WCDefenseCA

In Russia, they call it “Dein.”  In Israel they call it “Yom.”  In Spain (and most of South America), they call it “Dia.”  And, in California’s workers’ compensation system, we call it confusing.

What is a day? When does it start and when does it stop?

In the recently writ denied case of Green v. Elle Placement, an RFA was received by facsimile at 6:18 p.m. on Friday, April 17, 2015, and a UR denial issued on Monday, April 27, 2015, at 6:18 p.m.  Treating the RFA as received on Monday, April 20, the following Monday, April 27, 2015, would have been the 5^th working day.  Was a 6:18 p.m. facsimile late? Or was it still part of that 5th working day?

Well, the matter proceeded to trial (this is for an artificial disc replacement arthroplasty and two days inpatient stay, so it is probably worth the litigation dollars), and the WCJ found that if a business day ends for an RFA at 4:30 p.m., then the business day likewise ends for a  UR denial at 5:30 p.m., rendering the UR decision invalid as untimely.

The WCJ cited Labor Code section 4600.4(a), which states that “a workers’ compensation insurer … shall ensure the availability of [UR] services from 9 a.m. to 5:30 p.m.”

What was defendant’s response?  The decision was made in on the 5th day, prior to the 5:30 p.m. cut-off, as required by Labor Code section 4610(g)(1) (“prospective or concurrent decisions shall be made in a  timely fashion that is appropriate for the nature of the employee’s condition, not to exceed five working days from the receipt of the information reasonably necessary to make the determination…”) but the communication of that decision affords an additional 24 hours.

After ruling that the UR decision was untimely, defendant sought reconsideration.  The WCAB panel granted recon, noting that the 5-day limit of 4610(g)(1) applies once the reviewer has all the necessary information, and, in this case, “there is no evidence of when the UR reviewer received the information reasonably necessary to make the determination.”  Furthermore, the panel majority found that there is no evidence indicating the determination was untimely and that the likely scenario is that the determination was made during regular business hours, and only communicated after 5:30 p.m.

The dissent argued, instead, that there is no support for the contention that the act of communication adds 24 hours to the 5-day limit to make a determination, and would have denied reconsideration.

Granted, dear readers, this is a split panel decision, writ denied though it is.  It has no binding precedent and, at best, indicates the inclination of each of the respect commissioners in interpreter the relevant codes and statutes.  There’s no binding precedent here.

But, that being said, what is the guidance from this opinion as to the following questions:

Does a working day or business day end at 5:30 p.m.?  Can this time limit be applied to the day calculations?  For example, Labor Code section 4062.2 allows a party to request a panel on the “first working day that is at least 10 days after the date of mailing…” a request for evaluation or objection.  But the California Code of Regulations section 30(b) treats all panel requests made after 5:00 p.m. as being received on the next day.  It would appear that this panel decision would hold that the “first working day” would effectively start at 5:31 p.m. on the previous day, but the regulation would instead place the cut-off at 5:00 p.m.  Panel dispute trials have been held for less.

Here is another thought – who bears the burden here?  The majority noted that “there is no evidence of when the UR reviewer received the information reasonably necessary to make the determination.”  Does that mean that the burden is on the applicant to prove when all necessary information was received by the UR physician?  Short of the PTP faxing all relevant reports with the RFA directly to UR, how would this be established?

Also, the majority rejected the inference that the determination was made at the same time as the communication (after 5:30 p.m.)  Who bears the burden in documenting when the determination was made?  Is the determination automatically the date of the report?  But what if the report was written 25 hours prior to being communicated?

This is a great decision for the defense, and hopefully it will be adopted by more commissioners as these cases come up again and again.  However, your humble blogger submits that the defense community would be better off in avoiding the exposure from the get-go: given the state of telecommunication, it isn’t that difficult to fax a UR report prior to 5:30 p.m.

As my beloved readers are well aware, every year we do a check to see what the average weekly wages were in California, and any resulting increase will determine if increase in the minimum and maximum for temporary total disability benefit rates.

Well, the results are in for the first quarter of 2016, which saw an increase in California’s average weekly wages from $1,120.67 to $1,164.51, which reflects a 3.9% increase.  The resulting increase to the statutory maximum in TD rates, raising it from the current maximum of $1,128.43 to $1,172.57 for injuries sustained after January 1, 2017.  The new minimum will be $175.88 up from $169.26.

