Archive for March, 2016

No, Dorothy, Thinking About Work Is Not Compensable

March 30th, 2016 No comments

Hello dear readers!

How far can you stretch that whole AOE/COE thing?  One time your humble blogger was having a nightmare and, after falling out of bed and hitting my knee pretty darn hard on some unreasonably aggressive furniture, I came into work and tried to file a claim.  My workers’ compensation defense attorney bosses were skeptical, to say the least, but my pitch was “hey – I was having a nightmare about workers’ comp.”

As believable as it was that the practice of workers’ compensation would cause nightmares, my bosses were still skeptical that such a claim could ever be considered compensable.  In short, there are limitations to the whole AOE/COE thing, and, as much as everything we do is tangentially related to work, once in a while common sense will rule the day.

So, consider if you will, the matter of Hollie v. Management Training Corp., in which the Court of Appeal recently denied applicant’s petition for a writ of review, and the WCAB affirmed the WCJ’s take-nothing finding.

Applicant sustained a knee injury way back when (2014 to pre precise – my, my how the time flies) while participating in a continuing education program which he thought necessary to maintain her medical license (which was a prerequisite of her job as a physician).

When the WCJ found that the injury did not arise out of or in the course of employment, applicant sought reconsideration arguing that the subjective believe that participating in the continuing education program was a prerequisite to his continued employment, should be sufficient to support a finding of compensability.

The WCAB denied reconsideration, noting that although the California required continuing education for applicant to keep his medical license current, the employer did not mandate any particular continuing education course or the one at which applicant was actually injured.  In fact, applicant attended the course on his own time without telling his employer about it, and was not even reimbursed for the course!

This makes perfect sense – there are lots of things we need to do to be able to keep doing our jobs.  Most of our jobs require us to be sleep to the point where we’ve rested enough to be alert and functional during the day.  Most of our jobs require us to eat enough so that we can be alert and functional during the day.  But nightmares and tummy aches compensable claims do not make.

What’s your war story, dear readers? How far have you seen AOE/COE stretched?

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Personal Relationship At-Work Harassment Results in Compensable Claim

March 25th, 2016 No comments

Happy Friday, dear readers!

Once, many years ago, your humble blogger was at a diner in San Francisco (Mel’s Drive In, to be precise).  When my lady friend went to use the restroom, Bill Murray, the famed actor, came out of nowhere and walked right up to my table.  He took a French Fry from my plate and, as I stared at him in shock, he said “no one will ever believe you” and walked out of Mel’s before my lady friend returned.

To this day, no one believes this story, proving Bill Murray to be a man of both wisdom and action.  Sometimes, in the bitter watches of the night, I myself doubt if this really happened.  Actually, as I write this, I’m growing more and more certain that this didn’t happen.

Anyways, I have a story for you that is a bit more believable – the Court of Appeal recently denied review in the case of Sanchez v. City of Santa Barbara.  Applicant claimed a psyche injury resulting from workplace harassment (the growing trend is to call this bullying) by a co-worker with whom applicant had a long-standing and personal relationship.

Defendant argued that the workplace was merely a stage for a personal dispute, and that this harassment, though occurring geographically at work, was not an actual event of employment.

By contrast, applicant argued that this was harassment at work to the point that the campaign of harassment qualified as “actual events of employment” as contemplated by Labor Code section 3208.3(b)(1).  The QME found that 20% of the cause was “non-industrial stressor” while the remaining 80% was due to harassment by the co-worker.

The WCJ concluded that applicant’s complaints did not meet the threshold of AOE/COE and ordered that she take nothing.  However, the WCAB granted reconsideration, reasoning that management and workplace forces had become so integrated into the personal dispute, as to make the dispute work-related.  Apparently, the motivation to harass applicant was also based on the perception that she had spread rumors about the alleged harasser at work.

The Court of Appeal denied review.

Ok, so we have here a case where a purely personal relationship resulting in harassment has become compensable because (1) it occurred at work; (2) it all started because one party believed the other party spread rumors at work; and (3) management became involved in attempting to mediate and stop the harassment.

I’m starting to think that maybe Bill Murray did take one of my French Fries.

If there’s a line here your humble blogger is having a hard time finding it, because all of this still looks personal to me.  If an employee is injured at work by a violent spouse who shows up at the workplace, does the injury become industrial if the employer renders first aid?  If the violent spouse showed up at work because of the perception that the victim was spreading rumors about him or her at work, does that make this an industrial claim?

