Welcome to 2012!

A BRIEF SUMMARY OF NEW LAWS TAKING EFFECT, SOME CASE DECISIONS OF 2011, AND SOME PRACTICE SUGGESTIONS

By Corey A. Ingber
Copyright © 2012 Corey A. Ingber. All Rights Reserved.

New laws that take effect 1-1-12i

  • AB 228 – SCIF MAY INSURE TEMPORARY OUT-OF-STATE EMPLOYEES: Amends the California Insurance Code to authorize the State Compensation Insurance Fund (SCIF) to provide workers’ compensation coverage to a California employer, whose principal place of business is in California, for those California employees, temporarily working outside of California on a specific assignment, provided that SCIF insures the employer’s other employees who work within California.
  • AB 335 – NEW NOTICES TO INJURED WORKERS AND BOOKLET: Requires the Division of Workers’ Compensation Administrative Director (AD) in consultation with the Commission on Health and Safety and Workers’ Compensation (CHSWC) to prescribe reasonable rules and regulations regarding notices to injured workers; requires AD in consultation with CHSWC, to prescribe and make accessible, a booklet written in plain language, about the overall workers’ compensation claims process and it making it available on the department’s Internet Web site. Requires notices to be written in “plain language.”
  • AB 378 – COMPOUND DRUGS/OTHER DRUGS: This bill requires any “compounded drug product” as defined in 16 CCR 1735 to be billed by the pharmacy at the ingredient level, with each ingredient identified by using the applicable National Drug Code (NDC) of the ingredient and quantity thereof, in accordance with regulations adopted by the State Board of Pharmacy. Ingredients with no NDC shall not be separately reimbursable. Establishes set maximum reimbursement for a dangerous drug, dangerous device or other pharmacy goods, dispensed by a physician. This bill also amends existing law by adding pharmacy goods to the list of “medical goods” or services for which it is unlawful for a physician to refer to a person, if there is a financial conflict-of-interest.
  • AB 397: LICENSED CONTRACTORS: Bill requires active contractor, upon renewal, with an exemption for workers’ compensation insurance on file, either to recertify the exemption or provide valid Certificate of Workers’ Compensation Insurance or Certificate of Self-Insurance. Also, permits retroactive license renewal upon showing of proper documentation.
  • AB 585: EXTENSION OF CANCER PRESUMPTION: Extends the cancer presumption for active firefighters and peace officers under Labor Code 3212.1 to firefighters of a fire department serving NASA, provided there is adherence to the training standards under the Health and Safety Code.
  • AB 1168: FEE SCHEDULE FOR VOCATIONAL EXPERTS: Adds Section 5307.7 to the Labor Code, and requires the AD to adopt regulations on or before 1/1/13, establishing a new fee schedule of hourly fees for vocational experts, including vocational evaluations and for testimony.
  • AB 1426: COURT ADMINISTRATOR ABOLISHED: The position of the Court Administrator is eliminated and those former duties are now distributed to the WCAB and to the Administrative Director of the DWC. (This bill actually took effect by urgency in 2011). This bill amends Labor Code 5307 to exclude all references to the Court Administrator. But, all existing regulations of the Court Administrator remain, unless and until they are amended or repealed either by the WCAB or the AD.
  • SB 459: MISCLASSIFICATION OF EMPLOYEES AS INDEPENDENT CONTRACTORS: Adds Section 226.8 to the Labor Code making it unlawful to misclassify an individual as an independent contractor; imposes civil penalties for violations.
  • SB 826: DWC CAN ASSESS ADMINISTRATIVE PENALTY FOR VIOLATION OF DATA REPORTING REQUIREMENTS: This bill would require the DWC to impose administrative penalties, based upon a schedule, of no more than $5,000 against a Claims Administrator, in any single year, for a violation of the data reporting requirements. Also, requires the AD to publish an annual report, disclosing compliance rates of Claims Administrators.

