WCDefenseCA

Hello, dear readers!

Welcome to 2016 – your humble blogger has missed you greatly, and is excited to make this year the Year of the WC Defendants!  We will sanction the lien claimants; we will make a mountain of 5710 fees denied by the WCAB; and hang from the battlements enlarged copies of IMR affirmations of UR determination denying $25 seat cushions…

Anyway, since we’re all just trickling in from vacation, I thought I’d offer a quick recap of some of the things that we get to look forward to as of January 1, 2016:

As you will recall, minimum wage is California has gone from $9/hr to $10/hr, although local governance might have the rate even higher still.  You may want to adjust TD calculations accordingly if you have any full-time minimum wage earners.

Mileage reimbursement goes down to 54 cents per mile (from 57.5 cents)

Assembly Bill 202 took effect on January 1, 2016, statutorily moving cheerleaders for professional sports teams from independent contractors to employees, entitled to workers’ compensation benefits.

Additionally, any liens filed prior to January 1, 2013, for which there has not yet been an activation fee paid, are dismissed by operation of law, as of January 1, 2016.

Finally, for injuries sustained after January 1, 2016, the TD rates are at a minimum of $169.26 and the maximum is $1,128.43.

What do you think dear readers? Has your humble blogger missed anything of significance?

Happy New Year, dear readers!  I’ll see you folks, bright and early, next Wednesday!

Happy Monday, dear readers!

I bring to you the case of Millette v. 81 Grand holdings, Inc., a recent writ-denied case having to do with deferral of utilization review.  Applicant sustained an injury for which no denial was issued within 90 days of it being reported, and defendant provided neck surgery.  Following the surgery, various treating physicians requested several forms of treatment, all of which were deferred by the defense because “causation is in dispute.”

Applicant filed for an expedited hearing, and the WCJ awarded treatment, reasoning that California Code of Regulations section 9792.9.1(b) requires a “clear, concise, and appropriate explanation of the reason for the claims administrator’s dispute of liability for either the injury, claimed body part or parts, or the recommended treatment.”  The WCJ found that “causation is in dispute” did not satisfy the requirements of the regulation.

On reconsideration, defendant argued that this order would bypass utilization review, but the WCJ, in his report and recommendation, relied on subsection (D) of 9792.9.1, which provides that the injured employee may use “the dispute resolution process of the [WCAB].”

The WCAB denied reconsideration and the Court of Appeal denied review.

Of interest in this case is that defendant was put in a position where the injury was presumably compensable, as per Labor Code 5402(b) (“[i]f liability is not rejected within 90 days after the date the claim form is filed under Section 5401, the injury shall be presumed compensable under this division.”)  So, what is the defense basis for disputing causation?

Well, the injury itself was a trip-and-fall, resulting in injury to the neck and face.  But the RFAs were for treatment home care, a Foley catheter, a power wheel chair, and a urological consult.  If defendant is aware of pre-existing medical conditions that might create the need for this additional treatment, conceivably there would be valid grounds for whether the treatment is necessary specifically for the industrial injury.

But, it looks like a more concise explanation would be necessary to defer UR.  Perhaps further discovery would also be necessary prior to litigating the issue – defendants have the resources of a 4050 exam which can be used to cross-examine the treating physicians and even to guide and inform the cross-examination of a PQME on the issue of causation (your humble blogger will go toe-to-toe with anyone on Star Wars trivia, but might need some professional guidance when it comes to whether a neck surgery might cause urinary problems).

Defendants can subpoena prior treatment reports to show the need for these treatments existed prior to the industrial injury – perhaps an applicant’s private insurance records will include a denied request for such treatment predating the DOI?

In any case, dear readers, perhaps UR is a safe route to do as well?  After all, while section 9792.9.1 allows the disputes to be resolved through the WCAB, Dubon II allows no such disturbance from a timely and properly communicated UR report.  It might be worth the vendor fee and IMR bill.

Hello, dear readers!

