WCDefenseCA

Hello, dear readers!  Your humble blogger brings you news of the DWC conference held in Oakland on Monday and Tuesday.  As a side note, if you haven’t attended this conference, you really should – next year will probably have a few more answers than this year, and it is worth every dollar and every minute you put into it.

There were several interesting speakers, but no reception, so your humble blogger was even more humble as he tried to post on the goings on.

In any case, the following are some highlights from the lectures and speakers.  I’ve avoided naming names because some speakers asked that they not be quoted.

1. Something horrible is coming, but we don’t know what…

The general consensus of the speakers was that they had no idea how SB-863 would play out, and the law leaves countless questions unanswered… which will be answered at trial and on appeal.  In any case, be ready to litigate just about everything!

1. No more PDAs?

Adjusters should be aware that there will be no more PD advances if an offer of regular, modified, or alternative work has been made until there is an award.  So the worker should go from getting TTD to a paycheck, rather than TTD to a paycheck and PD.   (See Labor Code section 4650(b)(2).)  It remains to be seen if merely making an offer is enough.  For example, if the applicant has been terminated for cause, but the employer could accommodate him or her, must advances still be made if an offer has been communicated?

1. “I love new forms!” said no one ever

There is a new form available to request medical treatment.  So adjustors should keep an eye out for incomplete forms, because the incomplete form does NOT trigger the Utilization Review timeline.  However, the claims adjustor or examiner will be require to document his or her attempts to obtain the missing information.  So send an e-mail or fax returning the form marked “incomplete” and ask for the missing info, and then you can take your finger off the UR button.

1. The cat-like MPN now has nine lives

California Labor Code section 4616.3(b) states that an MPN is not made invalid solely by an employer’s failure to post proper notices.  Realistically, even if proper notices were posted, the difficulty and expense in litigating and proving that the notices were posted makes them effectively not posted.  One speaker recommended having employees sign a document acknowledging receipt of notice of the MPN.

1. Never mind about that Valdez thing

Several speakers made the point that the issue before the California Supreme Court in the Valdez matter is now moot – Labor Code section 4605, as amended, allows non-MPN treating physicians to treat injured workers at the workers’ expense.  Furthermore, the report can be used, but cannot be the sole basis for an award.

There’s too much good stuff to go into everything, which is why you should attend next year!  But here’s the biggest thing to take away from the conference – all of the authorities, from attorneys to judges and everyone in between, kept chanting the mantra “I don’t know.”  No one knows how everything is going to work out, and your panel of attorneys is going to find out for you through litigation.

Don’t be scared by this, get excited – this is yet another opportunity to invest some time and effort and aggressively shape the landscape of workers’ comp until the next reform.

The legislators have changed the beat of the QME dance yet again, and now our foot-work must match the tune.  It looks like the boilerplate – “I object; here is a pro-my-side QME I am proposing as an AME;  I’ll file a panel request for a [chiro/ortho] in 16 days from today” will no longer work.

The new emergency regulations to be submitted tomorrow to the Office of Administrative Law, would require an objection letter to do more than just complain – section 30, subsection (b)(1) would require any request for a QME panel to “attach a written objection indicating the identity of the primary treating physician, the date of the primary treating physician’s report that is the subject of the objection, and a description of the medical dispute.”

So, what does that mean?  Applicants will have to put in some leg work in getting a panel, and blanket objections will not do.  Furthermore, it looks like the Valdez case will be considerably less relevant – a new timeline is included in Labor Code section 4062.2… and it doesn’t require the proposal of Agreed Medical Evaluators, just the first possible day to submit a request for a panel:

1. In cases of requests for medical evaluations under Labor Code section 4060, the first working day that is at least 10 days after the date of mailing of a request for an evaluation;
2. In cases of 4061 or 4062 medical disputes, the panel request shall be made “[n]o earlier than … the first working day that is at least 10 days after the date of mailing of an objection”.

So, once the proposed regulations are approved, keep an eye out for applicants’ objection letters – if you’re beaten to the punch and the panel is issued in an inappropriate specialty, perhaps the panel request can be invalidated based on failure to adhere to the regulations.  At the very least, we should see litigation on this issue in the coming months.

It hasn’t been a good week for lien-claimant Alan Moelleken, M.D., on this humble blog of all things workers’ compensation.  In the case of Ricardo Zuniga v. Barrett Business Services, Inc., Dr. Moelleken had just recovered the cost of medical treatment through an award given by the workers’ compensation Judge on the case when the defendant petition the Workers’ Compensation Appeals Board and won a reversal.