Mileage Remains The Same

  • Mileage for 1/1/12: Effective 7/1/11 the mileage rate is $.555 (55.5 cents) per mile, regardless of the date of injury and there is no change.
  • According to the DWC Newsline No. 59-11, 12/16/11. ii
  • No change for mileage rate for medical and medical-legal travel expenses in 2012
  • The current mileage rate of 55.5¢ for medical and medical-legal travel expenses will remain unchanged in 2012. This rate must be paid for travel on or after Jan. 1, 2012 regardless of the date of injury.
  • Labor Code section 4600, in conjunction with Government Code section 19820 and the Department of Personnel Administration regulations, establishes the rate payable for mileage reimbursement for medical and medical-legal expenses and ties it to the Internal Revenue Service (IRS) published mileage reimbursement rate.
  • The latest announcement marks the first time since 2007 that claims administrators will not need to apply a new rate for travel on or after January 1. The mileage reimbursement form is posted on the Division of Workers’ Compensation Web site.

What about the COLAS?

COLA ADJUSTMENTS:

TTD: [Labor Code 4453(a)(10)]: For injuries on 1/1/07, and each January thereafter, COLA adjustment for 1/1/12 increased by 1.0241351% (2.4%) based upon the reported increase in the SAWW from to $979.90 to $1003.55. Therefore, the new maximum TD rate is $1,010.50 per week.

LIFE PENSION AND PTD: [Lab Code 4659(c)]: COLA APPLIES for injuries on or after 1/1/03, as life pension payments are increased annually effective 1/1/04 and each January thereafter. NOTE: The California Supreme Court Issued its decision on the “Duncan issue” in Baker v. WCAB (X.S.) 8/11/11 and has therefore clarified that the COLA provisions apply prospectively from the January 1st following the year in which the worker first becomes entitled to receive a life pension or total permanent disability indemnity, i.e., when the payments actually commence. Here, the high court rejected the previous “Duncan” holding in which potential retroactive COLA adjustments could apply to post 1/1/03 injuries so that in effect, someone with an injury in 2010, who became eligible for a life pension in 2015, could go back to 1/1/04 and have retroactive “COLA” adjustments made to date. Therefore, for 100% permanent disability cases, the COLA’s take effect on the January 1st following the date the injured worker reaches MMI/P & S status. As to life pensions from 70:0 to 99:0, the COLA’s take effect on the January 1st, following the date on which the partial permanent disability becomes exhausted and the life pension payments commence.

WCAB EN BANC DECISTIONS OF 2011

[En banc decisions are binding on all WCAB three member panels and upon all WCAB offices and are therefore citable authority until reversed by the WCAB or by an appellate court]

CASE  DECISION
MESSELLE v. PITCO FOODS
11/22/11, 11/4/11 and 9/26/11
FIVE ADDITIONAL DAYS FOR PQME INITIATION REQUEST IF SERVED BY MAIL: Process for initiating PQME requests under Labor Code 4062.2 requires the requesting party to propose in writing, an AME and then absent an agreement, within 10 days of first written proposal, that party may then request a PQME. This decision extends the 10 day period by additional 5 days if the request was made to a party in California and was made by any method other than by personal service. (CCP 1013). NOTE: This decision applies to all requests made on or after 9/26/11. For panel requests made prior to that date, where a panel was prematurely requested, the decision is retroactive, only if the objecting party based their objection on this narrow ground. Otherwise, the decision applies prospectively from 9/26/11.
VALDEZ v. WAREHOUSE DEMO SERVICES
9/27/11, 7/14/11 and 4/20/11
REPORTS FROM NON-MPN DOCTOR ARE INADMISSIBLE ON ALL ISSUES: By far the most important and compelling decision of 2011, the WCAB declared that once it is established that the defendant has a validly established and properly noticed MPN, then medical reports written by out-of-net work physicians are inadmissible and may not be relied upon to support any WCAB award. The WCAB has declared that where unauthorized medical treatment is obtained outside a validly established and properly noticed MPN, medical reports from the non-MPN doctors are inadmissible and that the defendant is also not responsible for the cost of the non-MPN reports. Based upon principles set forth in Tenant/Centinela Hospital Medical Center v. WCAB (Rushing) 65 CCC 477), the WCAB determined that if the applicant goes outside of the validly established and properly noticed MPN, the out-of-network physician is not the PTP and this improper selection does not otherwise change the status of any prior in-network PTP.
GUITRON v. SCIF
3/17/11
INTERPRETERS MAY BE PAID FOR SERVICES DURING TREATMENT: Acknowledging the absence of a statutory basis for permitting interpreting services as an element of providing medical treatment, the WCAB has drawn a comparison to “transportation costs” which while also not part of the statutory scheme, have nonetheless been deemed adjunctive to treatment. Therefore, drawing an analogy to the justification supporting transportation expenses as a reasonable element of medical treatment, the WCAB has now held that interpreting services are an essential adjunctive to the provision of medical treatment, under Labor Code 4600.
However, the WCAB has further held that a lien claimant has the burden of proving that the interpreting services in question were reasonably required and that the interpreter was actually present on the date of the treatment visit and that the interpretive services were actually rendered at that time.

