Friday, July 1, 2011, 08:37 AM - Understanding the CA WC systemSometimes we see stuff in workers' comp so bizarre, you just shake your head. They couldn't make this stuff up no matter how hard they try.
Such it is with the 3-cent appeal.
Unhappy with the award of a credit for an overpayment of $13,113.33, self insured Kraft Foods Nabisco, adjusted by Broadspire and represented by Sabrina Tseng of Lewis Brisbois Bisgaard & Smith LLP, claimed an overpayment credit of $13,113.36
That's a 3-cent difference.
Kraft, Broadspire and Lewis Brisbois apparently decided they were not willing to be shorted.
After all, there is a principle. So an appeal was filed.
Just where in the decision making chain such poor judgment prevailed isn't clear.
Apparently no one decided to pull the plug on the effort to recoup the 3-cents. It was an effort that must have cost several dollars in postage and stationery costs. Not to mention hundreds if not thousands of dollars of attorney billable time to file the petition for reconsideration.
We would hope that billing was not the point.
Imagine the face on the California Workers' Compensation Appeals Board commissioners (Deidre Lowe, Ronnie Caplane, and Frank Brass) as they sat down to review the case. Imagine their arching eyes as they realized what they had in hand was a 3-cent dispute.
What followed, in a panel decision, Vadnais Vs. Kraft Foods, was a notice of intention to award sanctions against Kraft Foods, Sabrina Tseng and Lewis Brisbois Bisgaard & Smith LLP, jointly and severally, in the amount of $500.
The WCAB panel seemed interested in who had decided to pursue the appeal, noting that "If the comments we receive enlighten us as to who, specifically, felt compelled to delay these proceedings by filing a frivolous petition for reconsideration over a paltry three cents, and why, we may choose to limit the parties subject to our sanction order".
No wonder lawyers get a bad name.
Wednesday, June 29, 2011, 10:21 PM - Political developmentsA storm is brewing over the State Compensation Insurance Fund's recent correspondence that medical providers will be required to sign a new contract to remain in the SCIF MPN.
Here is the text of a letter from CAAA's current president, Barry Hinden, addressed to Destie Overpeck, Chief Legal Counsel of the California Division of Workers Compensation and to Christine Baker, Director of the California Department of Industrial relations:
"Destie Overpeck, Chief Legal Counsel
Division of Workers' Compensation
Department of Industrial Relations
1515 Clay Street, 17th Floor
Oakland, CA 94612-1402
Dear Ms. Overpeck,
The California Applicants' Attorneys Association has reviewed the State Compensation Insurance Fund MPN General Provisions and Criteria recently sent to all providers in the SCIF MPN (copy attached). We believe that this document constitutes a modification to the SCIF MPN which must be filed with and approved by your Division pursuant to California Administrative Code section 9767.8. If SCIF has not filed a Notice of MPN Plan Modification, we urge the Division to immediately order SCIF to withdraw this material until such time as proper Notice is filed and approval is secured. Alternatively, if this material has been filed with your Division pursuant to section 9767.8, we believe numerous provisions of the Criteria violate California law, and we request that the Division immediately withdraw its approval and require that SCIF amend or delete the improper provisions.
Under CAC section 9767.8(a)(5), an MPN applicant must file with your Division any "change in the policy or procedure used by the MPN ... to conduct 'economic profiling of MPN providers' pursuant to Labor Code section 4616.1." In CAC section 9767.1, "economic profiling" is defined as "any evaluation of a particular physician, provider, medical group, or individual practice association based in whole or in part on the economic costs or utilization of services associated with medical care provided or authorized by the physician, provider, medical group, or individual practice association." Because a number of items in the General Provisions and Criteria deal with the "utilization of services associated with medical care ..." this document falls under the mandate of section 9767.8(a)(5) and must be filed with your Division before adoption and use.
In addition, the DWC should consider issuance of this material as a modification of at least 10% of the providers participating in the MPN, which is also subject to approval pursuant to CAC section 9767.8(a)(1). The cover letter sent out with this material informs physicians that the contract must be returned by June 30, 2011, and that absent return of a signed and notarized contract by that date the physician's membership in the MPN will cease. This means that if even a relatively small number of physicians either refuse to sign this contract or neglect to return the contract in a timely manner, there could be more than a 10% change in the composition of SCIF's MPN effective July 1, 2011 that would trigger the mandate of section 9767.8(a)(1).
In fact, as of July 1, 2011, SCIF will effectively have an entirely new MPN, and not even SCIF now knows who will be members of that MPN whether the new MPN will include sufficient numbers to comply with the access requirements set forth in CAC section 9767.5. Should SCIF's actions result in a change of more than 10% in the membership of the MPN, or should the loss of some physicians result in a violation of the access standards, we believe the failure of SCIF to comply with the notice and approval requirements of CAC section 9767.8, as well as underlying the statutory requirement in Labor Code section 4616(b) that plans for an MPN must be submitted to the Administrative Director "for approval," renders the SCIF MPN invalid effective July 1, 2011.