Your humble blogger respectfully submits that all of the facts that make this purely personal dispute industrial go back to the workplace being the stage for a personal dispute, which should have been found non-compensable.

I know it is shocking to my readers, and totally uncharacteristic of my cold, unfeeling, defense-attorney heart, but I think the WCJ’s take-nothing should have been allowed to stand.  If nothing else – if the facts are teetering on a fence, the WCJ was in the best position to receive witness testimony, observe witness demeanor, and thereby get a real understanding of whether, as this was all happening, the parties really perceived this as purely personal or somehow related to work.

Have a good weekend!

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More on Automation: London Parcel Couriers and Australian Pizza Delivery Both to be Replaced with Drones

March 23rd, 2016 No comments

Happy Hump Day, dear readers!

It’s no secret that your humble blogger is a big fan of automation, and of robotics replacing human labor – less workers being injured, costs shrinking, and a gradual evolution to a Jetsons-style life where we can all live happy and healthy lives.

It all began when Ug, the caveman manager of a small quarry in pre-historic Western France was faced with a Union uprising by his caveman employees.  Demanding higher wages and more reasonable hours, Ug discovered that he could simply replace some of his workers by issuing the remaining workers better tools – more force done with every blow required fewer blows overall, thus necessitating fewer workers.

Well, since that time, Ug and his descendants have yearned for minimizing the need for human labor, and maximizing quality of life with minimal costs.

We’re getting there.

In London, some couriers are being replaced with “ground drones” that use GPS and maneuvering technology to deliver parcels in the city.   Anyone who has had the pleasure of being knocked over by a bike courier in San Francisco, followed by the charming “you’re number 1!” emanating from the courier’s middle finger, will be pleased not to have to deal with this anymore as cute, Star-Wars like drones deliver the same parcels with more reliability and none of the attitude.

A company in Australia, a Dominos licensee, is taking the same approach to delivering Pizza, taking the tipping, cost, and delay of a pizza delivery out of the equation.  A fleet of small drones can now stand by to delivery your pizza directly (instead of you being a stop along the way) and probably letting you track your delivery too.

Bear in mind, dear readers, this is all happening at a break-neck pace.  Back in your humble blogger’s day, technology moved slowly, and a lot of it was focused at making work done by humans safer, rather than replacing them altogether.

The bottom line for the workers’ compensation community is, and continues to be, that in our lifetimes we will see a tremendous amount of jobs replaced, which means fewer work-related injuries and, thus, fewer workers’ comp. claims.  As a result, our industry may see some shrinkage in the years to come.

Now, who wants some pizza?

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WCAB: 2nd Opinion Okay to Contest Discharge; Denial of 2nd Opinion NOT Denial of Care

March 21st, 2016 No comments

Happy Monday, dear readers!

The weekend has been kind to us all, and we are eager to get back into it: denying claims, delaying benefits, and, of course, humbly blogging.

Today’s post is on a topic oft-visited by this humblest of blogs: the total medical discharge.

As my beloved readers will recall, this issue has come up before: an injured worker receives a total medical discharge from an MPN physician, and then wants to use the “second opinion” process to contest the discharge.  But, as the WCAB has repeatedly held, a total medical discharge is contestable ONLY through the panel process of Labor Codes 4062.1 and 4062.2 and NOT through the second opinion process.

Why would an applicant prefer one to the other?  Well, back in the day, California Code of Regulations section 31.1 held that when the Medical director receives two or more panel selection forms on the same day, the party requesting the specialty of the treating physician wins, unless the party requesting a specialty other than the treating physician’s writes a persuasive argument for why a different specialty is necessary.  The inference often argued by various parties was that the PTP’s specialty should always control.

Well, that’s gone now – there is no more presumption regarding the treating physician’s specialty.  The current 31.1 directs all disputes to workers’ compensation Judges, and disputes regarding panel specialty are to be handled under section 31.5(a)(10), which requires the parties to write to the Medical Director to determine the appropriate panel specialty, without much guidance as to how this determination is to be made.  (Unless your humble blogger is misinformed, the seat for the medical director is currently vacant, so good luck with that.)

The tactic would go that you’d get a second opinion from a less conservative physician in the MPN, and then immediately use that physician’s specialty as the basis for a panel request, or to allow the applicant to change treating physicians to a more liberal specialty.