But… that’s not all!

Labor Code section 4661.5 provides that any TD benefits made two years or more after the date of injury will also get the benefit of the new minimum and maximum.  Starting January 1, 2017, you may want to adjust TD rates for any injuries sustained prior to January 1, 2015.

Finally, don’t forget to adjust any life pension payments for post 1/1/2003 dates of injury to reflect this increase.

It might make sense to note this on your files now as reminders for January 1, 2017 – there are probably more than a few cases out there that might warrant a rate change come the new year.

Hello dear readers!

Your humble blogger is bursting with delight to bring you news of a great victory for defendants everywhere: IMR is not bound by time limitations!

The Court of Appeal ruled in the matter of CHP v. WCAB, Margaris that “the 30-day time limit in section 4610.6, subdivision (d), is directory and, accordingly, an untimely IMR determination is valid and binding upon the parties as the final determination of the director.”  What does that mean?  That means that it doesn’t matter how long it takes IMR to decide on an issue – the parties must sit and wait and be bound by the eventual determination.

IMR Is Never Late. Nor is it early. It arrives precisely when it means to.

Why is this such a good thing for defendants? Well, medical treatment isn’t medical treatment to the defense – it’s money.  Every day that the defendant does not have to pay for a treatment that is medically unnecessary is another day that the defendant gets to protect its money from wasteful spending.  Less money out means lower rates and less exposure for businesses and employers.  That, of course, means lower prices for the rest of us.

The Court of Appeal noted, of course, that it was implementing “the Legislature’s stated policy that decisions regarding the necessity and appropriateness of medical treatment should be made by doctors, not judges.”

As my learned and diligent readers may recall, the Court of Appeal held in Stevens that not only is IMR constitutional, but that there is no mechanism for enforcing the time limits imposed by section 4610.6 – even a late IMR determination is constitutional.

One of the great things about this is that the fact that IMR has more time to make a determination once UR has denied treatment is that it puts parties in the proper posture to settle their case.  Yes, the applicant wants a particular course of treatment.  No, it isn’t medically necessary or reasonable.  But, through the magic of money, the parties can agree to disagree – an injured worker can sell out the treatment to which he is entitled but doesn’t want, in order to buy the treatment he wants but to which he isn’t entitled.

And the best part is – everybody walks away happy and a winner.

Have a great weekend, folks!

It’s Wednesday, dear readers – and you know that means… another blog post!

Today’s post is about everyone’s favorite topic – UR!  Often enough, we in the defense community are faced with a late UR report – maybe the vendor made a late determination; maybe the vendor made a late communication; maybe the vendor was late with both!

When faced with this situation, and while trying to avoid an order to provide medical treatment, lots of options are available.  For example, you could sneak into applicant’s attorney’s home and turn all the clocks and calendars back one day, replacing all newspapers with copies of yesterday’s edition and then trying, with one’s best poker face, to convince opposing counsel that the report was actually on time… (just a joke, dear readers, please don’t actually sneak into anyone’s home!)

In the recent pane decision of Hill v. California Highway Patrol, defendant argued that the underlying RFA was defective itself.  To wit, defendant argued that the RFA was invalid because it did not cite the Medical Treatment Utilization Schedule (MTUS).

The treatment in question was a “back defender” system to help applicant-investigator carry his duty belt which weighted heavy on his back, the subject of a stipulated award from 2008.  The system would essentially transfer the 25 pounds of the duty belt from applicant’s hip and back to his shoulders.

Not The Back Defender – But it Would Be Awesome if it Was!

Defendant argued that unless the treating physician’s RFA either cites the MTUS or explains why the MTUS doesn’t apply, the RFA is invalid.  The WCJ disagreed, citing, instead Sandoval v. San Diego Unified School District (a 2016 panel case) where the commissioners held that “a requesting physician’s report need not cite to the MTUS in order to comply with Labor Code section 4604.5.”

So, what did the commissioners do with this one?

The commissioners ruled that, much like the WCJ opined, the defendant had blown the deadline for a valid UR determination.  However, the PTP’s recommendations are still subject to the standards of Labor Code section 4610.5(c)(2).  Specifically, the employee bears the burden of proving that the treatment is reasonably required, and the underlying RFA must “refer to any applicable standards under section 4610.5(c)(2) to support his opinion that the Back Defender System is reasonable and necessary.”