The failure to withdraw this document will place workers in an impossible situation. As of July 1st and for some undetermined period thereafter, injured workers will have no way to identify which physicians remain in the SCIF MPN. Workers will not be informed whether their treating physician has met the June 30th deadline, or whether other treating physicians or specialists in the MPN have complied with SCIF's requirements. This uncertainty may cause disruptions in treatment, if SCIF now considers the treater a non-MPN physician, will delay the worker's ability to change physicians or select a specialist, and may raise questions regarding the admissibility of reports and evaluations from the now non-MPN physician (see Valdez v. Warehouse Demo Services, WCAB En Banc decision, April 20, 2011).
For the above reasons, we respectfully urge that the Division immediately order SCIF to withdraw the MPN General Provisions and Criteria until such time as a proper Notice of MPN Plan Modification is filed and approved.
Should this material have already been filed with and approved by your Division, we strongly urge that the Division withdraw that approval and immediately notify SCIF of that action. There are numerous provisions in that document that violate California law. For example, Criteria #17 violates numerous mandates of Labor Code section 4610, including the time deadlines and the critical mandate that only a licensed physician may modify, delay, or deny a request for authorization for treatment. Criteria #20 prohibits even the prescribing of compound drugs, which not only violates the mandate of Labor Code section 4600 to provide "medical ... treatment ... that is reasonably required to cure or relieve the injured worker," but also improperly sidesteps the entire utilization review process in violation of section 4610.
Most alarmingly, Criteria #21 limits certain treatment "not withstanding MTUS ...." This provision violates Labor Code section 4616(e), which provides that "all treatment shall be provided in accordance with the medical treatment utilization schedule established pursuant to Section 5307.27 . . . ." In addition, this violates section 4600(b) which states that "notwithstanding any other provision of law, medical treatment that is reasonably required to cure or relieve the injured worker from the effects of his or her injury means treatment that is based upon the guidelines adopted by the administrative director pursuant to Section 5307.27 ...."
Although SCIF has the right to establish contracts governing its MPN, it cannot adopt contractual provisions that restrict the injured worker's right to treatment that is reasonably required to cure or relieve from the effects of the injury. Any provisions in this material that improperly restrict treatment must be deleted or amended to correct this violation, and any approval that may have been given to this document should be immediately withdrawn.
In summary, if the State Compensation Insurance Fund has not filed a Notice of MPN Plan Modification prior to distribution of the MPN General Provisions and Criteria to member physicians, CAAA urges the Division to immediately order SCIF to withdraw this material until such time as proper Notice is filed and approval is secured. Alternatively, if this material has been filed with your Division pursuant to section 9767.8, we request that the Division immediately withdraw its approval and require that SCIF amend or delete the improper materials.
Barry Harris Hinden, President
California Applicants' Attorneys Association
cc: Christine Baker, Acting Director, Department of Industrial Relations
Julie Jenkinson, Executive Vice President, State Compensation Insurance Fund
Bernyce Peplowski, D. O., Medical Director, State Compensation Insurance Fund"
For readers of the blog, a bit of background is in order. In early June SCIF sent a letter to its network docs. The letter notes that to be in SCIF's network doctors must agree not to prescribe compounded medicines.
Doctors must also agree that they will not prescribe opioid medications for more than 60 days without prior approval.
Obviously, SCIF is seeking to exercise control over two increasingly costly and controversial prescribing practices. SCIF has greatly shrunk from its days as the Goliath of the California workers' comp insurance industry.
But its strategy, if implemented, could have a wide impact on who remains in the MPN and how medicine is practiced within the MPN.
CSIMS, representing doctors who practice and evaluate in the comp system, has charged that these restrictions are an "improper restraint on provider's obligations to provide care by defining medical necessity, not on the basis of evidence based guidelines, but rather as a matter of contractual obligation".
Simply stated, can a carrier seek to bar certain types of care if those types of care are not barred by evidence-based guidelines? Can contractual obligations trump the UR process?
Instead of engaging in this substantive issue, CAAA's letter focuses on the mechanics of how SCIF has essentially modified its MPN by a process with procedural defects.
We'll be hearing lots more about this struggle. Meanwhile, I suspect there are a number of doctors who are debating whether they want to enroll.
But perhaps that is the point?
Tuesday, June 28, 2011, 09:42 PM - Political developmentsIn law school they never told us how much down-time there is in the practice of law.
That's particularly true at the California Workers' Comp Appeals Board.
Parties wait for their turn to see the judge. We wait for our opponents to reach their clients to get settlement authority. We wait to talk with busy lien reps.
Sometimes time moves like molasses.
