WCDefenseCA

And it’s Wednesday again, dear readers!  What better way to celebrate the mid-point of the week than a WCAB panel decision on vouchers?

The panel decision is that of Gibson v. Apex Envirotech in which the WCAB denied reconsideration of a WCJ’s award of a SJDB voucher.

Applicant had two claims and sought workers’ compensation benefits. However, according to the WCJ’s Report and Recommendation on Petition for Reconsideration, applicant had been laid off during the pendency of his claim because he had been laid off several years prior to filing his claim.  The DOIs in these cases were from 2016 and the applications were not filed until late 2020 (roughly 4 to 4.5 years post DOI).  Per the WCJ, he had retired.

Apparently, defendant did not make an offer of regular, modified, or alternative work.  The WCJ cited the en banc decision in Dennis v. State of California for the proposition that facts such as retirement are irrelevant to the duty imposed by Labor Code section 4658.7 to provide a voucher or make an offer of regular, modified, or alternative work.

What about Regulation 10133.31?  This provides various exceptions to the duty to provide an offer or a voucher, such as when an employee lost no time from work or returned to the same job for the same employer.

The WCJ in this case opined that it may very well exceed Labor Code section 4658.7 and thus be invalid.  This issue was deferred to the WCAB but was not addressed, as the WCAB only adopted and incorporated the WCJ’s report.  The WCJ opined that “[i]t may be that where applicant sustains no lost time from work, a job offer must still be provided or else a voucher is due.”  But the language in 10133.31(c) appears to address this concern: “[a]n employee who has lost no time from work or has returned to the same job for the same employer, is deemed to have been offered and accepted regular work in accordance with the criteria set forth in Labor Code section 4658.7(b)” (emphasis added).

Is the regulation exceeding the labor code by defining terms such as “offer” or “acceptance?”  Section 4658.7(h) expressly authorizing the administrative director to “adopt regulations for the administration of this section.”  This should, at least, authorize the AD to define the “offer” and “acceptance” procedures, including defining a return to work or no lost time from work as an offer being made and having been accepted.

In any case, as we learned from the Dennis decision, when in doubt, make an offer of regular, modified, or alternative work!

That’s your humble blogger’s take on it, anyways.  What do you think dear readers?

Happy Monday, dear readers!

Your humble blogger has missed you these past few weeks and is so happy to be back, infecting your in-box and polluting your computer screens.  I bring to your attention today a topic so exciting, so thrilling, so prone to make the hair stand on the back of your neck, that I almost thought it appropriate to get a rating on this blog post before publishing it.

It’s not about cool ninja krav maga fighting at the WCAB. It’s not about a worker who claimed an injury after he was bit by a radioactive spider but then was photographed fighting crime while technically on TD. It’s about new EAMS regulations proposed by the WCAB!  Search your souls, dear readers – is that not the most exciting news ever?

Some of the changes are relatively minor – insurance companies will receive UANs much like claims administrators and attorneys.  The proposed regulations codifies electronic or digital signatures as well as scanned handwritten signatures and eliminates section 10205.6 which allowed parties to designate their preferred method of service, which is appropriate as accepting service by e-mail is not optional any more (see 8 CCR section 10625(b)(2).)

You can read the full text here, but the big takeaway for immediate action is that, since there are some insurance companies that are distinct entities from the claims administrators already registered with the EAMS system should do so promptly once the new regulations are approved and implemented.  The way to do so is to contact the Central Registration Unit via e-mail at CRU@dir.ca.gov and providing the insurance company’s name, address, telephone number, and e-mail address. 

So, dear readers, follow your humble blogger as we take yet another step forward into the future and shift from paper to electronic everything!

Your humble blogger has often thought, dear readers, that if he was given unlimited power and control over California’s workers’ compensation system, there are a lot of changes he would make. 

Bow ties would be mandatory, always and forever.  Judges would be powerless to sanction defense attorneys for doing air quotes when addressing the deponent as “doctor” during a deposition.  5710 fees would be limited to comparable rates for defense attorney hourly fees.

Once the drunk-with-power period faded, however, there are some substantive changes that I would like to see made to the way we navigate our beloved swamp of workers’ compensation.  So, introducing as of today, the humble blogger’s wish-list series!

