WCAB CLARIFIES DEFINITION OF “CATASTROPHIC” FOR SECONDARY PSYCHOLOGICAL PERMANENT DISABILITY

by John P. Kamin (July 17, 2019)

A recent en banc decision from the Workers’ Compensation Appeals Board clarified what types of facts are needed to establish a “catastrophic” injury that allows an applicant to obtain psychological permanent disability emanating from physical trauma.

The WCAB’s en banc decision in Kris Wilson v. State of CA Cal Fire Fund awarded a firefighter additional psychological permanent disability (PD). The decision turned on whether the firefighter was entitled to additional PD due to the psychological component of the claim even though it occurred as a secondary result of his physical injuries.

The disputed issue of psychological PD benefits hinged on a statute amended by Senate Bill 863 which, for dates of injury on or after 1/1/13, bars psychological PD that arises as a consequence of a physical injury. In order for workers to get PD for a psychological injury that resulted from a physical injury, they need to prove that it is “catastrophic” or the result of a “violent act.”

California's Workers' Compensation Alternative Dispute Resolution System Offers Key Advantages

by Michael D. Peabody (June 21, 2019)

When the California Legislature first established a workers' compensation system in 1913, it was designed to mandate insurance to rapidly provide desperately needed medical treatment and wage loss mitigation to injured workers. In return, injured workers would not be able to sue in civil court and receive massive verdicts that could bankrupt businesses or receive punitive damages or "pain and suffering" beyond the scope of the medical findings.

There were three prongs of the Safety Act of 1913, also known as the Boynton Act. First, it provided compensation to injured workers. Secondly, it required employers to purchase insurance and established a state insurance company, known as the State Compensation Insurance Fund, in case employers could not acquire other insurance coverage. Thirdly, it gave the state power to make and enforce safety rules and regulations, to prescribe safety devices to be used by employees, and to require accidents to be reported.

In other words, the original workers' compensation program provided an "alternative dispute resolution" program to address the particular needs of workplace injuries. The Boynton act included specific provisions for total temporary disability, medical benefits, permanent disability, and death benefits. It was an exclusive remedy, with minimal exceptions for cases involving gross negligence and willful misconduct.

Does Great Sub Rosa Need to Be Disclosed Prior to Depos?

by Dana F. Aoudi (June 20, 2019)
Although applicant’s attorneys may be entitled to discover sub rosa video that could poke holes in an applicant’s story, defendants need not provide the films prior to the deposition according to a 1989 panel decision.

Depositions are a very beneficial discovery tool used to dig deeper into the facts of the claim and afford defendants an opportunity to learn the strengths and weaknesses of the opposing side.

Although it is not taking place before a judge or in a courtroom, the deposition is still a legal proceeding, regardless of how informal a deposition may seem. After all, the applicant is still giving their testimony under oath during the deposition.

Telecommuters and the Home as a “Second Workplace”

by Michael P. Burns (June 10, 2019)

The cost of living in California has resulted in many employees choosing to move to remote parts of the state, but retaining their local jobs.

Telecommuting is also a growing trend across the country. According to a 2017 study, 20-25% of the U.S. workforce telecommutes at least part-time. Since 2005, there has been a 115% increase in regular remote work arrangements among employed professionals.

Working from home presents challenges for workers' compensation insurers. When the home becomes a workplace, what injuries are covered on an industrial basis? First, let’s examine the commute. Generally, injuries sustained commuting to and from the workplace are not compensable. But what happens when the home becomes a workplace?

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:

EAMS PUBLIC SEARCH TOOL
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.


THE BASICS

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.

THE MYTHS OF LIFETIME MEDICAL CARE

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?

CATASTROPHIC OR NOT?

by W. Robert Siefkes (January 28, 2019)

Labor Code Section 4660.1(c)(1) and Its Enigmatic Exception

I recently resolved a case involving a health care worker’s exposure to the measles virus during the course of her usual and customary work activities. It caused rather substantial neurological impairments. The neurologic injuries were accepted.

Numerous Panel Qualified Medical Evaluations in various specialties including neurology, internal medicine, psychiatry, and neuro-psychology were obtained throughout the course of this claim, as well as sleep studies.