It was on such a day that someone in the room started speculating about what's unfolding at the Wisconsin Supreme Court. Everyone had their opinions.
According to news reports, Supreme Court Justice Ann Walsh Bradley has accused Justice David Prosser of choking her during an argument in her state Capitol office earlier this month. Prosser denied the allegation.
The Wisconsin Judicial Commission is investigating.
Whether the allegations are part of a smear campaign by disgruntled liberals on the Wisconsin court, or whether there's something to the "choke-hold" allegations against Prosser, a conservative justice, aren't clear.
Perhaps the whole "choke-hold" episode will enter the public consciousness like decades-long debates about the veracity of Whitaker Chambers or what really happened at Roswell, N.M. or what Clarence Thomas really said to Anita Hill.
But if this was California, Bradley could certainly attempt to pursue a workers' comp case.
What a sight that would be. A veritable circus of issues, including possible disputes as to who was the initial aggressor and whether even if there was an incident, was there an "Injury".
If you're following the story, here's a piece by Megan McArdle of The Atlantic that delves into the particulars of this most ugly judicial struggle:
http://www.theatlantic.com/politics/arc ... ld/241170/
And you thought lawyers at the WCAB didn't like to gossip about current events?
Monday, June 27, 2011, 10:39 PM - Political developmentsLooks like the various state buildings housing some of the district offices of the California Workers' Compensation Appeals Board (and the San Francisco offices of the statewide WCAB) have been saved again.
Today's announcement of a California budget deal apparently does not include plans to sell state buildings after all.
The on-again sale is now off-again.
Stay tuned. Soon I'll be blogging about the most significant developments in California workers' comp for the first half of 2011.
Sunday, June 26, 2011, 11:22 AM - Political developmentsWe're in one of life's watchful waiting phases.
In the larger world, we're waiting to see if Europe's teetering economies-Greece, Portugal, Spain and Ireland among them- take the world economy off a cliff.
And we're waiting to see what happens on the Potomac, as Congress and the Obama Administration struggle for a consensus on raising the debt ceiling. With the likelihood of substantial cuts in many programs, there's nothing on the horizon to give cheer to the masses of unemployed and underemployed.
In Sacramento we're waiting to see if there will be some sort of deal between Governor Brown and a handful of Republicans to extend some of the taxes that are soon expiring. Without such a deal, the likelihood of initiative wars increases. Brown has spoken of a potential war of "all against all" as interest group coalitions fracture under pressure of the possibility of an all cuts budget.
In Wisconsin, we're watching public employees getting some traction in local elections. But in New Jersey, we've seen this week Democrats teaming up with the GOP to trim public pensions. We're in the watchful waiting phase of how the public pension issue plays out in California.
And we're waiting to see if Texas Governor Rick Perry joins the GOP Presidential fray. If so, with that may come ever increasing comparisons between the Texas economy and the California economy.
Lt. Governor Gavin Newsom, presumably in the electoral mix several years from now, visited Texas several months ago to see what Texas is doing on jobs. Do you think workers' comp came up?
And in California workers' comp, we're in a watchful waiting phase.
Two big cases are awaiting appellate disposition.
In Baker v. WCAB (formerly known as the Duncan case, and before that as the XYZZ case), the court will decide the start date for COLA calculations.
It's an issue that affects few cases, but which could have a significant financial impact on cases where the worker is 70% disabled or more for post 1/1/03 injuries.
In Ogilvie v. WCAB, the California Court of Appeals 1st District will be deciding issues regarding the manner in which the 2005 Permanent Disability Rating Schedule can be rebutted.
Arguments were held in Ogilvie this week. Although I was not present, sources I trust who did attend indicate that the lawyers arguing the case handled oral argument very impressively. From the questions posed by the judges, it was hard to discern how they were leaning on the core issues in the case.
And we're waiting on other things.
A new Administrative Director of the DWC has not been appointed. At
CHSWC there will be a slot for a new executive, as Christine Baker now heads the Department of Industrial Relations.
And there are slots at the WCAB.
Which brings us back to California's budget. The focus of the governor is on the budget. And appointees couldn't be officially confirmed now anyway, since Darrell Steinberg has announced plans to halt confirmation of Brown's appointees after Brown vetoed the budget that legislative Democrats cobbled together.
That, of course, is the non-budget that California Controller John Chiang rejected in refusing to pay legislative salaries.
While you're doing your watchful waiting, here are a few links for your consideration:
"Gandalf: A Great Seer, With Nothing Up His Sleeve":
http://www.calbuzz.com/2011/06/gandalf- ... um=twitter
"The Payroll Tax Needs a Vacation" by Robert H. Frank:
http://www.nytimes.com/2011/06/26/busin ... 6view.html
"Gavin Newsom Treks to Texas to Talk Jobs" by George Skelton:
http://articles.latimes.com/2011/apr/21 ... s-20110421