So here we are – another week gone.  And, after being tricked intro drinking coffee with salt instead of sugar, after having your desk covered in post-it notes, and after being misled into buying workers’ compensation insurance for your pet dog, you’re finally ready for some good news.

Well, leave it to your humble blogger to bring you some!

So, from the looks of it, the California Supreme Court won’t be chiming in on Dubon, and the decision looks like it’s going to stand, at least for now.

As you will recall, Dubon, that en banc WCAB opinion which ultimately held that, unless UR is untimely, it HAS to go to IMR, is not the only case that challenges the absolute exclusivity of the UR-IMR procedure.  The case of Stevens v. WCAB is likewise working its way to the Court of Appeals’ decision desk, with Mr. Stevens seeking to establish that Workers’ Compensation Judges should have jurisdiction over the validity of UR and IMR.

Now, while we in the defense community might all dance in the streets at the idea that, for a bit longer, at least, there’s no adverse decision on the question of the validity of IMR, there’s a bit of frustration everywhere else.

Treating physicians are certainly upset that they can’t get authorization for all the treatment they would like to perform (and bill for).  And, of course, applicant attorneys are upset that they can’t get more and more treatment for their clients, whether for the sake of the treatment itself or just for the ability to drive up costs for defendants as a means of leveraging higher settlement amounts.

Now, as much as your humble blogger is a cold, heartless defense attorney, I can’t help but agree with some of the sentiments of the anti-IMR crowd.  It’s horrible when UR denies home modification on the basis that the UR reviewer would not have authorized a wheelchair in the first place.  It’s horrible when UR denies an MRI for the back because the knee has not been admitted as an injury (that’s not a typo dear readers, and no, I’m not making these ones up).  It’s horrible when UR refuses to authorize Scotch injections for a spiritually and morally crushed but physically health workers’ comp blogger (that one might actually be made up).

But, you know what else is (arguably equally) horrible?  The abuse employers and insurers receive in California’s workers’ compensation system.  Employers are forced to provide sleep number beds.  Employers are forced to provide treatment for non-industrial conditions just to make industrial treatment feasible.  Neither temporary disability nor medical treatment benefits are subject to apportionment.  We’ve seen insurers with just a few days of coverage be stuck with the entirety of a career-spanning CT.

At the moment, it looks like the only two possible scenarios are those in which one of the parties is left very unhappy – either employers are forced to provide treatment of questionable reasonableness and necessity, or employees are deprived of reasonable and necessary treatment on questionable grounds.  The legislature is clearly not content to leave decisions in the hands of the Administrative Law folks, and the Administrative Law folks aren’t happy leaving the decision in the hands where the legislature placed it.

We need another solution, and quick.  Your humble blogger’s ideas have been roundly rejected, including (1) have all jobs done by robots that are specifically programmed not to rebel against humanity; (2) tell all employees to stop getting injured at work; and (3) wrap all employees in thick layers of bubble-wrap prior to sending them out to do the day’s tasks.

Are you guys sure I can do welding in this?

What are your ideas?

Can you believe it, dear readers?  March is slipping away – just the other day I was admiring my beloved Mother’s Thanksgiving turkey and the relative restraint of blood-thirsty shoppers on “Black Friday.”  Now, in the blink of your humble blogger’s eye, here we are in mid-March.

Of course, not all things that greet us as time goes on include warmer weather.  In fact, Senate Bill 563, is just one cloud in what appears to be a veritable storm of anti-Business weather in California’s climate.

Introduced by Senator Richard Pan, SB 563 would force employers and insurers to disclose the financial arrangements around the UR process, specifically, “[e]ach employer, insurer, or other entity that is subject to Section 4610 shall disclose the payment methodology for each person who is involved in the process of reviewing, approving, modifying, delaying, or denying requests by physicians for authorization … for the provision of medical treatment services to injured workers…”

In other words, when employees, physicians, and the public request this information, it has to be made available to them.