But the treating physician’s specialty no longer controls panel disputes, and the gutting of the regulation seems to suggest the legislative or administrative intent to divorce treating physician specialty from panel specialty, perhaps shifting focus to the nature of the injury and the nature of the dispute.

In any case, the recent panel decision touching on this topic is that of Fernandez v. KMART, in which a WCJ found that the primary treating physician’s total discharge report DID NOT satisfy the requirements of 9785(b)(3) because, while the PTP had released applicant with no limitations, restrictions, and provided no future medical care, he did provide that some symptoms “could be further evaluated with MRI as clinically warranted” and that she should engage in home exercise with a stationary bike, poor therapy, ice, use of knee brace and foot orthosis, and ibuprofen…”, and also failed to address one of the admitted body parts at all.

In other words, applicant doesn’t need any further medical care… but she does need further medical care.  Is that clear enough?

Applicant sought a second opinion in the MPN, although your humble blogger can easily be persuaded this was as much a tactical decision as just needing a physician to make a clear and internally consistent recommendation for further medical care.

After a hearing, the WCJ ruled that the treating physician’s report did not constitute a total discharge, and that by denying a second opinion treating physician, the defendant had denied care and applicant could now treat outside of the MPN.

However, on reconsideration, a split panel held that although the treating physician’s report was internally inconsistent, and would warrant a change in treating physicians, applicant had requested a second opinion rather than a change in PTP.  Because of the internally inconsistent report, the defendant should have authorized a second opinion physician.  However, the failure to authorize a second opinion physician did not constitute a denial of medical treatment, and thus did not justify applicant treating outside of defendant’s MPN.

One commissioner dissented, reasoning that relying on such an internally inconsistent report, even for the purposes of denying a second opinion within the MPN, constituted a total denial of care that should have allowed applicant to treat outside of the MPN.

Of interest here is that two of the three commissioners seemed to hold that a second opinion could be used to contest a total discharge… something that seems at odds with the prior holdings mentioned in the Acosta panel decision, which cited section 9785(b)(3) to say that “[i]f the employee disputes a medical determination made by the [PTP], including a determination that the employee should be released from care, the dispute shall be resolved under the applicable procedures set forth in Labor Code section 4060, 4061, 4062, 4600.5, 4616.3.”

By contrast, section 9767.7, regarding second and third opinions, limits the second opinion process to “diagnosis” or “treatment” by the PTP, which your humble blogger would submit excludes disputes related to discharge or the lack of need for ANY future medical care.

But this case should remind us that we need to carefully scrutinize the reports of treating physicians – a conclusory report is insufficient for retaining medical control.  It may be necessary to follow up with the treating physician to request a supplemental report that properly addresses any apparent internal consistencies.

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Cornejo Case Revisted: WCAB To Reconsider Requiring Copy Services be Bonded

March 18th, 2016 No comments

Happy Friday, dear readers!

I hope you had a wonderful St. Patrick’s day, with a bit of safe revelry on the one hand, and some traditional Irish cuisine on the other.

As the “luck of the Irish” would have it, defendants have had their hopes rekindled in the form of Cornejo case.  As my readers will recall, the WCAB ruled, en banc, that attorneys need not use “bonded” copy services when attempting to obtain records.

Well, the defendant was unhappy with this result, and, in response to its Petition for Reconsideration, the WCAB has granted the petition “to allow sufficient opportunity to further study the factual and legal issues in this case.”  In other words, there is potential for a different ruling – one that would require copy services to prove proper registration in order to collect on their liens.

What does this mean for defendants?  Well, copy services liens can be frustrating, but most of the attention of the Workers’ Comp community is now directed to the Court of Appeal to see what kind of law we can expect on the status of late IMR decisions: binding or no?

Obviously, your humble blogger is hopeful that the WCAB will be persuaded that that professional copy services need to be bonded in order to collect on their liens – after all, who else would the law apply to if not professional copy services, even when they are retained by law firms?

In the meantime, perhaps defendants could use this uncertainty to split the proverbial baby with existing lien claimants and resolve liens at an “uncertainty” discount.

Here’s hoping for the best, dear readers!

Special Thanks to S.O. for the tip!

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WCAB: No non-Treatment Reports to the PQME!

March 16th, 2016 No comments

Correction: This is a PANEL decision denying removal, and NOT a writ denied case – the Humble Blogger.

Hello, dear readers!