Today’s wish is a reform of MPN mileage rules to reflect the realities of telemedicine.  Pursuant to 8 CCR 9767.5, one of the requirements for MPN validity is to provide at least 3 physicians ready to serve as PTP within 15 miles or 30 minutes of an applicant’s residence or workplace (or only the workplace, depending on which panel decisions you follow) and 60 minutes or 30 miles for occupational health services and specialists.

What does that mean in a world where a growing number of physician visits are conducted over telemedicine?  If applicant challenges the validity of an MPN based on distance requirements, can the defense realistically offer PTP’s exactly zero miles from applicant’s home because the internet connects to applicant’s living room?

Your humble blogger would revise 9767.5 to offer an exception to the distance requirements, which could be inserted as 9767.5(a)(3) as follows:

Any treating physician equipped and willing to treat a covered employee’s injury or injuries via telemedicine will be considered as having satisfied the access standards set out in subsection (a), above.

Easy, no?

I understand, dear readers, that your humble blogger, when taking up the task of a running wish list, would make such a modest proposal… well… one could be seriously underwhelmed.  However, isn’t this perfectly consistent with the aspirations of a man who dreams of unrestricted power to force everyone to wear bow ties?

Hopefully this will be an ongoing series throughout these blog posts, dear readers.  But if you have any proposals, particularly those that would mitigate the destructive and poisonous effect the current workers’ compensation system has on employers, then your humble blogger is like a corn field right before harvest time: all ears.

Happy Monday my beloved readers!

Thank you so much for all the kind applicant attorneys who said “hello” during the CAAA conference in Carlsbad this weekend.  And, for those of you kind enough to share your rotten tomatoes and spoiled onions while I was on stage, I have neither the words nor the means to express my gratitude appropriately to you!  I’ll share some more thoughts on the conference with my beloved readers a bit later in the week, but I would be remiss in my duties if I let a single day longer pass without warning you of the new copy service schedule!

That’s right, dear readers, on June 16 the Office of Administrative Law approved the new regulations on the fee schedule to take effect July 15, 2022.

So, what’s new in the regulations?  Well, lots!

First off, all bills must now include the ADJ number (Sec. 9981 (b)(3)).  There are also a new fee scheme for dates of service occurring on or after July 15, 2022:

Flat rate: $180 -> $230;

Records from EDD: $20.00 -> eliminated as a line item;

Electronic Storage Media: $3.00;

The new schedule also allows charges for contracted services, requested services, and surcharges for late amounts.

The new regulations also give a limit of 25 days from receipt by the claims administrator in which to pay or contest the services.  Unpaid portions of the bills are to be increased by 25%.

When an applicant attorney subpoenas records in order to submit them to IMR, those charges are not recoverable if the records are already in the possession of the injured worker’s representative.   Nor are charges recoverable when a subpoena has been ordered quashed.  There is a maximum of four certificate of no records charges.

Finally, and this one is of particular interest… Section 9985 allows for disputes to be resolved by filing a petition before the WCAB or by filing a petition with superior court pursuant to Labor Code section 132.

So, dear readers, after you have recovered from your Independence Day BBQ and have finished putting out the fires started by all those illegal fire-works, if you get a copy service bill for dates of service on or after July 15, 2022, what are you going to do?

Well, you stack that bill up against the language of the new regulations, and see what you have to pay and what you don’t.  But be careful, as the clock is now ticking on a response with a potential for 25% increase for failure to respond within 25 days!

Straight on till Wednesday, dear readers!

Happy Friday, dear readers!

So what’s going on in the world of workers’ compensation? Well, just before we head off into our weekend, your humble blogger thought it might be wise to inform you that the proposed regulations previously discussed here, are now in effect and have been adopted.

In other words, we are moving more and more to a truly paperless world. A fact that has certain employees of Dunder Mifflin inconsolable.

What do you think, dear readers, will you be receiving your QME reports via e-mail?

On another note, tonight is the start of Passover, so your humble blogger wishes his beloved readers a hearty Hag Sameach. Always eager to inform, I’m going to let you in on a little secret that is not widely known. There is actually an 11th plague that we endure every year, to this day:

Have a great weekend!

Happy Wednesday dear readers!

Your humble blogger has the kindest, smartest, most diligent readership of any blogger out there.  I was corrected by a reader who told me the proper greeting, when addressing a group of people rather than an individual, was not “howdy y’all” but “howdy all y’all.”  No doubt, this is akin to Usted/Ustedes in Spanish, viy/viy in Russian, Atah/Atem in Hebrew, and likely many more languages that I don’t have the pleasure of butchering with my attempts to speak.