The legislation does not provide for a timeline, or penalties for failure to comply, but, presumably, that can be fleshed out during the legislative process or through regulation.

Your humble blogger, however, is not a big fan of SB 563.  Forcing employers and insurers to reveal the arrangements made with their UR vendors is not going to do anyone much good.  What is the relevance of the information to determining necessity of medical treatment?  We used to have UR determinations go to panel QMEs or AMEs, and now, presumably, all disputes are resolved through IMR (at least for now – let’s watch the Courts on that one).

In some cases, the parties have even stipulated to skip IMR and have medical necessary disputes resolved by AME, in clear violation of Labor Code section 4062.2(f).

So, either the medical basis for denying the medical treatment is sound, or it isn’t – whether the physician who wrote the report was paid $10,000 or $10 for the report has no bearing on the medical reasoning.  The remedy is there as well: IMR for now, possibly something else once the Supreme Court weighs in.

What this does, instead, is increase the cost of doing business for the employers.  The cost of compliance in the form of providing information, upon “request” by anyone and everyone.  The cost of negotiating contracts with vendors who will now negotiate from the position of having their rates a subject for public knowledge.

Hopefully, this bill will face the same fate as your humble blogger’s proposed hamster-powered message delivery system (it was a really elaborate plan, actually – we would dress the hamsters up in little suits, and give them little briefcases to deliver messages, and would train them to quickly use a series of tubes to be installed throughout the city), and never be implemented.  Before you legislate, think of the hamsters!

As will every victory for the employers and insurers, little by little, the gains are chipped away.  So too for the ground gained in Dubon, whereby the WCAB held, en banc, that just about every UR dispute, save timeliness, goes to IMR, where a secret ritual is held and, after invoking the spirit of the medical treatment deity “Medi-Nessisitus,” a ruling is ultimately rendered.

So, your humble blogger now brings you the case of Shanley v. Henry Mayo Newhall Memorial Hospital, a panel decision in which the WCAB held that for a UR report to be timely, as discussed in the Bodam case, all time requirements must be complied with, including being communicated in a timely fashion, rather than just a decision being reached.

In Shanley, both UR decisions were reached within five business days, and the decisions were mailed on the same day that the decision was reached to applicant’s counsel, applicant, and the physician who submitted the request for authorization.

However, the WCAB concluded that there was insufficient evidence that defendant had communicated the denial of authorization by telephone within 24 hours of reaching the decision, even though the UR report reflected that a peer-to-peer had been attempted with the treating physician and a message was left.

Citing Labor Code section 4610(g)(3)(A) (“[d]ecisions to approve, modify, delay, or deny requests by physicians for authorization prior to, or concurrent with, the provision of medical treatment services to employees shall be communicated to the requesting physician within 24 hours of the decision … [d]ecisions resulting in modification, delay, or denial of all or part of the requested health care service shall be communicated to physicians initially by telephone or facsimile, and to the physician and employee in writing within 24 hours for concurrent review, or within two business days of the decision for prospective review, as prescribed by the administrative director” and California Code of Regulations section 9792.9(b)(4) (“[d]ecisions 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 WCAB concluded that defendant had failed to establish that the phone call to the treating physician by the UR which appears to have been scheduled as part of a peer-to-peer review, communicated the result of the UR determination.

The panel decision noted that, without an explanation as to the content of the message that was left with the treating physician, there was no basis upon which to conclude that the message communicated the denial of authorization.

The issue of medical necessity was ordered returned to the trial level.

So, dear readers, do you think it’s time for the UR vendors to start preparing a declaration under penalty of perjury that a phone-call or facsimile followed every UR decision?  Or, perhaps, UR physicians should start using the same automated service used by dentists and treating physicians to remind us of our appointments?

Because UR is typically a pretty rushed affair, and timeliness appears to be the prevailing challenge against IMR (other than constitutional grounds), perhaps we’ll see more of this potential weakness exploited by applicants in the near future, and proactive steps should be taken to nip this in the bud.

