When is Communication not Communication?

by Jeremy P. West (December 7, 2017)

When is Communication not Communication? When it’s Information. Labor Code 4062.3 and Maxham v. CDCR.

Labor Code Section 4062.3 describes the proper means by which parties are to communicate with and provide information to medical legal evaluators. The statute sets forth different rules relating to how both information and communication are to be provided to the evaluator.

LC 4062.3 defines “information” as: “[r]ecords prepared or maintained by the employee’s treating physician or physicians” or “[m]edical and nonmedical records relevant to determination of the medical issue.” However, what constitutes communication is not specifically defined in the statute.

Non-IBR Medical Legal Disputes Increasing Litigation, and The Remedial Steps You Need to Take

by Patrick C. Gorman (December 6, 2017)

The Perfect Lien Defense

You receive an odd looking Petition, titled “Petition for Determination of Non-IBR Medical Legal Dispute” from the friendly neighborhood workers’ compensation chiropractor, on a case you settled in 2014. The Petition is requesting $6,000 for a “consultative report”, and a series of diagnostic studies, plus $600 in penalties, $2,651.25 interest “thereon”, and $1,000.00 in attorney’s fees for 2.5 hours spent drafting the Petition. Also accompanying the petition is a Declaration of Readiness to Proceed.

Like any diligent attorney or claims professional, you check the public search function on the DWC website, and find you are set for a MSC on the Petition and DOR, in 21 days. You look at the Party Participant List, on the same page of the Public Search Tool, and perform a lien search. The Chiropractor has not filed a lien, nor has his attorney filed a lien filing fee. You think to yourself “gottcha!, this chiro did not timely file a lien! He also hasn’t paid a filing fee, or served the appropriate lien declaration! The WCAB has no jurisdiction to hear this case!”

VOCATIONAL CONSULTANTS AND PERMANENT DISABILITY AWARDS

by Theodore G. Schneider, Jr. (December 5, 2017)

There was a time when workers’ compensation claims did not involve vocational consultants.

Vocational rehabilitation benefit was adopted under Governor Ronald Reagan and the vocational consultant was introduced into workers' compensation litigation.

Initially, a vocational consultant expert would coordinate a worker’s transferable skills and interests into a vocational plan for on-the-job training or further education to return the worker to suitable gainful employment.

For almost 20 years, vocational consultant duties were limited to returning workers to suitable gainful employment.

LEGISLATIVE RECAP: Quiet 2017 Session Marks the Calm Before the Storm

by John P. Kamin (December 1, 2017)

The 2017 legislative session may have been a relatively quiet one for Californians seeking workers’ compensation reform, but a closer look at lawmakers’ activity shows that significant changes are likely on the way in the next three years.

Many of our clients have shown an interest in curtailing cumulative trauma (CT) claims, which account for 10% of the claims in the Los Angeles and Long Beach regions according the WCIRB. In August 2017, WCIRB Executive Vice President David Bellusci noted “sharp growth” in CT claims.

Assemblyman Adam Gray (D-Merced) introduced AB 221 in January 2017, which would have made it more difficult for applicants and lien claimants to collect on low-value CT claims. For instance, the bill would have barred employer liability for medical treatment if the applicant could not satisfy one of the following four criteria:
  • The treatment was authorized by the employer.
  • The injury to the body part or body parts for which the treatment was provided has been accepted by the employer.
  • The appeals board, after an evidentiary hearing or stipulation of the parties, finds the injury to the body part or body parts for which the treatment was provided was compensable.
  • The employee has undergone an evaluation by a qualified medical examiner, pursuant to Section 4600, or an agreed medical examiner and the evaluating physician has determined that the claimed occupational disease or cumulative injury was caused, in whole or in part, by the employment.
The bill would have also barred defendant liability for medical liens if the amount of the Compromise and Release was less than $25,000.

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.)

FORE! TAKE CARE WHEN HITTING THE GREENS THIS SUMMER

by John P. Kamin (April 24, 2017)

Millions of American golfers will hit the links this summer, not knowing the dangers that lurk afoot.

The truth is that golf courses are the sites of tens of thousands of injuries a year to visitors and employees alike. Based on various estimates from around the industry, it’s reasonable to expect about 50,000 injuries a year at American golf courses.

Golf courses share some similarities with theme parks – both are massive properties with a healthy mix of visitors and employees who do everything from customer service, maintenance, restaurant services, to wedding receptions.

The thing that separates golf industry employees from their colleagues in other industries is that many love to play the game. And if their day job helps them play more rounds per year, those employees seem to have a stronger-than-average desire to return to work.

Recent Developments in Telemedicine in California Workers Compensation

by Michael P. Burns (March 2, 2017)

The past decade has seen an explosion in online access and improvements in technology. These changes have naturally resulted in changes in medicine. Smartphone applications and videoconferencing are methods by which business, and now medicine, is conducted. California’s workers compensation system is no stranger to these advancements. But what happens when technology is applied to the century-old workers' compensation system? Several recent cases outline the attempt to bring the system into the 21st Century.

The WCAB has addressed the role of treatment via telemedicine. In Oranje v. Crestwood Behavioral Health, 2014 Cal. Wrk. Comp. P.D. LEXIS 602, defendant sought reconsideration of the findings and order holding that applicant was entitled to either face-to-face or "telephonic therapy" with a marriage and family therapist. The WCAB allowed applicant to have telephonic therapy because she had moved to Nevada and the therapist was located in California.

QUICK, EASY, AND FREE DISCOVERY

by Claire E. Carson (March 1, 2017)

Bookmark this page! It contains many useful links for researching your claims.

Do you sometimes find that your claims do not add up? For example, despite claimant being off work TTD, a coworker reports she is playing in a softball game on a local softball league; or, despite claimant being off work TTD for an extended period of time a coworker sees her at a local swap meet moving without difficulty and notices she has pink fingers (which is often indicative of farm workers who pick strawberries) or, despite claimant being off work TTD on a back claim with 9 out of 10 pain level complaints, the lumbar spine MRI and bilateral EMG/NCV testing is normal, etc. etc. etc. As we all unfortunately know, the examples of these apparent discrepancies are endless.

LIEN LEGISLATION RAISES QUESTIONS FOR MANY AT WCAB

by John P. Kamin (February 28, 2017)

The passage of anti-fraud legislation that became effective on Jan. 1, 2017, has caused a bit of turmoil at the Workers’ Compensation Appeals Board as judges, defendants, and lien claimants try to implement the new laws and the Division of Workers’ Compensation refines the rules of the playing field.

Confusion reigned in early January as stakeholders struggled to interpret how exactly Senate Bill 1160 and Assembly Bill 1244 would apply. State lawmakers drafted the bills to target medical providers who have been convicted or charged with criminal fraud in the workers’ compensation, Medi-Cal, and Medicare systems.