take the position that only the defense could request a panel during the delay period (for AOE/COE determinations). But one would be wrong.
Further, one could look at Labor Code section 4060 and compare subsection (c), which deals with represented injured workers, and subsection (d), which deals with unrepresented injured workers. While the section for unrepresented injured workers provides “either party may request a comprehensive medical evaluation to determine compensability,” subsection (c), dealing with represented injured workers, only allows for a compensability panel to be obtained under Labor Code section 4062.2.
To harmonize section 30 of the regulation and Labor Code section 4060, one could conclude that while an unrepresented injured worker could request a panel to determine compensability during a delay period (4060(d) trumping 30(d)(1) in the case of unrepresented injured workers), a represented injured worker cannot request a panel under Labor Code section 4060 during the delay period.
However, in the Brar case, the WCAB panel cited Labor Code section 4062.2 which allows a request for a panel “at least 10 days after the date of mailing of a request for a medical evaluation pursuant to Section 4060.” The conclusion is, of course, that applicant’s counsel’s letter requesting a compensability exam during the delay period was “pursuant to section 4060.”
So, what do we take from this? When you get a letter from applicant’s counsel indicating the intent to request a panel you should be prepared to submit an online panel request. It is not an effective tactic to assume that the underlying objection or letter will subsequently be found invalid – it very well might be. But it is a lot easier to get a panel than to have it ruled invalid.
As much as your humble blogger would like to see a rule that limits obtaining a panel during the delay period to defendants and unrepresented claimants, I would expect significant resistance from the WCAB to such a proposal, and unless a party is willing to take this issue to the Court of Appeal, it might be a sounder strategy to just be the one who gets the panel!
It is a rare thing indeed when your humble blogger has good news to report. Sometimes writing this blog reminds your humble blogger of an article headline from TheOnion: “man who thought he’d lost all hope loses last additional bit of hope he didn’t even know he still had.”
We needn’t wait for Festivus to air our grievances on this blog, dear readers. Although it is good news that the victims of this fraud will be brought closer to being made whole, this is hardly the whole story. Many instances of fraud are not discovered, and many of those that are discovered are still difficult to prove to the point of a conviction (or a guilty plea). The resources of the prosecutor’s office are also limited, and not all cases can be investigated and prosecuted.
But, at least for today, there is some good news for defendants everywhere – it is possible to secure an order of restitution, send a message to other employees considering a fraudulent claim, and, most of all, ridding oneself of a dishonest employee.
So, are we all experts on the new medical-legal fee schedule now? While we’re all wrapping our heads around who gets paid what and when, allow your humble blogger to submit to you a simple yet entirely terrifying question: do you like having a Medical Provider Network?
Most of the time the answer is a resounding “yes” and you know why? Having an MPN in California’s workers’ compensation system is entirely voluntary – if you enjoy the sound of quacking emanating from your claims desk, just cancel your MPN and let the applicants treat with whatever “doctor” his or her attorney has a wink-nod-secret-handshake agreement with.
Now that we’ve got that squared away, comes the terror and the dread. In Sacramento, Assembly majority leader Eloise Gomez Reyes and assembly member Lorena Gonzalez have introduced AB1465, which would create a California Medical Provider Network. My dear readers may recall assemblywoman Gonzalez is the California state elected official that responded to Elon Musks’s intent to leave California over COVID19 lockdown rules by tweeting “F*ck Elon Musk” and also drove the passage of AB5, which severely curtailed the “independent contractor” and “gig economy” worlds.
AB1465 would establish a state-wide medical provider network which will be called the CAMPN and would add section 4617 to the labor code, providing, in subsection (b), that “the injured employee may choose to treat with a physician in [the employer’s] MPN or HCO, or may choose to treat with a physician in the CAMPN.”
In other words, the employer’s control of medical treatment through an MPN will be effectively eliminated, as an injured employee can treat in the CAMPN, and the employer will have no control over who is in the CAMPN.
In fact, subsection (d) lists the requirements for a physician to be included in the CAMPN, and there aren’t a lot of them: good standing, a valid and active license, and agreement to comply with the fee schedule and reporting regulations.
The MPN is a tool to keep costs down while still providing medical treatment to injured employees. But this back-door approach will render that tool meaningless, as any doctor that would accept an injured worker as a patient is likely to be included in the CAMPN.
Hopefully there is enough sense in Sacramento to see that while one can sheer a sheep may times, you can only skin it once. Every time Sacramento raises the price of keeping the lights on for California businesses, more and more of them decide it’s time to close up shop and move on. Using the workers’ compensation system to further destroy California’s businesses is not a winning strategy to reach any sort of prosperity for Californians.
But, of course, that is just your humble blogger’s take on this, and until there is a California referendum giving me lifetime veto power over legislation, that take is not exactly binding.
