Wednesday, January 31, 2007, 10:50 PM - Medical treatment under WCHave an award for medical treatment in a California case? Think you can always continue treating with your current doctor? Think again.
In Sharon Babbitt vs National Market, a January 2006 decision of the California Workers' Comp Appeals Board, the statewide WCAB ruled that workers injured before the April 2004 Schwarzenegger workers' comp reform can be forced into MPN networks. Thus, the law allowing employers and insurers to set up networks of doctors (known as MPNs or "medical provider networks") is being interpreted as retroactive to old injuries.
It should be noted that the Babbitt decision could be appealed to the California Court of Appeals, which may or may not decide to intervene. Thus, the final word on this issue may still be undetermined. For now, however, an employer that adopts an MPN may force the worker to treat with a network doctor.
This would not apply to you if any of the following apply:
- your employer has not adopted an MPN
- your employer did not comply with the MPN notice requirements
- you had predesignated a doctor in a valid fashion before you were hurt
Also, there are temporary exceptions to the transfer under Labor Code 4616(d)(3) in these 4 circumstances:
1. an acute condition requiring prompt medical attention for a limited duration
2. a serious and chronic condition (you may be able to continue care with your old doctor for up to a year if the doctor documents you meet this exception)
3. a terminal illness
4. where surgery has already been authorized
The details on these exceptions are quoted in the Babbitt case, which you can see here:
Again, you should note that legislative amendments or further court decisions could affect all of this (check the disclaimer above).
Tuesday, January 30, 2007, 08:34 AM - Medical treatment under WCI attended the California Applicants' Attorneys conference in San Diego this past weekend... fun city.. interesting conference. Carrie Nevans, the acting director of the California Division of Workers' Compensation, was on a panel discussing medical treatment and utilization review. Her audience was the top applicant-side workers' comp lawyers in California and a smattering of defense attorneys.
Among the points Nevans made:
1. She is unhappy with the WCAB's decision in the Brashear case, a case dealing with procedures for a second spinal surgical opinion. She felt that UR (utilization review) should be done before a claims examiner can invoke the second spinal surgery opinion process.
2. She is unhappy with the WCAB's decision in the Sandhagen II case. Sandhagen allows a layperson (i.e. claims examiner) to push an injured worker into a "protracted litigation process". The DWC position apparently was that UR is required and that only a doctor should delay or deny a treatment request, not a claims examiner who chooses to make a Labor Code 4062 objection to medical treatment.
3.Some employers are now unhappy with the UR/QME process and are pushing for a mandatory independent medical review process.
4. She has a pet peeve with insurance carriers who use utilization review on the doctors they have hand-picked to be in their own MPN (medical provider network). She praised Southern California Edison's hand-picked MPN. She also noted that in some states there is UR only of non-network doctors.
5. Acupuncture is being added to the treatment guidelines. There is a medical guideline committee that will look at chronic pain issues. Nevans noted that the DWC has no plans to develop guidelines from scratch. They just don't have the resources to do that. She noted that the acupuncture guidelines are based on Colorado's guidelines.
6. The revised UR penalty regulations are coming out. Nevans indicated that the penalties have been lessened from the prior draft. According to Nevans, now that the Sandhagen II case makes it clear that an examiner can fight treatment by using a Labor Code 4062 objection to treatment (thus invoking the QME process), it is a "fine line" how stiff to make UR penalties. She does not want to discourage claims examiners from using UR altogether because of fear of penalties.
7. Nevans noted that the DWC is interpreting Labor Code 5814.6 ("Administrative penalties for knowing violation of 5814") in a fashion so that 2 penalties within 5 years against an insurer may trigger Labor Code 5814.6.
These were the highlights of Nevans' remarks at the San Diego CAAA convention.
Sunday, January 28, 2007, 07:08 PM - Political developmentsThe current debate in the California legislature over health care access and health care reform is of great interest to California's injured workers. Many of those injured workers end up losing their group health benefits and cannot get health insurance.
In recent posts we looked at some of the Schwarzenegger proposals. But there are other proposals being floated. Here is a link to an article about Senator Don Perata's plan:
http://www.insidebayarea.com/oaklandtri ... ci_5074498
Senator Perata is raising money which can be spent on promoting his plan. Check out this link:
http://www.capitolweekly.net/news/artic ... le_id=1230
For a whimsical but accurate comparison of the legislative Republicans' position on health care reform with the Schwarzenegger, Nunez, Perata and Kuehl plans; check out this article by Steve Wiegand:
Schwarzenegger has been accused by business interests of "jumping the shark" on health care reform. See The Wall Street Journal piece:
Republican legislators, led by Assembly Republican leader Mike Villines, appear hostile to the various health care reform proposals. See the following:
But as the San Jose Mercury notes, many high tech leaders are supportive of health care reform that might broaden coverage and help control costs:
http://www.mercurynews.com/mld/mercuryn ... 524204.htm
Meanwhile, George Bush, looking for an upbeat issue to divert attention from his Iraq fiasco, proposes tax breaks to help low-income people buy health insurance. See the New York Times description:
http://www.nytimes.com/2007/01/21/washi ... ref=slogin
Stay tuned. Workerscompzone will cover it.