The WCAB ordered the matter to return to the trial level for the WCJ to conduct further discovery to develop the record.

Now, here’s something that’s a bit unfair to the defendants.  In her report and recommendation, the WCJ opined that “[a]ny UR determination made now on the request for a back brace would be untimely… since utilization review was not conducted within five working days of the [PTP’s] request, it is too late to conduct it now.”  And that’s fair – it’s too late for the defendant to conduct UR.

However, shouldn’t it also be too late to conduct any further discovery?  Why should the PTP get an opportunity to cure any defects in his RFA with a supplemental report if it is too late for defendant to cure an untimely UR?  As it stands now, it is very likely that applicant cannot carry his burden of medical necessity without further evidence – such as a more detailed report from the PTP.

That aside, this back defender system runs about $200, which might get eaten up with one UR and one IMR.  The back defender system or the particular treatment in this case is not the point.  The point is that less money could be spent on litigation and more money on providing benefits if treating physicians did the leg work to justify their recommendations in the RFA.  If the request for authorization cannot be justified medically, then perhaps the request should not be made.

Unfortunately, as it stands right now, there does not appear to be any binding authority that can be cited for the proposition that the RFA must cite the MTUS to trigger defendant’s UR obligations.

Hello, dear readers!

Your humble blogger greets you this very-beautiful Monday morning.  The sun is shining, the bees are buzzing, and the birds are singing energetically from their heights in the trees.

Speaking of buzzing, your humble blogger brings you news that another series of jobs that might be cycled out and replaced with workers that require no breaks, no overtime pay, and absolutely no workers’ compensation coverage.

Engadget.com  reports on a “swarm of small robots” used to move vehicles like so…

As you can imagine, these little guys will replace quiet a few previously-human jobs.  Going to load cars into a freight contain for shipping? These robots will pack them in a lot tighter than a human driver (who might need space to open a car door) could.  Need to move these around the factory? The little robots can operate without putting extra miles or wear-and-tear on new cars.  Is the car suddenly inoperable and blocking traffic? Use these robots to get it out of the way.

Coincidentally, if your criminal organization is searching for a reliable car thief, look no further…

Valley parking, towing industry, shipping and transportation of cars – all of these have occupation codes in the rating schedule.  What’s more, the jobs that aren’t entirely replaced can be made more safe and less likely to cause injury.

And, as time goes on, we can expect these robots and similar knock-offs to get cheaper – much cheaper than, for example, paying higher premiums for workers compensation.

I know it might seem scary – but fear not! Your humble blogger expects that workers’ compensation defense attorneys are immune to automation.  And,  I think we can all agree, preserving your humble blogger’s livelihood is what we’re all striving for… right?

Happy Friday, dear readers!

Your humble blogger brings you reports of yet another workers’ comp fraudster biting the dust – Linda Boggess was convicted on four counts of workers’ compensation fraud, as reported by the Ventura County Star.  As reported by the Star, Boggess reported “pain” in 2007, and, after receiving benefits was cleared to return to work in November of 2011 without restrictions.  She then obtain a 5-pound lifting restriction from another physician.

An investigation yielded surveillance footage showing applicant lifting 45-pound tires; applicant testified at deposition that she could lift no than a gallon of milk (for the folks keeping score at home, a gallon of milk is roughly 8 pounds, and, yes, 45 pounds is much heavier than 8 pounds.)

The sub rosa was a sweet catch, but your humble blogger’s “Spidey senses” tell him that someone tipped the employer off.

As always, your humble blogger feels obligated to point out that the employer now has a Pyrrhic victory on its hands – the benefits have already been paid out, and it will have a hard time getting them back from the fraudster.  One possible benefit of a conviction for fraud is that lien claimants stand in the shoes of the applicant, and applicant’s shoes are on some pretty weak footing at the moment.

On the bright side, however, if enough of these stories get prominent display in the news – if it becomes common knowledge among Californians that fraud is investigated, prosecuted, and punished – perhaps the frauds out there will be less likely to do ply their dirty trades.

Have a good weekend, dear readers!

Hello, dear readers!