Dr. Moelleken filed a lien for almost $9,000, after defendant had paid only $666.80 of the bills on the grounds that there was a valid Medical Provider Network in place and Dr. Moelleken was not in it.

The workers’ compensation Judge had reasoned, to Dr. Moelleken’s unending delight, that, although the defense had entered into evidence copies of letters sent to applicant (notifying him of the MPN) and to lien claimant (objecting to any treatment and putting it on notice that its bills would not be paid), there was no evidence that the letters were received.  Furthermore, the defense failed to put into evidence a value for the services provided other than zero.

The WCAB took a different approach.  With respect to the defendant’s burden of proof in showing that letters were received, the WCAB held that the “letter from defendant to applicant … is prima facie evidence of delivery of required notice to applicant of his rights under the MPN.”

But, the issue of the MPN defense aside, the WCAB went further to note that the lien claimant failed to carry its burden.  The burden of proving all elements of a lien fall on the lien claimant, including that the medical treatment provided was reasonably required to cure or relieve the injured worker from the effects of an industrial injury and that the claimed fee is reasonable.

Perhaps this goes to show that the one remaining tooth after the sad reversal in the Valdez case remains firm and sharp – even if an applicant ventures outside of an MPN, the defense does not have to pay the bills for it.

We have all read the Court of Appeal opinion in the Valdez case.  Applicants can treat where they like and choose a quasi-QME to write admissible reports.  No doubt, applicants’ attorneys will guide their clients towards a balanced and honest physician with the sole aim of making applicant healthy enough to return to work, and not to inflate applicant’s impairment rating.

So, the defense is stuck with the consolation prize of not having to pay for treatment, even though it will be showered with report after report saying that the paper cut sustained at home is industrial and has caused 100% disability.

Enter the Fernando Sarmiento case.  Mr. Sarmiento filed two claims against Payroll Management Group/Blue Chip Recycling.  Applicant treated outside of the defense’s medical provider network, and defendant’s efforts to compel treatment within the MPN were met with stiff judicial resistance.

Taking its case to the Workers’ Compensation Appeals Board, the defense rightly argued that the Valdez en banc case entitled the defense to at least some protection through its MPN.  Mind you, dear readers, that this panel decision pre-dates the Court of Appeal decision by about two weeks.

But the WCAB was of little help to the defense, denying the petition for reconsideration, it treated defendant’s petition as one for removal and denied it as well.  Apparently, the defense had not (yet) proven that it had a properly established and noticed MPN.

But, the WCAB did provide a method by which the defense could prove the validity of its MPN and reap the limited benefits of the MPN and what the Court of Appeal left standing from Valdez.

Reasoning that “a defendant, as a party, is entitled to file a declaration of readiness to proceed to an expedited hearing to determine the employee’s entitlement to medical treatment,” the WCAB held that the defendant must file a declaration of readiness to proceed to expedited hearing, and prove that it has a properly established and noticed MPN.  (See: Breanna Clifton v. Sears Holding Corporation).

Lock and load, dear readers, there is yet another step in the workers’ compensation dance.

Welcome back from the weekend, my dear readers.  It was a good to see you all attend the funeral pyre of California’s MPN, but one can only hope our next meeting will be under happier circumstances.

Today, your humble blogger brings you a different case, William Slagle v. Department of Corrections California Men’s Colony.  Applicant, a 65-year-old dental lab technician instructor, was evaluated by an Agreed Medical Evaluator for various injuries to various body parts, among them his right knee.  The AME found that 80% of the damage sustained by applicant’s knee was caused by his industrial injury, but 20% was caused by non-industrial degenerative changes.

During his deposition, the AME said “the degenerative findings in [applicant’s] knee are related to the fact that he’s 64 years old.  I don’t think it is unremarkable for a 64-year-old person to have some degenerative changes in their knee.”

Applicant’s counsel seized upon this to claim that the award, based on the AME’s opinions, constitutes illegal age-discrimination in violation of Government Code section 11135.  Needless to say, the WCJ was not impressed, and neither was the Workers’ Compensation Appeals Board.  The fact that applicant’s age makes the degeneration of his knees “unremarkable” is not age discrimination.

The Court of Appeal likewise denied applicant’s petition for a writ of review.

But, as a defense attorney, I can’t help but think about the other side of the coin.  Let’s say a 35 year-old applicant sustains the same type of injury and the Agreed Medical Evaluator notices some sort of degeneration on his knee.  The AME then concludes that it is “remarkable” to find that sort of degeneration on a person of that age, so the damage must be industrial.