Friday, January 26, 2007, 06:14 PM - Medical treatment under WCMedical treatment issues are a source of tremendous frustration for many California injured workers.
On the upper right-hand links section on this blog, you can click on "articles" to find a number of detailed articles explaining medical treatment in California for work injuries.
These include articles on predesignating a doctor, medical provider networks (MPNs) and utilization review ("UR").
Whether your treating doctor is a doctor you have a chosen or a doctor you see on a company MPN network, you may still face authorization issues to get medical treatment.
Most doctors will not treat California injured workers unless they receive authorization to do so. Sometimes doctors will accept a verbal authorization. Other doctors may have a policy that they will treat only if they receive a written authorization. I recently had a case where the insurance lawyer sent a letter of authorization, but the doctor would not accept it. The doctor's policy was that the authorization had to come from the insurance adjuster since the insurer, not their attorney, would be paying the bills.
California law now allows the insurer to review medical treatment requests by use of a process known as utilization review ("UR"). In other blog posts, I will be exploring the UR process in detail. A key point should be noted, though. The doctor must put treatment requests in writing. Receipt of the treatment request triggers a 5 to 14-day time frame applicable to most treatment requests (emergencies are subject to other regulations).
However, California Labor Code 4600(a) still says that :
"Medical, surgical, chiropractic, acupuncture, and hospital treatment, including nursing, medicines, medical and surgical supplies, crutches and apparatus... that is reasonably required to cure or relieve the injured worker from the effects of his or her injury shall be provided by the employer. In the case of his or her neglect or refusal reasonably to do so, the employer is liable for the reasonable expense incurred by or on behalf of the employee in providing treatment."
Under certain circumstances, then, the insurer might be liable for self-procured treatment.This treatment may be the subject of a "green lien" by a medical provider who seeks reimbursement for medical services. Since there are now statutory caps on chiropractic treatment and since many workers must treat within company doctor MPN networks, we are seeing less self-procured treatment and "treatment on a lien." But it does sometimes still happen. In other posts, I will look at the issue of "self-procured treatment." Workers who are contemplating paying out of their own pocket for treatment should seek the advice of an experienced workers' comp lawyer.
Thursday, January 25, 2007, 08:59 AM - Terms and conceptsIn California workers' comp law, what is a "declaration of readiness"?
This is a state form used by the worker, employer or insurer (or their attorney) to request a court date. The party requesting the court date needs to file this form (known as a DWC 9) at the district office of the Workers' Comp Appeals Board in order to have the California WCAB assign a court date.
The party filing the form must indicate on the form the issues that are to be raised in court. Typically, the form is filed where there is a dispute over temporary disability status, medical treatment, permanent disability and apportionment issues (i.e. causation of disability), and so forth. The "declaration of readiness" may also be filed where there is a dispute over whether an injury or occupational illness is work-related. Some (but not all) of these issues may be handled by filing an alternative form known as a "request for expedited hearing."
The party filing the "Declaration of Readiness" must be ready to proceed to a settlement conference and trial. At the requested court date (which is usually called a "mandatory settlement conference"), the workers' comp judge may "close discovery". The workers' comp judge may or may not exclude evidence that was obtained after the "declaration of readiness" was filed. In short, a "declaration of readiness" is not to be taken lightly. The party filing it is certifying that they are ready to proceed. This means that the party filing the form needs to have all medical reports ready. You cannot assume that you will have time to or be allowed to gather additional evidence or supplemental medical reports later on.
To see the form, you can click here:
If you are an unrepresented worker, you should consider talking to an attorney immediately if the insurer files a declaration of readiness. You may be a critical juncture in your case. If you delay, you may lose the right to develop your case properly.
In the past, some district WCAB offices would assign a judge to pre-screen declarations of readiness that were filed. Sometimes declarations of readiness were rejected and "kicked back" to the party who filed. Currently it does not appear that the WCAB is pre-screening these forms. The form will be sent to the local WCAB calendar clerk, who will send out a computerized notice of a court date.