Your humble blogger is all for making more money, of course, but certain ethical and moral instincts in my cold, hard, defense attorney heart militate against driving up defense attorney costs for no good reason.  So, as my hands are clenched in fists of rage, relaxing only to type this blog post, I bring you the case of Czech v. Bank of America, which I hope explains the title for today’s post.

Basically, the primary treating physician transmitted the Request for Authorization to the defense attorney and not to the claims administrator.  The matter proceeded to an expedited hearing and the WCJ awarded treatment to the injured worker, ruling that communicating the RFA to the defense attorney was sufficient to trigger defendants obligations under utilization review.

Defendant argued that California Code of Regulations section 9792.9.1(a), requires transmittal of the RFA to the claims administrator rather than ANYONE ELSE IN THE UNIVERSE.  So, the defendant argued, faxing it to the defense attorney is not enough.  The WCJ characterized this as a “hypertechnical interpretation” and found that a defense attorney has a duty to communicate the RFA to the claims administrator.

On reconsideration, the WCAB panel ruled that the defendant had a duty to conduct a good faith investigation and provide benefits when due, citing California Code of Regulations section 10109, and that if the defendant is alerted to a possible RFA out there somewhere, even without having received it, diligent steps are required to obtain the RFA and refer it to UR.  Reconsideration was denied.

Lexis has a good discussion of this case here, but characterizes this as a triumph of common sense over the regulations.  Your humble blogger begs to differ.

Do we remember the en banc case of Cervantes v. El Aguila Food Products, Inc.?  Therein, the WCAB specifically held that 2011 8 CCR 9792.6 (you’ll have to look at the 2005-2012 version of this one, folks) required that a narrative report’s request for authorization, if not using the RFA form, “be clearly marked at the top that it is a request for authorization.”

The language used by the en banc opinion was that “claims adjusters routinely receive numerous medical reports from treating physicians.  Therefore, if in a spinal surgery case a particular report might trigger the 10-day deadlines for a defendant to both complete UR and make a section 4062(b) objection, then the defendant should be given clear notice that authorization for spinal surgery is being requested.”

Notice, that there was no consideration of so-called “common sense” by the en banc WCAB, but only the strict requirements set out by the regulations.

Well, adjusters are still swamped, and that’s why many of them don’t even want the RFAs, which are supposed to go straight to the UR vendor.

What happens when the RFA is sent to the defense attorney instead?  The defense attorney has to process it and determine if it was sent only to the defense attorney or if this is just a courtesy copy.  Then the defense attorney has to forward this to the adjuster who is already dealing with a tidal wave of e-mails and tasks throughout the day.  You can add a few dollars to the litigation bill already.

Or, the attorney could forward it to UR, right? This would, of course, usurp the role and responsibility of the adjuster and possibly even make the defense attorney a witness as to when the RFA was forwarded to UR.

All in all, it just creates a mess.

Now, what about the other way around – can we, as defendants, skip serving the injured worker and just serve his or her attorney with documents?  So when we’re seeking to dismiss for lack of prosecution (see California Code of Regulations 10582) we can just skip the requirement of informing the injured worker, right?  We can also send benefits directly to the applicant’s attorney’s office and all benefits notices too, right?

Well, if we tried to do that, we’d get an angry call to action by the applicants’ bar claiming to be overburdened with having to hold benefits in trust and with countless citations to the regulations and caselaw requiring strict obedience to the rules.

Your humble blogger submits that if a sauce is good for the goose, it’s good for the gander: the treating physician need only fax the RFA to UR or the administrator, as specifically spelled out in the regulations.  Whatever defendant’s failure to conduct a good faith investigation by not scouring the Earth for the RFAs that might be out there, such failures should not trigger the time restrictions for UR.  The same duty of good faith investigation existed when the Cervantes opinion issued, and the same rationale could have applied there but didn’t.

Happy Monday, dear readers!

Have you had enough blog posts about Utilization Review yet? What? WHAT?!? Ok, calm down – we’ve gone over this before… I can’t actually hear you screaming into your computer screen, so I’m going to assume that you haven’t had enough UR posts yet and you’re just dying for more!

Submitted for your consideration is the case of Wells v. Seltzer, Fontaine, Beckwith.  The skinny on the facts is that applicant sought to use her future medical award as part of the stipulated award from the CT claim.  Her Primary Treating Physician (what the cool kids in comp refer to as the “PTP”) submitted an RFA for various drugs on March 26, 2015, and the RFA was referred to UR, which requested additional information on April 2, 2015 (for the folks keeping score at home, that’s 5 working days or 7 actual days later).