Your humble blogger had a brilliant idea recently: why not skip the coffee for a few days?  What could possible go wrong?

Well, I came *THIS* close to filing a workers’ comp claim for the resulting withdrawal symptoms (workers’ comp drives me to drink coffee, among other things, you see).  In the words of Master Yoda: “Path to the dark side, comp is.  Comp leads to exhaustion; exhaustion leads to coffee; coffee withdrawal leads to suffering.” (Thanks for the correction, MC)

So, if your humble blogger suffered so greatly from declining coffee for just a few days, how badly would an injured worker have suffered if deprived of serious pain medication upon which he or she relied for any extended period of time?

Consider, if you will, the matter of McCool v. Monterey Bay.  Applicant was in a car accident way back when in 1983, resulting in several back surgeries, and ultimately a 52% award which included future medical care.

Well, lo and behold: a UR decision elected to deny authorization for various pain medications which applicant had been receiving regularly.  Defendant elected to override UR and provide the pain medication anyway, but three months after the UR denial, applicant requested an expedited hearing out of concern that defendant would one day withdraw its good will.

At the hearing, the WCJ found applicant is entitled to future medical treatment, including the pain medication, until there is a documented change in circumstances, even though defendant continued to provide the medication at the time of the hearing.

Well, defendant sought reconsideration, and the WCAB granted.  Initially, the WCAB held that absent a finding that the UR report was untimely, there’s no basis to review the merits of the UR decision, as per the en banc Dubon holding of the WCAB.  Additionally, as applicant was receiving the sought-after medical treatment, there was nothing for the Board to do, as the commissioners and WCJs are not in the business of issuing advisory opinions to become effective in the event of some possibility in the future.

That being said, the WCAB also pointed out that the UR decision was internally inconsistent, both citing the need to slowly taper off pain medication, and then deciding to make applicant go cold turkey.  Well, in the words of Homer Simpson “going cold turkey isn’t as delicious as it sounds.”

The WCAB cautioned that blind reliance on a UR decision that is internally inconsistent could result to a defendant’s referral to the administrative director for investigation and possible penalties.

So, all in all, a happy ending – applicant gets the treatment she needs!  The defendant gets a victory!  You get a blog post!

Here are some thoughts from your humble blogger:

So, for each UR decision, it’s not only important to review the decision for timeliness, but it appears that there is some threshold the WCAB would like to see met, which in this case was internal consistency.  It would be interesting to note if the same burden is placed upon the defense for multiple UR decisions.  For example, if UR denies surgery because of an injured worker’s weight, but the next UR decision denies lap band surgery because the injured worker is not overweight enough – is that internally inconsistent?

Also, it looks like the applicant took three months to file for an expedited hearing on the matter of medical treatment – shouldn’t there be some time limit on challenging a UR decision for any reason, timeliness or otherwise?  After all, don’t circumstances change, opinions become stale, etc?

As far as your humble blogger is concerned, defendant did the right thing in this case – it’s both prudent and, dare I say it, human.  But, often enough, it’s easy to put away a “denied” UR decision and let the applicant worry about the particulars, such as requesting IMR or challenging timeliness.  This panel opinion serves as a cautionary tale for all of us.

So, there you are – triumphantly stroking the recent IMR decision which upheld the UR determination that the injured worker is not entitled to fresh shipments of caviar to help with his industrial paper cut.  What a wonderful feeling – justice is done, the system worked, and now the price on caviar will not sky-rocket out of your price range, such as this scene captured at Occupy Wall Street so many years ago…

Well, the injured worker decided to appeal the IMR decision… to his treating physician.  “But Dr. Beluga, I need the caviar to make the boo boo go away, it’s the only thing that works!”  Well, seeing as how Dr. Beluga is a strong believer in the medicinal properties of caviar, he submits another request for authorization, thinking this one will fall through the cracks.

Are you required to process this request again… and again… and again… until between UR and IMR, it would have been cheaper to authorize the treatment?

Well, probably not.