In the Slagle case, the AME noted that the degeneration found just three months after the date of injury appeared to have been present since before the date of injury.  In the case of a 35 year-old, perhaps it would be appropriate to ask the same question: is it possible that this much degeneration would have occurred only since the date of injury?

A recent panel opinion discussed the issue of waiver in the context of workers’ compensation.  Your gadfly blogger will quickly run through the facts so he can begin yet another angry rant against the workers’ compensation system.  (The case is Israel Granados v. Barrett Business Services).

Applicant saw a number of treating physicians within defendant’s MPN for a variety of alleged injuries, including injury to the hand, arm, wrist, upper extremity, psyche, and in the forms of a sleep disorder and headaches.  So what’s the problem with humpty-dumpty?  He decided the treating physicians weren’t giving him a high enough rating and he elected to go outside the Medical Provider Network.

When the workers’ compensation Judge ruled that the extra-MPN reports were not admissible (see Valdez).  At that point, applicant demanded panels in various specialties, psyche amongst them, citing objections to the MPN treating physician reports.  This was a puzzling development, given that none of the MPN physicians had yet issued an opinion with respect to applicant’s psyche claim.

Defendant went along with the dance, striking one psyche qualified medical evaluator from the panel, requesting the remaining PQME address certain issues.  But, after reviewing the report, objected to the psyche QME as improperly obtained.  The WCJ and the Workers’ Compensation Appeals Board both found that defendant had waived his objection to an improperly requested panel (“we will deny reconsideration because by failing to object to the section 4062 and 4062.2 process until it was complete, the defendant invited any error and waived any objection.”)

The same treatment, however, does not often extend to applicants and their attorneys.  If you are reading this blog post somewhere with privacy, go ahead and raise your hand if you’ve had a Judge allow an applicant to get a second panel because he or she became represented after the first panel QME didn’t award total permanent disability for a paper cut, even after there was an evaluation and report.

This policy of waiver applies more evenly or fairly the higher one goes in the chain of appeal, but on the ground level, far too often there is leniency afforded to applicants and their attorneys that would get a defense attorney sanctioned.

In any case, the defense bar will just have to look at this as a training tool – under these conditions, we are always at our very finest in order to get the job done.

California’s Medical Provider Network is regularly the subject of both applicant attorneys’ and lien claimants’ raids.  But, just as walls well guarded do not fall, the MPN still has some stiffness in it left.

The recent panel opinion of Breanna Clifton v. Sears Holding Corporation shows the Workers’ Compensation Appeals Board’s resistance to applicant’s efforts to overwhelm the defense with burden after burden of proof.

Applicant self-procured treatment outside of defendant’s MPN, claiming she was entitled to temporary disability payments and reimbursement for treatment based on the opinion of this out-of-network chiropractor.

Defendant pointed out that the report was inadmissible and the claim for reimbursement barred in accordance with Valdez.  Applicant responded by claiming that defendant had not proven that the MPN was valid.

Defendant filed for reconsideration following the workers’ compensation judge’s award of everything under the sun to applicant.  In an act of moderation, the WCJ declined to order the executives of Sears Company to personally apologize to applicant in the form of a choreographed dance and song routine for daring to invoke a defense.  (Some day…)

Although the defense did not contest the finding of injury, it did object to the admission of the reports and the reimbursement for treatment expenses.

The panel held that “a defendant may satisfy its burden of proving it has a properly established and noticed MPN by asserting that it has an approved MPN and requesting judicial notice of the inclusion of its MPN in the list of approved MPNs on the [Administrative Director’s] Web site, and by offering unrebutted evidence that it provided the required notices.”

Lien claimants have threatened to demand I prove every element and procedural requirement necessary for a valid MPN – now, the AD’s website is all the proof any attorney needs.

But what do you do when the applicant claims the notices were never provided?  Or, perhaps, after X years with his or her employer, the applicant suddenly doesn’t understand English?  The injury, you see, limited the applicant to his or he native tongue.

This can happen, of course, and the deposition will likely tip you off.  But be prepared with affidavits, witnesses, etc. – perhaps even a note in the employment file that applicant also speaks another language, so that the Medical Provider Network administrator can provide notices in English and the other language as well.

In any case, the MPN is a great wall against bad reports and inflated billing – when applicants and lien claimants try to push it down, don’t be afraid to push back!

Gather around, dear readers, and let your eloquent and intriguing blogger tell you a story.  Once upon a time, in a realm known as California’s workers’ compensation, defendant employers came together to for the mutual benefit of employers and employees alike, creating the medical provider network system to weed out prescription-happy and over-billing medical care providers.

