Employees or Contractors? Gig Economy Workers’ Status Headlines Newsom’s First Legislative Session

by John P. Kamin (April 26, 2019)

The first few months of the 2019 legislative session opened with bills that would expand the definition of “employees” to include Uber and Lyft drivers, attempt to nullify utilization review, make nonindustrial apportionment more difficult to obtain, and investigate the large number of Independent Medical Review disputes.

Each and every spring, Californians can count on warmer weather, the return of baseball, and the revival of long-simmering political fights in Sacramento at the start of the legislative session. This year, our lawmakers have not disappointed us, so grab your popcorn because it’s going to be a long legislative session in the state capital.

Assembly Bill 5 will be the bill that will undoubtedly get the most attention because it’s a question that everyone can relate to – should your Uber or Lyft driver, or Postmates delivery person be an employee or an independent contractor? In other words, should the state force these massive “gig economy” businesses to deem their labor force to be “employees,” which would require workers’ compensation coverage and other benefits traditionally afforded to employees?

Settlement Alternatives for Claims Involving Medicare Beneficiaries

by Zane P. Uribarri (March 19, 2019)

What are your options when an Medicare set-aside (MSA) has derailed your settlement discussions or, complicated resolution of a claim with a Medicare beneficiary?

Concerns about protecting Medicare’s interests come into play when settling future medical care in workers’ compensation claims where the applicant is either a current Medicare beneficiary or has a reasonable expectation of becoming a beneficiary within 30 months. Typically, this type of settlement will require a carrier to obtain an MSA, which is then self-administered by the applicant. These MSAs require the applicant to administer their own medical treatment and provide an accounting to CMS.

Once the future medical care in the workers’ compensation claim has settled, Medicare will require the applicant to show they have exhausted their settlement funds before covering any treatment related to industrial body parts- and insurance carriers are not necessarily protected from Medicare seeking reimbursement for covered treatment. But what are the options for settling a claim with an applicant who is also a Medicare beneficiary?

Six Ways to Sunday to Tell if a Lien is Stayed

by John P. Kamin (March 18, 2019)

Keeping track of which lien claims are stayed or subject to special lien proceedings is a full time job, thanks to the plethora of criminal proceedings in California.

Defendants, lien claimants, and even applicant’s attorneys have struggled to keep track of the ever-changing news of criminal cases against workers’ compensation practitioners ever since California lawmakers approved legislation in 2016 and 2017 staying lien claimants linked to criminal indictments and placing liens linked to criminal convictions in “special lien proceedings.”

How many are there? According to the Division of Workers’ Compensation’s (DWC’s) online list of liens “potentially subject to a stay under Labor Code section 4615,” there are 504 various sets of criminal charges listed on that page. Keep in mind that number is somewhat inflated, as that list has plenty of overlap as some lien claimants are allegedly linked to multiple prosecutions.

Of course, this information is also important for cases in chief too because some criminal prosecutions have led to plea deals or convictions that resulted in the revocation of providers’ ability to participate in the California workers’ compensation system as a treating physician or med-legal evaluator. For example, this impacts cases where the now-banned provider was acting as a panel qualified medical evaluator (PQME) – thus requiring the parties to obtain a replacement PQME.

Here are some tips to help keep up on all the news regarding the criminal proceedings that can result in stays, special lien proceedings, and other administrative actions:

First and foremost, check the EAMS public search tool’s “lien page.” The far right column will tell you whether a lien is stayed or subject to special lien proceedings.

Valuations: How to know when to hold ‘em, and know when to fold ‘em

by John P. Kamin (March 12, 2019)

Workers’ compensation claims are a lot like poker, you’ve got to know when to hold ‘em and know when to fold ‘em. If you don’t know when to walk away, you’ll eventually want to run. Accurate valuations and cost-effective risk analyses of cases-in-chief will define the success of any claims department because they will steer you clear through the minefield with as few detonations as possible.

So, where do we start with a proper claim valuation of a case-in-chief? Let’s start with the basics, which we can apply to any claim (new or old). After that, let’s work our way into more detailed valuation analyses.


Body parts
What body parts are we talking about? I am not a doctor, but I do know that comorbidities and contraindications aren’t good things for patients. Identify these at the outset.


by Michael P. Burns (March 11, 2019)

Whether settlement is via stipulated award or compromise and release, one of the most common impediments for defendants is valuing exposure for lifetime medical care.

Applicants will frequently make overvalued settlement demands by valuing medical care for a body part over applicant’s lifetime. If surgery is a possibility, the defendant can expect a grossly overvalued demand. Many are under the impression that industrial body parts always warrant lifetime medical care.

Crystal ball says....telemedicine may be the future!

by Donald R. Barthel (Januar 29, 2019)

Telemedicine (aka telehealth) is nothing new. It dates back to at least 1967 when one of the first telemedicine clinics was founded at Massachusetts General Hospital. Doctors, patients and insurance carriers are increasingly utilizing telemedicine. It is often used to overcome distance barriers and to provide access to medical services that might not be consistently available in distant communities in rural areas. Patients often prefer telemedicine because it affords quick, readily accessible medical attention; providers like it because it limits the need for brick and mortar facilities and decreases the number of no shows and, perhaps most important, inexpensively brings medical attention to home bound patients who would otherwise require an ambulance or other expensive and life disrupting transportation to physicians. Other benefits include keeping patients with infectious diseases away from others (think MRSA) and decreasing the delays in getting medical attention to the patient.

Given that telemedicine has so many positive attributes (not the least of which is cost saving!), many have predicted it is the wave of the future. Will that wave sweep into the workers' compensation? What does our crystal ball say?