Your humble blogger brings you greetings this Wednesday, with a report on the matter of the recent case of Roberts v. City of Los Angeles, in which the WCJ found, without reversal by the WCAB, that defendant’s efforts to keep certain records away from the PQME should be crushed!

Applicant claimed a cumulative trauma and the parties, unable to agree on a medical evaluator, obtained a panel.  Defendant argued that it should be able to send the PQME certain non-medical information, namely the report of an independent epidemiologist who was not made part of the case by the treating physician.

The WCJ denied defendant’s request, reasoning that Rule 35(e) specifically prohibits sending a PQME “any evaluation or consulting report written by any physician other than a treating physician, the [PTP] or secondary physician, or an evaluation thought he medical legal process… unless that physician’s report was first ruled admissible by a [WCJ].”

The WCJ opined that the report by defendant’s retained epidemiologist appears to be an expert report with an analysis on industrial causation and a defense-friendly conclusion.

The WCAB denied defendant’s petition for removal.

If this sounds familiar, my beloved readers may recall a blog post or two on 4050 exams, which the WCAB seems keen on keeping away from QMEs.  Although the 4050 exams seem to be acceptable for the purposes of preparing defense attorneys for cross examination of QMEs, 4050 reports, or independently retained expert reports, are not to be put before the QME for consideration.

But, here’s what your humble blogger is missing… aren’t we all familiar enough with the show Jeopardy to phrase our answers in the form of a question?  If you already have the reasoning and the conclusions from your own expert, why can’t those theories be phrased as questions in a cover letter to a QME?   Why can’t they be used to guide cross-examination or a supplemental report?


Of course, your humble blogger is disappointed in any defendant’s call for aid to be unanswered by the WCAB commissioners, but there are surely greater tragedies in the world.

Happy Wednesday, dear readers!

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Assisted Suicide Coming to California!

March 14th, 2016 No comments

Good Monday to you, dear readers!  Are you still reeling from the daylight savings time change (which, in part, explains the lateness of today’s blog post)?  Your humble blogger is not a big fan of change… let alone time changes that upset routines.

Anywho, I have a rather grim topic for my beloved readers today – suicide.  Now, as we know, Labor Code section 3600(a)(6) bars recovery for any claim where an employee has “willfully and deliberately caused his or her own death.”

But, California is not monolithic in any sense.  We have areas of the State focused on agriculture and other areas focused on future technology and space travel, allowing Californians to grown ancient crops on “smart” soil.  We have Health and Safety Code section 11362.785(d) which specifically holds that health insurance will not be required to reimburse costs associated with the use of medical marijuana, and we also have a medical marijuana program, allowing Californians to take a puff of green weeds while smoking away their green bills.

Starting June 9, 2016, we will have yet another such contradiction: the End of Life Option Act will allow an adult with a terminal disease (likely to result in death within six months), to be provided with a lethal overdose of drugs if he or she wishes to end his or her life.  Just think of the implications for workers’ compensation:

Would the workers’ compensation insurer be expected to pay for this lethal dose?  After all, if the symptoms of an industrial injury are such that they are causing excruciating pain and suffering, wouldn’t the medical overdose “cure or relieve from effects of” the injury? (Labor Code section 4600(a)).

Would the employee’s dependents (or the death without dependents unit) be entitled to death benefits?  When the effects of an industrial injury causes a psychiatric condition, which ultimately results in an accidental overdose or intentional suicide, the death has been held compensable even in the face of section 3600.  What happens when the symptoms resulting from an industrial injury lead the injured worker to contemplate suicide?

What happens when the condition is the result of a synergistic effect between an industrial injury and an on-industrial one?

One of the requirements of the act is that a physician certify that the condition is likely to be terminal within the next six months.  But is it really unrealistic to think that a physician will certify something as terminal even when it’s not, especially when the likely result of the condition is a lifetime of pain and suffering?

There are physicians now that gleefully wink and nod and put injured workers on temporary disability or fudge the causation analysis because of some misguided self-perception of an “advocate” or to secure future referrals from the applicants’ bar.  There are even doctors, some might describe aptly as evil, that refer uneducated injured workers to unnecessary spinal surgeries, to be maimed.  Is it really beyond the scope of probability that there are compassionate doctors out there, ready to falsely certify a condition as terminal at the request of suffering patients?