All was well with the world, but at every turn applicant’s attorneys, to the detriment of their clients, and medical providers, to the detriment of their patients, tried to overthrow the MPN system.  The fate of MPNs dangled precariously and uncertainty filled the air when, to the surprise of all, the Workers’ Compensation Appeals Board issued several en banc opinions in the Valdez case, declaring that applicants must limit their treatment to medical provider network physicians, that the reports of non-MPN physicians were inadmissible, and that insurance companies and self-insured employers were not liable for the non-MPN medical bills.  And joyous celebration erupted in the streets!

Then, of course, the world of workers’ compensation came back to its senses and tossed the rule of law out the window.

The case of Michael Thomas v. Safeway Stores, Inc. is making the rounds and creating quiet a bit of chatter on and off the internet.

Michael Thomas sustained an injury to his shoulder and required surgery.  However, applicant’s treating physician wrote a report in which he claimed that the 11 MPN orthopedic surgeons in the San Francisco Bay Area were not qualified to perform the surgery, and that the only man in the world that could possibly save applicant’s shoulder was a surgeon in Washington who had written several articles on the matter and performed the surgeries with some regularity.  One of the treating physician’s more memorable quotes: “If Mr. Thomas was my family member, [the Washington surgeon] is the only one I would even consider treating a case like Mr. Thomas’s.”

I only wonder where the treating physician would send Mr. Thomas if the treating physician himself had to pay for the surgery – it is so easy to be generous with the money of others, after all.

Applicant petitioned for reconsideration of the Workers’ Compensation Judge’s ruling denying the treatment, arguing  that the “reasonable geographic area,” as contemplated by California Code of Regulations section 9780 can be determined on a case-by-case basis, and in this case should include the 812 mile distance to the Washington surgeon’s office.  The WCAB ruled that  the facts in this case compel a finding that a surgeon in Seattle, Washington is in the reasonable geographic area of San Francisco.  Naturally, defendant must pay for flights, accommodations, and whatever fees may come.

Doesn’t this case mean that all you need to beat an MPN is to have a treating physician say none of the locals are qualified?  Hopefully, this will be an isolated lapse in judgment rather than a new policy.

Bowing to the voluminous complains of countless workers’ compensation attorneys, as well as the en banc decision of the Workers’ Compensation Appeals Board in Messele v. Pitco Foods, Inc., the Department of Workers’ Compensation has set out new procedures for panel requests.

Before we play the Ewok celebration dance again, let’s recognize that this is a very limited fix in a very broken system.  The Medical Unit is not about to start following its own regulations or disowning its old unsigned, unofficial memorandum.  In accordance with the Messele opinion, the Medical Unit will only start rejecting pre-mature panel requests.

At least, that is the understanding from the latest DWC Newsline.

From what I can tell, the Medical Unit will continue to:

* Issue panels in a specialty other than that of the primary treating physician (chiropractors and pain specialists for everybody!)

* Issue a second panel to an applicant because he or she now represented (more chiropractors and pain specialists for everybody!)

*[Conceivably] Issue two panels in one case because of two requests (one from the defense, one from the applicant).

In other words, we will have to continue to be vigilant and aggressive, even if that means filing our DoRs in response to the Medical Unit’s errors.

In terms of the new procedures, the Medical Unit will reject premature panel requests.  [Please see my post on Messele, above, for a discussion of proper timing.]  The DWC also suggests including a proof of service with your letter proposing Agreed Medical Evaluators and mentioning, in the proposal letter, the subject of the dispute (for the Medical Unit’s future reference).

As you might recall, the Valdez case, which is presently awaiting a new decision from the en banc Workers’ Compensation Appeals Board, was discussed here and here.

The original Valdez decision held that medical reports from doctors outside of defendant’s Medical Provider Network are inadmissible, and the defendant is not required to pay the bills for these reports.

Recently, the Court of Appeals issued a writ denied opinion for a WCAB decision with a similar holding – non-MPN doctors’ reports are inadmissible.  (Scudder v. Verizon California (2011Cal. Wrk. Comp. P.D. Lexis 138)).

The order denying applicant’s petition for writ of review can be found under the citation 2011 Cal. Wrk. Comp Lexis 126.

Had the Court of Appeal granted the petition for writ of review (and, ideally, affirmed the Scudder WCAB panel opinion) the Valdez case may have very well been moot.

Two of the commissioners on the Scudder panel are on the Valdez en banc panel as well.  Hopefully that is grounds for some optimism as to how the en banc decision in Valdez will ultimately empower or cripple Medical Provider Networks in California Workers’ Compensation practice.

As always, brave readers, when I know more, so will you.