The 6-month rule

by Farai M. Alves (November 16, 2017)
This article addresses the infamous 6-month rule, what exactly the rule is, how far it can be taken, and how to stop it from being taken too far. It is not the purpose of this article to delve into whether and to what extent a psyche claim can still be alleged post January 2013.

What exactly is the rule?

According to California Labor Code Section 3208.3(d), “no compensation shall be paid … for a psychiatric injury related to a claim against an employer unless the employee has been employed by that employer for at least six months.”

Pardon me if I am stating the obvious, but I should add that the rule requiring at least 6 months of employment applies to both compensable consequence psyche claims and stand-alone psyche claims.

Gamesmanship With Panel Requests

by Nasir F. Adil (November 15, 2017)

Recent trends in workers’ compensation practice have caused attorneys and claims professionals to adapt. Like how Olympic drug testers are seemingly always one or two steps behind athletes who use performance enhancing drugs, Judges and the WCAB are slow to catch on to slick and trendy moves made by attorneys pushing the envelope. To make sure claims are properly defended, it is absolutely necessary for defendants stay on top of certain tactics to avoid falling prey to the predatory moves of our adversaries.

Requesting a panel is often one of the very first steps an attorney, whether representing an applicant or insurance company, does. Selecting panel specialty is an imperative step that often determines case value. Thus, being aware of tendencies and being the aggressor is important to avoid historically applicant friendly specialties, such as chiropractors.

The Evolution of Liens

by David F. Mahjoubi (October 10, 2017)

When I started working in workers’ compensation I was a hearing representative traveling throughout the State to every Board as a lien claimant. There were far fewer liens in Northern California. It was not uncommon to see just one or two liens associated with a claim. At the same time, in Southern California there were to be a ridiculous number of liens associated with every claim. It seemed the more frivolous the claim (e.g. post term denied with a $5,000 C&R), the more liens there were.

Most sections of SB 899 became effective on April 19, 2004

In an attempt to bring Southern California more in line with Northern California, the legislature has increasingly made it more difficult for suspect liens to be paid. This started with SB 899 in 2004 which repealed the PTP’s presumption. “Reasonable treatment” based on guidelines adopted by the Administrative Director and ACOEM implemented the 24 visit cap rule, Medical Provider Networks and instituted the Lien Filing Fee.

However, SB 899 didn’t go far enough. Providers continued to game the system resulting in more creative treatments such as Positional MRI’s, Compound Medications, “by report (BR)” charges for reports generated in boilerplate analytics; studies and treatment for sexual dysfunction and sleep deprivation. The list goes on.

Close That File: A New Fangled Thomas Finding to the Rescue

by Manuel A. Ruiz (September 28, 2017)

As time passes, we are handling less and less pre-January 1, 2013 injuries. As such, we are going to be encountering more instances where settling a voucher becomes an issue.

Per Labor Code §4658.7, for injuries that occurred on or after January 1, 2013, if an employer does not offer permanent regular, modified or alternative work to an injured worker with permanent disability, the employer is required to issue a $6,000.00 Supplemental Job Displacement Benefit (SJDB) voucher. The voucher cannot be settled for cash. Time and time again, however, cases are settled when there is a good faith dispute as to whether the applicant is entitled to a voucher.

In Beltran v. Structural Steel Fabricators, (2016) 2016 Cal. Wrk. Comp. P.D. LEXIS 366, the applicant filed a cumulative trauma claim. The defendant denied the claim as being post-termination. The parties had submitted a Compromise and Release which included Beltran’s potential entitlement to a SJDB voucher.

Anti-Fraud Legislation Updates – Liens, Attorneys, and Physicians

by Natalie W. Houng (September 7, 2017)

You may have noticed receipt of a large number of “Supplemental Lien and 4903.05(c) Declaration” forms submitted by various lien claimants over the last couple months. Many have wondered the purpose of these lien forms.

Pursuant to Labor Code section 4903.05(c) amended as part of Senate Bill 1160 on January 1, 2017, all lien claimants who filed a lien between January 1, 2013 and December 31, 2016 and paid a filing fee, were required to fill out and file these Supplemental Lien Forms by July 1, 2017.

If a lien claimant did not timely file the requisite Supplemental Lien Form, the DWC has now dismissed the lien by operation of law. To see whether a lien has been dismissed, search EAMS. Under the “DWC Proceeding” heading, the status will state “DISMISSED PURSUANT TO 4903.05(C).”

MLB TEAMS USING DISABLED LIST CHANGE TO AVOID ARM INJURIES

by John P. Kamin (June 20, 2017)

Teams are strategically using an offseason change to Major League Baseball’s disabled list rules to prevent more significant injuries among pitchers. This has implications that the world of workers’ compensation could learn from.

During the 2016-17 offseason, the league opted to reduce the 15-day disabled list to a 10-day disabled list. The league opted not to make any changes to the longer, 60-day disabled list, which is meant for players with more serious, long-term injuries.

Immediately after the change, analysts like MLB.com’s Mike Petriello accurately predicted that teams would use the new 10-day disabled list to try help starting pitchers avoid long-term arm injuries. Avoiding long-term injuries helps ensure that playoff teams will have those important starting pitchers available in the postseason as they attempt to make their championship runs.

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Sure enough, playoff hopefuls like the Los Angeles Dodgers used the 10-day disabled list to help older pitchers skip the occasional start. (For you non-baseball aficionados, skipping a start means avoiding anywhere from 100 to 200 pitches, when one includes warm-up pitches.)