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?


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”)