Some other notable decisions

CITY AND COUNTY OF SAN FRANCISCO v. WCAB (OGILVIE III): On 7/31/11, the First District Court of Appeal held that there are now three ways to “rebut” the PDRS. (From our Client Bulletin): [note, The Supreme Court declined review of this decision so this case law stands, for now]

  • Method One: Presentation of evidence of a factual error in the application of the PDRS, a forumula or a component thereof of an error in the calcuation or application of the formula for the PD rating;
  • Method Two: Presentation of evidence that the employee’s diminished future earning capacity is greater than the DFEC adjustment factor in the 2005 PDRS.
  • Method Three: “In certain rare cases iii” the scheduled DFEC component may be rebutted by showing that by the nature or severity of the claimant’s injury, the DFEC is not captured within the data used by RAND with their sampling of disabled workers.  Therefore, the schedule can be rebutted by showing the extent to which the injured worker’s actual PD has been aggravated by complications not considered within the RAND data sampling and therefore not provided for within the 2005 PDRS.iv  Note: this may portend the return of the “vocational expert” which we are already seeing in some cases. 

CITY AND COUNTY OF SAN FRANCISCO v. WCAB: [(2011) 76 CCC 1088]: The 2 year TD Cap under Lab C 4656(c)(1), did not run from the payment of one day of wage loss to attend a PQME examination. This is a writ denied case, which is citable but not in the strength of a published opinion.

CONSTANZA v. HOLIDAY INN: [ADJ 389222/1530924]. Post Termination defense and CT Claims: This comes up often. You receive a new claim from an employee, who was terminated and they go out and file a claim of cumulative trauma after the date upon which they are terminated. Weren’t Labor Code Sections 3600(a)(10) and 3208.3(e) (psyche) supposed to have prevented this? The short answer, at least for CT claims, is not really. Here, the applicant was terminated from his job as a waiter. Two years before, he had a specific injury to his lower back and received care at Kaiser, but did not file a claim.  He filed a CT claim only after he was terminated.  The WCAB found there were  actually two exceptions to the post-termination defense; the first was the specific injury reflecting medical treatment existing prior to notice of termination and the other was the fact that the CT was filed after termination.  Here, once again we go back to the definition of a CT claim (Lab C 5412) which is the date upon which there is concurrent knowledge that the disability is work related.  Here, the concurrence of knowledge did not occur until after the notice of termination, so the CT exception was also applicable.  This was a writ denied case as reported in Work Comp Central.v

PRACTICE SUGGESTIONS FOR THE NEW YEAR

  • NON-MPN TREATMENT AND VALDEZ:
  1. In light of Valdez, we strongly recommend that you secure copies of employer required MPN notices, the Labor Code 3550 notice poster, photographs at time of injury and designation of employer witness as to MPN issues, at the onset of your cases.  Assure your attorneys are also provided with the employer notices; photographs, name of employer MPN witness and authorization contacts.  Include a copy of all notices with all lien objections when the provider is not an MPN physician or the provider was a referral from a non-MPN physician.
  2. Manage your medical costs further through prompt and timely UR. Also, be alert that some treatment decisions such as the treatment is “out of network”  or “parts of body disputed” are legal defenses and are therefore not UR based, so be on alert for RFA’s which may raise both UR and non-UR issues.
  • CHRONIC PAIN:  IS THIS THE NEXT “WAVE” FROM TREATING PHYSICIANS?: The Chronic  Pain Medical Treatment Guidelines, under 8 CCR 9792.20-9792.26, went into effect 7/18/09 and consist of 127 pages of protocols and guides, which are part of the Medical Treatment Utilization Schedule under Lab C 5307.27 and hence are presumptively correct. Here is the link:  http://www.dir.ca.gov/dwc/DWCPropRegs/MTUS_Regulations/MTUS_ChronicPainMedicalTreatmentGuidelines.pdf    A common problem in extended treatment cases often involves the  unlimited and ongoing use of opioids (e.g. Hydrododone, Norco, Oxycodone, Oxycontin, Vicodin, etc.) for the treatment of a condition, for which there is no specific treatment plan addressing the protocols  for chronic pain.  Many doctors don’t even bother with a functional assessment which is the general “baseline” for assessing whether opoid use has resulted in some return to function.  Instead, some doctors will simply ignore the protocols and simply see the patient every 30 days and provide yet another prescription for an opioid or possibly a “pain cocktail.