On April 7, the RFA was denied pending receipt of the additional information requested.  (Again, folks, that’s 8 working days and 12 actual days).  Now comes the crazy fact that makes this so interesting: the request for additional information was not signed by the UR physician!

At an expedited hearing, applicant argued that Labor Code section 4610(e) holds that “only a licensed physician” can modify, delay, or deny requests for authorization of medical treatment.  Defendant’s response was to cite section 9792.9.1(f) of the California Code of Regulations, allows non-physician reviewers to delay making a determination to get additional information (see subsection (f)(1)(A) and (f)(2)(A)).

The WCJ adopted applicant’s position and held that a delay notice must be signed by a physician.

On reconsideration, the WCAB rejected the WCJ’s position, noting that the Labor Code’s requirement for delays to be made by physicians is only when there is actually a decision to modify, delay, or deny a request, which is distinct from simply requesting more information.

Applicant’s petition for review by the Court of Appeal was denied.

If any of this sounds familiar, it should – the facts are almost identical to those of Newton v. Jack-in-the-Box.  So, in defense of UR denials based on unanswered requests for additional information, defendants now have to panel cases upon which to rely.

Small miracles, dear readers – take them as they come!

Happy Friday, dear readers!

One of the cases making the rounds and being discussed at the proverbial water coolers is that of Lopez v. City of San Francisco.  To cut to the chase, the issue presented was whether a request for authorization submitted by a secondary treating physician was subject to Utilization Review.  Or, another way to ask it – is the insurer/employer free to ignore RFAs by secondary treating physicians.

As we all know, California Code of Regulations section 9785 provides that an injured worker can only have one “primary treating physician” at a time (subsection (b)(1)) and a “secondary physician” is any physician other than the PTP who examines or provides treatment to the employee.

The panel of commissioners held that even though the RFA comes from the secondary treating physician, unless the employer wants the determination of medical necessity made by a judge on the merits, the employer must timely conduct utilization review.

Unless there’s a statutory amendment on the horizon, defendants would be well served to submit secondary treating physician requests for authorization to Utilization Review.  The only mitigating factor is the fact that under Labor Code section 4610(g)(6), a UR determination will typically stand for one year, unless the RFA is submitted by a new physician or there is a change in circumstances.

One of the frustrating things about this decision, however, is that an applicant can have any number of secondary treating physicians, who could all take turns submitting the exact same treatment request until there is a late UR report or a UR physician finally agrees.  In the meantime, defendants have to keep paying for every UR.

One of the things that should be considered when trying to see the forest behind all those pesky trees is whether it’s worth it: whether the cost of UR and IMR and the litigation surrounding both is worth the cost of the treatment.

Sorry folks – no good news for the defense community today.

Have a great weekend!

Happy Monday, dear readers!

Your humble blogger has a fun exercise for you today.  Don’t worry, you don’t have to do any actual exercise and this won’t interrupt coffee time.

Bring up your favorite MPNs and do a search for Phong Hung Tran.  If Dr. Tran is in your MPN, or if any of your files have him as a treating physician, you may want to take action now…

According to the Orange County Register, Judge Eugenia Eyherabide has ordered Dr. Tran to stop treating patients as of June 3, 2016, pending the resolution of his criminal case (the one where he is accused of bribery and insurance fraud).  Dr. Tran is likely in a hurry to conclude the criminal matter.  I guess you could say the good doctor is out of … patients!

It doesn’t look like Dr. Tran is a QME, but even if his name doesn’t come up specifically, some MPNs might have his clinic listed – Coastline Medical Clinic at 15606 Brookhurst Street, Suite A, Westminster, CA 92683.

Furthermore, any liens, potential or filed, should also be addressed in light of the Order and pending criminal prosecution.

Now, as an aside, your humble blogger would have you remember that, in addition to being a zealous attorney, snappy dresser, and scotch enthusiast, your humble blogger is also a citizen and encourages his beloved readers to take the time to go vote tomorrow – California’s Primary Election is upon us.  If none of the so-called “main” candidates strike your fancy, I urge you to write in “humble blogger.”

As for my platform, I promise to bring you what is best in life…