And we’re finally here, dear readers – the end to another week and the end to a review of the new fee schedule.
Last time we covered the different billing codes and appropriate charges at the “base” rate. But nothing in workers’ compensation is immune to circumstance-driven modification, least of all the doctor’s bill.
Those fees discussed on Wednesday were just the base charges. The new regulations also include several modifiers and specialty specific charges. AMEs now multiply the base by 35%, as opposed to 25% pre 4/1/21. The use of an interpreter in an examination adds a 10% increase for the base, while an AME who needed an interpreter gets a 45% bump.
Doctors board certified in toxicology or internal medicine (or certified as QMEs in internal medicine) will get a 50% increase to the base for toxicology focused evaluations, with similar modifiers for interpreters (60%), AMEs (85%) and AMEs using interpreters (95%). The same will apply for oncology exams.
Psychologists and psychiatrist get to charge double the base, 210% if there is an interpreter, 235% if the evaluators is an AME without an interpreter, and 245% for an AME using an interpreter.
Don’t think the psyche QMEs and AMEs are going to be retiring sooner than before, however. Imagine an orthopedic AME with an interpreter conducting an initial orthopedic examination: that’s a base of $2,015 under ML201, with a 45% increase to $2,921.75. However, a psyche AME with an interpreter would be getting 245% of the base, or $4,936.75. Now look at the difference in time and testing it takes to do an orthopedic exam vs a psyche exam.
If the orthopedic QME spends 3 hours face-to-face and another 3 hours preparing a report, and then a few hours reviewing 400 pages, charging $600 for the extra 200 pages, that’s almost $500 per hour.
By contrast, if a psyche AME spends 4 hours in a face-to-face interview for the examination, spends 5 hours for psychological testing, another 6 hours preparing a report, and reviews the same 400 pages, then the psyche AME is getting roughly $330 per hour.
In other words, the new fee schedule might not attract as many psychology and psychiatry medical-legal evaluators into the pool as other specialties.
There is a lot in terms of changes here, and ultimately, the goal is the same as in any situation where more money is put on the table: increase the availability and quality of a particular service. Will the increases fees to be paid to medical evaluators attract more physicians to the QME and AME pools? Time will tell. Perhaps this will just result in the same quality of product with a bigger price tag, or perhaps the defense community will ultimately save money by getting a higher rate of quality, substantive, and party responsive reports that help to actually address the disputes that drive cases to litigation.
I know you’ve all been sitting on the edge of your seats, desperately tapping “refresh” on your web browsers and in-boxes hoping for more in-depth discussion of the new med-legal billing regulations… Well, now that you’ve invested the time in this topic, I guess you’re really stuck here, aren’t you?
There are now new duties imposed on the parties in sending documents to the med-legal evaluator as well. Section 9793(n) requires “[a]ny documents sent to the physician for record review” to be “accompanies by a declaration under penalty of perjury that the provider of the document has complied with [LC 4062.3] before providing the documents to the physician.” The declaration also has to include an “attestation as to the total page count of the documents provided.”
What happens if there is no such declaration? Then the physician cannot bill for review of those records, but the records are also no considered “available” or “received” by the reviewing physician. So, what’s the big deal? Defendants can easily reduce their bills by not including the attestation, so the medical-legal evaluator will either review it and not be able to bill for it, or not review it at all and then won’t have a substantial medical evidence report, right?
No, dear readers, not even close. Shame on you for even suggesting such an idea! I know, I know, it was your humble blogger who suggested it, but we’re all in this together, right? Remember, dear readers, that these new regulations in no way abridge the duties imposed by California Code of Regulations section 35, which holds, in subsection (a), that “the claims administrator, or if none the employer, shall provide … the following information to the evaluator: (1) all records prepared or maintained by the employee’s treating physician or physicians; (2) Other medical records … which are relevant to the determination of the medical issue(s) in dispute”. (Emphasis humbly added by your humble blogger)
So, defendants must still provide the records, and in order to comply with section 35, must include a declaration pursuant to section 9793 as well.
Now, to the medical-legal evaluators reading this, I’m sure you’re all chomping at the bit to hear about the part where you finally get paid more. Well, we’re finally here.
Section 9795 has been amended and reworked significantly. The new multiplier for the relative value (RV) system is $16.25, up from $12.50 (30% increase). There is even a new billing code for missed appointments (ML200) which not only allows the evaluator to bill $503.75, but also allows the evaluator to bill for medical document review in excess of 200 pages at $3 a page.
Missed appointments don’t just mean no-shows, however – they include cancellation within six business days of the scheduled exam, the injured worker being more than 30 minutes late, not having access to an interpreter when needed, or the injured worker leaving before the evaluation is complete. Defendants may now see credit against an applicant’s award “if fees for failed appointments and for late cancellations are incurred through the fault or neglect of the injured worker or his/her representative.”