This is a major problem which should be addressed with the PTP either through a 9785(f)(7) “request for information” letter demanded a reply, as well as through UR.  Also, it is my opinion that failing to consider these Guidelines, may raise issues beyond UR and may permit objections to medical care outside the scope of UR. [on the basis that the report is non-compliant and is therefore not substantive evidence]  Be sure to hold the treating physicians accountable to follow these guidelines. Don’t be afraid to notice the deposition of a recalcitrant PTP.

  • REVIEWING A PQME REPORT:  Whether obtained under Lab C 4061.1 or Lab C 4062.2, the PQME reports are critical to the case.  When you receive a report, a first good “rule of thumb” is to immediately check the report to determine whether the physician actually received and then reviewed all of the forwarded exhibits and documents, including non-medical records, if applicable, which were transmitted to the physician, prior to the examination.  A practical problem is that some doctors will examine the applicant before they get around to reviewing records, so that the history as told by the applicant might go unchallenged, if the QME is unfamiliar with the prior records.  Another potential problem is when the QME simply “appends” the records to his/her report without making a single comment about those records or the summary contains information which is inconsistent with the histories but the doctor doesn’t reference this anywhere in the report)!  Next, you should check on apportionment. If the doctor did not “address apportionment to causation” then you can bet the report is probably flawed and it might not even constitute substantial medical evidence.  [Remember, a “late report” must be objected to before it is received or you waive the lateness –per 8 CCR 38] vi You should also carefully review the impairment discussion and determine whether the doctor is following the AMA Guides. Quite often, a PQME will write an essentially “fair” report overall but with flaws and errors, which can be used in a litigated case, to possibly negotiate a favorable resolution.
  • APPORTIONMENT AND CAUSATION:  The failure to “address” apportionment, under Lab C 4663 and Escobedo rather than failing to find apportionment is the recurrent problem.  Unfortunately, many physicians still view apportionment through the “old” law of pre -SB 899 and will not find “factors of apportionment” unless they believe there was actual disability before the injury.  A “canned” sentence or two, setting forth apportionment is probably not sufficient here.  Every doctor should list “all factors” which caused the impairment, not simply the ones they believe stem from the industrial injury.  Also, some doctors confuse “factors” of apportionment with actual causation of an injury, which often occurs in a psyche case.
  • 15% BUMP “UP AND DOWN”: As reported earlier in our Client Alert (10/11), the case law is still unsettled as to from what date does the 60 days to provide the offer to return to work run?  Does it run from the actual time the applicant was permanent and stationary?  As discussed previously in our Client Alert, a strict reading of the regulations, would lead to absurd results, especially when an AME or PQME finds the applicant was MMI/permanent and stationary months or even years before the evaluation, so that it would be functional impossibility to comply with the statute and regulations in a timely fashion as literally written.  As we have recommended previously, we take the position that the 60 days should run from the time the report was received and not upon the actual date the applicant was otherwise found permanent and stationary.  (One panel decision, Ornelez v. Albertertson’s Inc., supports this view –plus 5 days for mailing). 

We hope that 2012 is a healthy and happy year for you and your family.

Thanks

Corey



i California Legislative Information; Cal Chamber and CWCI

ii http://www.dir.ca.gov/dwc/dwc_newslines/2011/Newsline_59-11.html

iii Page 13 of the decision

iv Ibid page 13

v Work Comp Central posted 11/11/2011

vi The remedy for objecting prior to receiving a late report is to obtain a replacement panel under 31.5

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