Labor Code section 4610(g)(6) provides that “[a UR] decision to modify, delay, or deny a treatment recommendation shall remain effective for 12 months from the date of the decision without further action by the employer with regard to any further recommendation by the same physician for the same treatment unless the further recommendation is supported by a documented change in the facts material to the basis of the [UR] decision.”

So, Dr. Beluga can only request caviar injections but once a year, unless his second request for authorization is “supported by a documented change in the facts material to the basis of the [UR] decision.”

Now, here’s an interesting question for all y’all: Form 9785.5, the Request for Authorization form, offers options at the top of the form: “New Request” or “Resubmission – Change in Material Fact.”  What happens when the doctor submits a report with his or her RFA discussing the change in material fact, but fails to check the “resubmission” box?  Can the defense ignore the same requested treatment by the same physician?  Your humble blogger doesn’t know, but if faced with this situation will likely argue for the “Resubmission”

In fact, a recent panel opinion (Martha Reyes v. Target) held just that: a defendant is free to ignore the RFA for the same treatment by the same physician which UR recommended be denied less than 12 months before.  And, when in conjunction with Dubon, carriers can effectively budget one UR and one IMR per treatment request per year.

Have a good weekend, dear readers!

Hello, dear readers!  The weekend has drawn to a close, the sun has risen on a Monday, and so begins the dance of workers’ compensation, once again, for all of us to endure and some of us to survive.

That being said, your humble blogger will remind you that this humble little blog did its part in raising the hue and cry of the theory, oh-so-appealing, to applicants’ attorneys everywhere: a defendant can use the MPN or Utilization Review, but not both.

In the case of Stock v. Camarillo State Hospital, applicant sought reconsideration of the WCJ’s determination that defendant’s UR was admissible.  Why would the applicant think the UR report was inadmissible?  As the WCAB summarized applicant’s argument, “[a]pplicant contended that the UR report was not admissible based upon her assertion that the employer may not contest through UR a request for authorization by a treating physician within the employer’s [MPN].”

While treating applicant’s petition as a petition for removal, the WCAB held that “applicant’s required participation in her employer’s MPN dos not prohibit defendant from referring an MPN physician’s request for authorization of medical treatment to UR and [IMR].”  The WCAB further noted that, as the California Supreme Court held in Sandhagen that UR is mandatory for all requests for treatment.  Applicant’s theory would, effectively, let an employer “opt-out” of UR, by choosing the set up an MPN instead.

Now, if you present this to an applicant’s attorney, you will likely get the response “this is just a panel decision.”  Hogwash – this is an indication of how the commissioners will rule on this issue – 3 of 5 sitting commissioners, in fact.

So, dear readers, go on – UR that MPN Doc’s RFAs without fear!

Your humble blogger previously opined that, despite Labor Code section 4062.2(f), which holds that “[t]he parties may agree to an agreed medical evaluator at any time, except as to issues subject to the independent medical review process established pursuant to Section 4610.5” the parties actually could enforce an agreement to submit medical treatment questions to an AME rather than to UR and IMR.

Well, it looks like the WCAB might take the same stance, as expressed in the panel decision in Bertrand v. County of Orange.  Applicant resolved her claim back in 2004, with a stipulation to submit future medical treatment disputes to the AME.  Well, fast forward roughly ten years, and defendant is claiming that all treatment disputes must go to Utilization Review and Independent Medical Review.

The WCJ held the agreement binding, and the defense sought reconsideration.  Treating the petition as one for removal, the WCAB held that “the new IMR process for reviewing a UR denial of medical treatment may be waived by the parties’ stipulation to bypass statutory review in favor of submitting their disputes to the AME.  The recent change to IMR as the method of review of medical treatment disputes, as provided in Labor Code section 4610.6, does not supersedes the parties’ stipulation…”

Now, it’s pretty hard to square that with the Labor Code: “the parties may agree to an [AME] at any time, except as to issues subject to [IMR]” on one hand, and “the new IMR process for reviewing a UR denial of medical treatment may be waived by the parties’ stipulation to bypass statutory review in favor of submitting their disputes to the AME.”