This will set an interesting pace with those QMEs that unilaterally set cancellation notice requirements of more than the six business days required by the regulations. If the QME sends out a notice that cancellations must be done in writing at least ten business days before the exam, but the parties cancel seven business days before the exam (for example, if applicant decides to undergo surgery and Utilization Review approves), then the QME might refuse to re-set the exam until the bill is paid, but would have no legal basis to do so. Discipline by the Medical Unit might be appropriate in such a case.
Evaluations that actually go forward are charged at a base price of $2,015, with the same $3 per page in excess of 200 being billable. A re-evaluation within 18 months of the original exam is only billed at $1,316.25, and the first 200 pages reviewed by the evaluator are included, but any records previously sent and already reviewed by the evaluator don’t count. In other words, the evaluator cannot bill for reviewing records already reviewed and billed for.
But what about reviewing his or her own reports? What if the PQME spends time reviewing his own 55-page report prior to a re-evaluation… will that count towards the 200 “new” pages? Case law will tell, dear readers, as it always does.
Under ML-203, supplemental reports are billed at $650 and that fee includes the review of up to 50 pages not previously reviewed by the evaluator. Of note, any questions asked of the evaluator as part of a prior exam that were not answered cannot be the basis for this bill. So, if a defense attorney asks the QME to address if the injury is a specific injury, cumulative trauma, or both (and explain the reasoning therefore), and the QME fails to address this question, the follow-up letter must be addressed by the QME without billing for it.
Testimony for depositions is now billed at $455 per hour under ML204, and like before, there is a minimum of at least two hours for deposition. By contrast, review of sub rosa is billed at $325 per hour. Surprisingly, defendants are not required to provide microwaveable popcorn with the sub rosa DVD, which is clearly an oversight by the drafters.
Let’s stop here dear readers, and pick this up again on Friday where modifiers and your humble bloggers humble thoughts on the subject await.
Those of you that are still with me after my little April Fools’ joke last week, I thank you. In fact, Governor Newsome has not ordered participants in video-conferences to wear masks… at least not yet.
Your humble blogger also takes this opportunity to express his hopes that his beloved Christian readers had a restful and meaningful Easter, and also to wish his beloved Jewish readers a happy end to another Passover festival. Step carefully, dear readers, as painted eggs and Matzo crumbs are likely to be underfoot for many days to come!
So, back to reality then, or the closest thing to it in our often logic-allergic world of workers’ compensation. This swampland or ours is all abuzz with the new fee schedule issued by the DWC, and your humble blogger is eager to bring you some of the highlights.
The regulations went into effect on the unfortunate date of April 1, 2021, which lead to them being largely dismissed as a hoax. That was, of course, until the sun rose on April 2, 2021, and they were still in effect. Of note, the new regulations apply to evaluations post 4/1/21, testimony post 4/1/21, and any reports requested after 4/1/21, meaning that any pending supplemental reports requested prior to 4/1/21 should be under the old schedule.
The new fee schedule for medical-legal evolutions covers a LOT of territory, and there is more to discuss than one blog post will cover, so bear with me, dear readers, while I spread this topic out over the course of this week.
Initially, I would note that subsection 9793(c) offers some new definitions to work with. Now, an “evaluation” must include an actual examination of an employee. This will have significant implications for several issues of contention down at the Board. The two that come to mind immediately are as follows:
Let’s say an unrepresented applicant schedules a PQME evaluation with a panel physician. The injured worker doesn’t cancel the appointment but doesn’t attend either, and the QME then produces a report after reviewing records and issues a preliminary opinion, pending an in-person examination. Well, has the applicant received a “comprehensive medical-legal evaluation” under Labor Code section 4062.1?
Pre-4/1/21, California Code of Regulations section 9793(c) did not include the requirement of an examination, but now it does. Conceivably, a party could argue that there is no right to a Romero replacement panel in the above circumstance, but the new section 9793(c) would appear to cut off just such an argument.
Another area that will apply is in PTP billing. How often have you see ML-102 bills for $625 from a primary treating physician for writing a report to the Utilization Review vendor appealing a UR denial? Well, without an examination that claim is now even more absurd than it was before, since a physician examination is necessary to bill under ML102 (now ML202).
Another interesting definition that has been added is in 9793(l), which now includes “any correspondence received by the physician from the parties to the action” as part of the term “reports and documents required by the administrative director.” Why is this one important? Well, it looks like med-legal reports sent to the parties must now include reproductions of the correspondence sent to the QME and AME by the parties, pursuant to section 9794(h).