Section 443.13(a)(2) of the Act holds that “death resulting from the self-administering of an aid-in-dying drug is not suicide, and therefore health and insurance coverage shall not be exempted on that basis” but 3600 does not use the word suicide, only that the employee “willfully and deliberately caused his or her own death.”

Needless to say, this law is a serious one, and will offer serious implications in those grim cases where it intertwines with workers’ compensation.  As the saying goes, dear readers, send money, guns, and bloggers lawyers.

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Then the QME Said “LOL. U R P&S” or How I Learned to Stop Worrying and Love Telemedicine

March 11th, 2016 No comments

Hello dear readers!

Your humble blogger brings you greetings and trusts your week has gone well: claims denied, URs upheld, and 5710 fees disputed.

An interesting thing happened on one of your humble blogger’s panels: There was an asterisk next to the name of one of the PQMEs listed on a panel with the words “via telemedicine.”

Fortunately, the parties had elected to use an AME before this panel even issued, but what fun it would have been to litigate this issue and its implications!

Anywho, WorkCompCentral reports that the DWC has allowed this QME to conduct telemedicine examinations, with a medical professional physically next to the injured worker to conduct the measurements and guide the exam, and the evaluation would be conducted in real time over Skype or some other teleconferencing method.

Your humble blogger anticipates a typical medical-legal exam conducted via telemedicine will look something like this:

The buzz around the copy rooms at the various workers’ compensation Boards and among the voices inside your humble blogger’s head ask whether this is a good idea.

I would submit that, if done properly, this can actually be a pretty good thing.  There is a benefit to expediting resolution of claims by allowing QME flexibility and availability.

What would be great about the video-conferencing is that the QMEs would become more available to do exams.  My current record is going through 4 panels before the last QME standing was able to timely set an appointment, and each new panel typically adds a month of delay as the medical unit must process the request.

Audio and video recording of evaluations would also benefit the truth (there’s a camera running anyway) so that we would know exactly what was said and the full range of motion taken or grip strength etc.  It would also be fantastic to not have to doubt about accurate communication between QME and injured worker, or accurate recording by the QME into his or her report.

We also wouldn’t have to doubt how much time was actually spent conducting the examination (sometimes QMEs overcharge; other times applicants claim the QME only spent 30 minutes face-to-face and so couldn’t possibly have written a good report).

Now here’s the downside: how are you going to depose the good doctor after this quack report upsets the perfect theory you had developed for your client’s path to victory at the outset of the case?  You can bet dollars to donuts he has no interest in flying from Doctortopia to Lawyer Island just to be challenged on his opinions, formulated as they were on nothing more than his “training and experience.”  And if you think teleconferencing is going to work for a deposition, try handing Exhibit A to the nice man in the white coat on the screen (I’ve tried, it and it doesn’t work).

There’s no indication just yet that we’re going to have widespread skype evaluations anytime soon, but it’s certainly a proposition that warrants exploration.

What do you think, dear readers?  Are there gains to be made here by turning the sacred ritual of the medical legal-exam into a litigated version of Saturday morning cartoons?  Or, is this Pandora’s box, soon to relieve all of us of our livelihoods?

Have a great weekend!

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Prison Guard Shot at Swingers Club; Claims it was Former Inmate (Not Fellow-Club Goer)

March 9th, 2016 No comments

Hello dear readers!

Your humble blogger is well aware that Valentine’s Day is over, and that we have put away all thoughts of chocolate and flowers, romance and love, and are now back to our hard-hearted ways of workers’ compensation.  But, if you’ll allow me, I’d like to pull a little at your heart strings, and relate to you the love story of a man and woman inseparable in their outings and their dealings with the workers’ compensation industry alike.

Business Insurance reports that John Smiley and his wife, Cynthia Biasi-Smiley, have been convicted of workers’ compensation fraud.  Mr. Smiley, a former correctional officer, was shot outside a club in San Francisco, and claimed he recognized the gunman as one of his former inmates.

Apparently, Mr. and Mrs. Smiley decided to visits a “swingers” club in San Francisco… one of those places where people go to “share and share alike”.  After their “encounter”, an argument broken out and Mr. Smiley was shot by the “male companion” of one of the other club-goers.

He then filed an application for adjudication of claim, alleging that this was work-related because he had been shot by a former inmate, even though he knew full well this had nothing to do with his work.  His wife filed a lien for in-home care taking care of her husband.