Global Implications of Non-IBR Medical Legal Disputes: Let’s Cap the Well

by Patrick C. Gorman (January 25, 2019)

We have been seeing a cottage industry in the area of non-IBR medical legal disputes over the past three years. The usual drivers of lien litigation all now purport to be a med-legal service providers, and why not? Upon review of the Non-IBR Medical Legal Dispute statutes (Cal. Lab. Code § 4620, Cal. Lab. Code § 4622, and 8 CCR § 10451.1) why would a lien based vendor want any status other than a med-legal service provider? This issue (who is and who isn’t) has been expectedly contentious, because if the service provider is not performing med-legal services (defined under Cal. Lab. Code § 4620), then they are not entitled to presumptions, penalties, interest, and costs.

The friction arises out of the inquiry of who is not a medical-legal service provider. While there is a clear definition of who is performing medical-legal services in some cases (a PQME requested pursuant to Cal. Lab. Code 4060, for example), there is unfortunately not clear precedent (and even conflicting precedent) of who is not performing medical legal services in a case.

In a recent panel decision (Celiflora Lopez v. Harbor View Farms (2018)), the WCAB found there was no contested claim where the claim was not yet denied, and thus the purported medical-legal service provider was not a qualified provider pursuant to Cal. Lab. Code 4620 (and therefore not entitled to penalties, interest, and costs). But how does this WCAB decision square with prior WCAB guidance that the first set of records requested by counsel for an injured worker are medical legal services regardless of the compensability determination by a carrier (see Ozuna v. Kern County Superintendent of Schools (2016))? Possibly the question of whether the records were used by applicant attorney was focused on, and statutory construction ignored or viewed as ancillary, but the conclusion reached in Ozuna appears to be more than dicta.

Recent Panel Decisions Suggest Dynamex’s Employment Test Doesn’t Apply to Work Comp, Reinforces Borello as Good Law

by John P. Kamin (January 18, 2019)

A couple of recent panel decisions demonstrate that the California Supreme Court’s new independent contractor/employer test in the 2018 Dynamex v. Superior Court decision does not apply to the California workers’ compensation system.

The WCAB issued three panel decisions in late 2018 that declined to rely upon the state Supreme Court’s decision in Dynamex. In the April 2018 Dynamex decision, the court adopted a three-part test known as the “ABC Test” to determine whether a worker is an independent contractor or an employee.

Those of us in the workers’ compensation system feared that this test would cause uncertainty by suddenly replacing the multi-factor test set forth by the 1989 state Supreme Court decision in S.G. Borello & Sons, Inc. v. Dept. of Ind. Relations 19 (1989) 48 Cal.3d 341 [54 Cal.Comp.Cases 80].

However, the most recent panel decisions clarify that Dynamex does not replace the Borello test, because the Dynamex factors only apply to wage orders in wage and hour disputes. The case that features the most detailed statement on this clarification is Perkins v. Don L. Knox, et al (2018 Cal. Wrk. Comp. P.D. LEXIS 490.) In that panel decision, WCAB Chairwoman Katherine Zalewski wrote, “Since the Dynamex court did not overturn the Borello standard for determining an applicant’s employment status with respect to the requirement of providing workers’ compensation benefits, and expressly limited the application of the ABC test to the determination of employment status with regard to wage orders, we conclude that the Borello standard applies here.” Fellow WCAB commissioners Jose Razo and Deidra Lowe concurred with Zalewski’s opinion.

Apportionment in our post SB 899 world – the Saga continues

by Jemma S. Uribarri (January 9, 2019)

Apportionment was revamped with the enactment of SB 899 in 2004. It had long been the case that employers were liable for exacerbations or aggravations of underlying conditions without any benefit of apportionment to the pre-existing condition. These rules were upended with the enactment of LC 4663 and 4664, which required that a physician include an apportionment determination for a report to be considered “complete” with regard to the issue of permanent disability (Cal. Labor Code 4663(c)). This is essential because an employer is only liable for the percentage of the permanent disability that is “directly caused” by the injury arising out of and occurring in the course of employment (Cal. Labor Code 4664(a)).

Since the code sections went into effect on April 19, 2004, a multitude of WCAB panel decisions, en banc decisions & district court of appeal rulings have fleshed out a brave new world of apportionment. This has included cases which address prior awards, genetic predisposition, degenerative conditions, and, most recently, disability which is caused by medical treatment (see B&B BLOG article, “Hikida and the Importance of a Good Doctor”)