Your humble blogger is paranoid and cynical, so he can imagine an applicant attorney sending a “proposed” QME letter to him that says “Dear Dr. Dolittle, please rate my client’s papercut. It really, really hurts and he lost the Superman band-aid his doctor gave him” and then sending a different letter to the QME saying “Dear Dr. Dolittle, humble blogger eats puppies and hates you because you’re not a “real” doctor since you never mastered scalpel-throwing-self-defense..” Reminder, dear readers, you’re here for blog posts, not to judge me…
Presumably, now, if the QME wants his or her bills paid, he or she will also include copies of the letters received in the report being sent to the parties.
Come back on Wednesday for more thrilling analysis, dear readers!
In a move that is sure to cause an uproar in the defense community, Governor Newsom issued an Executive Order late Wednesday Night mandating that all workers’ compensation video depositions, trials, and tele-medicine QME examinations be conducted with masks on at all times. Citing the various strains of the mutating COVID-19 virus, Governor Newsome announced that these new procedures will help contain the spread of infection “that is believed to be able to enter through the eyes.”
At the press conference, the Governor noted “if just seeing the virus is enough to spread it, a mask is the only way to keep the virus out of sight, even on the computer screen.”
By requiring a mask during these events, the executive order seeks to prevent a variant of the COVID-19 virus that might be digitally transmitted through the video screen. Jack Sansone, Esq., of the California Anti-Fraud and Hoax Coalition, commented that such a requirement would prevent defense attorneys, medical-evaluators, and even trial judges from determining credibility of applicants with respect to testimony. “How are we even supposed to confirm the identity of the person on the screen if their masks have to be on the whole time?”
Speaking for the defense community, your humble blogger is outraged. At a time when cases are going down and there has not been a single proven case of ANY virus being transmitted over a video-conference, there seems to be absolutely no basis for this order.
Your humble blogger sincerely hopes that common sense will regain control of the situation, and by Friday morning, the order will be lifted, rescinded, and that all traces of its existence will disappear so that we can return to our level of… well, if not sanity, then at least a lesser version of insanity.
As is usual, this humble blogger does not publish a name for accusations… only convictions, and there’s none of that just yet.
The interesting aspect to this case is, of course, that the investigation began in April of 2020, which would have been during California’s COVID19 related lockdown, which made sub rosa footage particularly hard to obtain.
Your humble blogger hopes justice is served and the truth comes out, and also hopes that this reminds us to be alert to the subjective complaints that don’t seem to pass the “smell test” and take the initiative to investigate beyond the “injured” worker’s reporting.
In Cuevas v. A-1 Machine Manufacturing, both elements were in contention. Applicant was experiencing shoulder pains for about 3-4 months and took roughly a week off (scattered days here and there) over the course of those four months to rest his shoulder. In September of 2016 he told his boss that he was taking time off work because the work activities were causing shoulder pains.
The claim thus reported, he alleged a cumulative trauma through September of 2016 and later went on to have surgery almost a year afterwards, in August of 2017. Well, what’s the date of injury? Is it the first day he took time off work? When he told his employer about it in September of 2016? Or when he went under the knife in August of 2017?
The Court of Appeal in the Rodarte case, defined “disability” as used by Labor Code section 5412, to mean compensability disability, which means either some form of wage loss or permanent work restrictions. In this case, the trial judge held that the date of injury was August of 2017 because that is the first date applicant received temporary disability benefits. Because there were no medical reports to substantiate temporary disability for the days taken off work prior to September of 2016, the judge reasoned, there was no compensable disability for those dates since temporary disability benefits would not have been due.
Likewise, there was no medical report suggesting that the modified work restrictions leading up to the August surgery were permanent, and so there was no evidence of compensable permanent disability either. Accordingly, the first date of compensable disability would have been when applicant started receiving temporary disability benefits after the surgery. On reconsideration, the WCAB panel also added that merely showing applicant’s subjective belief that the injury was industrial was insufficient, and noted that defendant “introduced no evidence that applicant had any specialized training or medical knowledge which would satisfy the requirements of Labor Code section 5412.”
Between the WCJ and the WCAB, the conclusion was that defendant failed to move either date – disability or knowledge.
With respect to knowledge of industrial causation, that doesn’t seem to be the ruling from several other authorities. For example, in Alford v. Industrial Acci. Com. the California Supreme Court held that an injured worker’s subjective conclusions regarding the cause of his respiratory condition were sufficient to establish knowledge of industrial causation. Nielson v. WCAB reached the same conclusion as part of a Court of Appeal decision from 1985. More recently, a panel held in Hilton v. County of Ventura that applicant’s subjective awareness of the industrial cause of her symptoms was sufficient, even without a medical report to that effect.
On the bright side, depending on where you end up on a petition for contribution or a petition for joinder, you might be grateful for this ruling.