Now, as we know, acts of violence perpetrated against employees can be compensable.  The issue is usually a factual inquiry: was the injury or death caused by a “personal risk” or by a risk likely to affect any worker on the job?  So, for example, if a liquor store gets robbed, and the poor guy watching the counter is murdered as part of the robbery, the claim would be compensable.  But, if the defendant can establish that, for example, the robbery was a cover for a personally motivated murder (unrelated to the victim’s job or job duties), then the claim would, in theory, be barred.

In this case, someone whispered into Mr. and Mrs. Smileys’ respective ears and they filed a workers’ compensation claim, changing the original story they gave the police, feigning ignorance for the reason for the shooting, only to claim that it actually was work related… so make with the money!

Look, the sentence here is pretty light – being shot is a bad enough punishment, as is losing a state job and retirement benefits, etc.  But, we can all profit from this story: there are a lot of reports of injury that are fairly legitimate, but when you start getting into “hmmm… that’s odd…” or “what are the odds!?!?” territory on the mechanism of injury, it’s time to start investigating.

In this case, there was a shooting, and that kind of thing generates paper: police report, newspaper articles, etc.  But there won’t always be a paper trail available – usually it will just be a co-worker mentioning a Christmas afternoon football game injury that quickly preceded a Monday morning back strain.  It’s worth following up on and investigating, both to but the Kaibosh on the instant case and discouraging fraudulent claims in the future.

To quote my favorite swingers: “You’re so money and you don’t even know it!”

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Failure to Show Proof of Timely UR Communication Invalidates UR Denial (Again)

March 7th, 2016 No comments

Hello, dear readers!

Monday is once more upon us and your humble blogger’s crazy ravings are once more upon your screens!

Today’s blog post touches on everyone’s favorite topic in workers’ compensation: Utilization Review!

In the writ denied case of Visger v. San Francisco 49ers, where the WCJ and WCAB held that applicant was entitled to medical treatment because the UR report denying it was “untimely” in that it was not communicated to the necessary parties (applicant; applicant’s attorney; and the treating physician requesting authorization for the treatment), as required by California Code of Regulations section 9792.9(c)(4) (“Decisions to modify, delay or deny a physician’s request for authorization prior to, or concurrent with the provision of medical services to the injured worker shall be communicated to the requesting physician initially by telephone or facsimile.  The communication by telephone shall be followed by written notice to the requesting physician, the injured worker, and … the injured worker’s attorney within 24 hours of the decision for concurrent review…”).

Mr. Visger’s primary treating physician submitted an RFA on March 7, 2014 requesting a particular form of medical treatment, which utilization review denied on March 14, 2014.  Applicant then sought to invoke WCAB jurisdiction on the premise that UR was untimely.  Now, under section 9792.9(b)(1), UR needs to provide a determination within 5 business days from receipt of the RFA, but the challenge was one which we’ve seen previously on this blog, namely that the parties weren’t informed, in writing, within 24 hours of the determination being made.

From the WCJ’s Report and Recommendation: “Defendant argues that the UR contains a ‘cc’ show it was sent to [the necessary parties] but this is not proof that the letter was timely communicated to [the necessary parties].  No evidence of where the letter was sent from, no proof of service, postmarked envelope, fax indica or other proof of receipt was offered by Defendant.”

Your typical physician is going to have a fax machine and, now-a-days, an e-mail address.  Your typical applicant’s attorney is going to have the same.  How are you supposed to communicate a UR determination within 24 hours to an applicant that might have neither – and is under no obligation to provide the defense with that information even if he has it?

After all, the WCJ’s opinion says that there is no evidence the UR determination would have been received “by Applicant and his attorney in California within the statutory time.”  But let’s look at the language in Bodam, which is the current authority that a timely UR is made untimely by failing to properly communicate the determination: “defendant’s UR decision is untimely because written notice was not sent to [the PTP], applicant, and applicant’s attorney within two business days after the UR decision was made.”  (Bodam v. San Bernardino County (2014) 79 CCC 1519, 1523; emphasis added).

So, at least by your humble blogger’s reading, the standard is not receipt of the UR determination within two days, but proof that it was sent within two days, as per Bodam.  Though not an en banc decision, Bodam was a “Significant Panel Decision.”

This means that a timely UR determination should be faxed or phoned in to the requesting physician within 24 hours, and written notice should be sent to the applicant and his or her attorney within 48 hours of a determination.  UR vendors should be encouraged to make it easy on us defense attorneys by including either a proof of service or a fax transmittal log with every report.

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