Let’s take this a step further – if the WCAB is saying that the parties may waive various statutory protections and resolve disputes by agreement, is there any limit on what benefits the parties can waive?

This is an issue that needs some serious, binding authority, but absent a petition for review by the County of Orange, we won’t find it here.

Welcome back from your weekend, dear readers.  As you know, your humble blogger is not only a font of information (and sometimes misinformation), but is also the recipient of may mutterings and whispers in the workers’ compensation world.  Sometimes these whisperings are from loyal and generous readers, sometimes from ghosts of cases well denied (admittedly, after the second glass of Diplomatico rum, it is hard to recall the source).

In any case, word around the proverbial water cooler is that Dubon is coming down soon.  Whether this is wishful thinking of well-informed gossip, your humble blogger cannot say.

But, in the meantime, we must deal with Dubon’s children.  In this particular case, that of Newton v. Jack-in-the-Box, Dubon strikes again!

Newton has to do with an applicant seeking treatment as recommended by her primary treating physician, namely aquatherapy.  Utilization Review had issued a delay notice, signed only by a registered nurse.  Ultimately, the UR denied the treatment and applicant filed a DOR for an expedited hearing, arguing that the UR report was defective.

Initially, the WCJ agreed with applicant, because the UR report had referenced some number of additional pages of medical reports or records reviewed in the case.  On reconsideration, the WCAB disagreed with the WCJ, noting that such a minor violation of Rule 9792.9 constitutes a defect that is “minor, technical, or immaterial.”

And now, dear readers, the story takes a bad turn.  The WCAB found another reason to overturn the UR decision: the delay was signed by a nurse, rather than by a licensed physician, and as we all know, Labor Code section 4610(e) requires any delay of requests for authorization of medical treatment to be made by a licensed physician.

Accordingly, the WCAB issued a notice of intention to issue an order awarding applicant medical treatment (aqua therapy) as originally recommended by the primary treating physician.  Because the WCAB found a reason to overturn the UR decision that had not been raised at trial, the defendant is entitled to present its arguments in response.

Now, your humble blogger is not representing either of the parties in this case, and would not presume to instruct learned counsel in the discharge of its duties.  That being said, your humble blogger would submit that the following arguments should be made:

1. To the extent that the section 4610(e) was violated, is the Utilization Review system really impeached by having an RN sign a delay notice?  After all, the WCAB just noted a clear violation of Rule 9292.9, and brushed it aside as a minor technical violation, before deciding that a short delay in a decision was sufficient to “undermine the integrity of the UR decision.”
2. Even if UR has some defect, isn’t it appropriate to send the matter back down to the WCJ to further develop the record on the issue of medical necessity?  Dubon held that “[i]f a defendant’s UR is found invalid, the issue of medical necessity is not subject to IMR but is to be determined by the WCAB based upon substantial medical evidence, with the employee having the burden of proving the treatment is reasonably required.”  In this case, even if there is a determination that UR is defective, there still needs to be a decision AFTER that, as to whether the injured worker is entitled to the treatment based on substantial medical evidence.

   If you will recall, dear readers, the Dubon opinion itself did not award medical treatment to the injured worker, but instead provided an order to “return the matter to [the WCJ] for further proceedings and a decision on whether the [treatment] is reasonably required.”

3. Finally, even if this panel of commissioners is not inclined to remand the matter back to the WCJ to determine medical necessity, doesn’t the defendant automatically win?  If there is to be no hearing or development of the record on medical necessity, how is the applicant to carry its burden that the treatment is necessary, as expressly required by Dubon?  Whatever the procedural faults of the UR decision, if any, the UR physician’s logic still applies, and can be copy-pasted into any brief on the issue of medical necessity.

Your humble blogger wishes the defense in this case all the luck in the world.

Have a good week, dear readers!