Nevertheless, though corrected and humbled, your humble blogger is still here to bring you an updated regarding medical-legal evaluations.  Proposed changes to Rule 36.7 would make permanent electronic service of medical-legal reports (rather than allowing for this as emergency regulations). 

The regulation, as proposed, would allow any of the parties involved to agree to receive a QME report via electronic service by providing an e-mail address.  It further refines the regulation to place the burden of providing an updated e-mail address to the QME or AME on the party. 

The regulation continues to require a proof of service and maintaining of records, just as before.

Your humble blogger, for one, is in favor of this approach.  How many times have we been plagued by opposing counsel, trying to conceal lack of preparation and diligence by claiming that he or she never received a particular QME report.  Now we will have concise proof (not the presumption of delivery that comes with a proof of service) that the report was timely served and delivered.

If you are at all like your humble blogger, your own e-mail inbox is overflowing (about two weeks ago I managed to get down to 17 e-mails before looking away for a moment to have it fill right back up).  Sisyphus would be proud.  So perhaps law firms and insurers/employers should start designating a specific e-mail for receiving med-legal reports and make sure those e-mail addresses are diligently monitored and routed to the right desk?

Further, now that we will be able to conclusively show when a report was transmitted to the parties, the WCAB can be a bit more strict with requiring diligence to get these files moved along to resolution?

One can only hope, dear readers – one can only hope!

Straight on till Friday!

And it’s Wednesday again dear readers!  So glad you could come back!

Here’s a hypothetical for you, dear readers.  You’re ready to settle your case by way of C&R, and you’ve ever reached an agreeable figure.  The applicant is saying “give me the money, and I never want to see you again.”  The defendant is saying “take this money, and I never want to see you again.”  At last, after depositions and med-legals and subpoenaed records and 5-hour trials over whether the UR report denying the $20 aspirin was timely, you’re finally ready to part ways forever and ever and ever.

Now here’s the problem.  At the start of the case, applicant looked like the guy on the right, and by the time you are ready for a C&R, he looks like the guy on the left.  So now you need an Medicare Set-Aside.

But both parties are ready to go and want the money now, and you don’t want the hassle of having CMS review and possibly sink the settlement.  So you do what’s called a “non-submit MSA,” where your vendor makes an overly cautious estimate of future medical and you proceed with the C&R without getting CMS’s sign-off. 

Well, the Federal Gubmn’t would like to have a word with you about that.

On January 10, 2022, CMS issued its “Workers’ Compensation Medicare Set-Aside Arrangement Reference Guide (Please shoot me an e-mail if you would like a copy!)  Section 4.3 specifically addresses such an approach with some scary consequences.  In short, if the MSA was not approved by CMS, CMS will require proof that the entire C&R was exhausted prior to providing benefits.

If there is a med-legal report that rates to 16% PD ($16,095) and future medical care is reasonable estimated at $20,000, and the parties end up settling for $60,000 to resolve all issues, including right to reopen, some disputed TD, AOE/COE on a denied body part, etc., then it looks like CMS would not provide benefits until there is proof that all $60,000 was exhausted, not just the $20,000 reasonably earmarked for future medical care.

“Yes,” you might say, “but what does that have to do with the price of tea in China?”  Well, if you were optimistic about getting those non-submit MSAs into your C&R, you might have cause to deflate a bit.  Applicant attorneys, once they hear about this, will be hesitant to recommend such arrangements to their clients lest they be faced with a mal-practice lawsuit or, even worse… a negative review on Yelp!

And even if you can get past a sleepy applicant attorney, all settlements must be approved by a workers’ compensation Judge, who must assess the settlement for adequacy.  In light of the CMS’s approach to non-submit MSAs, the WCJ might be reluctant to find a C&R adequate.

What can the defense community do in these situations to move files along?  Well, besides the obvious of stipping every case or submitting every MSA to CMS (which no one wants to do, of course), it looks like the only other real approach is to have either the defendant or the MSA vendor agree to pay, adjust, litigate, or defend the non-submit MSA in the event CMS declines to provide benefits. 

Another thing we should all be doing is cursing the name of CMS for ruining all of our fun.  A closed file is a happy file, and CMS’s approach is going to ensure that a lot fewer files get closed.  That makes for a lot more unhappy files, no?

Straight on to Friday, dear readers!