Sunday, July 8, 2012, 08:29 PM - QME processAn employer or an injured worker is entitled to an advocate who will represent their point of view in proceedings at the California Workers' Compensation Appeals Board.
But what are the limits to such advocacy, particularly where the parties are using a panel QME to resolve issues?
A 2010 2-1 panel decision, Ferniza v. Rent A Center, caused some consternation in the workers' comp legal community when it appeared to construe advocacy letters from attorneys to the QME as being "information" within the meaning of Labor Code 4062.3(b). Furthermore, the majority opinion in Ferniza held that "We also construe "medical and non-medical records" to encompass letters from attorneys that discuss medical and non-medical information, particularly where the letter engages in advocacy".
Under the Ferniza panel's approach, unembellished letters transmitting neutral information would be only "communications" and not "information", but advocacy type letters would be "information", requiring that the proponent of the letter serve it on the opponent 20 days before it was provided to the panel QME. This would trigger a right of the opposing party to object to the advocacy letter, which could then not be sent absent approval by the WCAB.
The Ferniza panel was composed of former WCAB Commissioner James Cuneo and Deputy Commissioner Neil Sullivan. Dissenting was Commissioner Deidra Lowe.
Although hardly cited in any subsequent WCAB panel decisions, Ferniza remains worrisome for both employers and injured workers.
Employers may wish to have their attorneys point out inconsistencies in the factual record, entries in the medical records as well as the context of the claim. Such matters can bear on the worker's credibility and may be very important in determining issues such as injury AOE/COE, apportionment. and overlap.
Lawyers for workers may wish to point out matters that will have bearing on
the effect the injury has had on the worker. Many workers comp cases involve issues regarding compensable consequences of injuries . Where there are issues such as diminished future earning capacity under the Ogilvie case, Almaraz Guzman issues, allegations that a workers is total disabled under LeBoeuf and/or Labor Code 4662, Subsequent Injuries Fund issues, to name a few, the worker's attorney may have a number of points to advocate.
Both sides may feel the need to educate the panel QME on intricacies of workers' compensation law. A long line of WCAB cases has noted that medical opinion that assumes incorrect legal theories does not meet the substantial evidence standard.
To some extent the Ferniza case may have been an overreaction by a WCAB panel to some inflammatory statements in an advocacy cover letter to the panel QME from the defense counsel in Ferniza.
Moreover, Ferniza may reflect the worldview of some stakeholders who wish for a streamline process where worker sees a doc-in-the box QME, report is written and a simple result is rendered. I call that the "Horn and Hardart" workers comp model where the workers' benefits are essentially delivered through an automat-type system.
But the deeper problem may be that Rule 35, cited extensively in Ferniza, is overbroad and inconsistent with the QME statute Labor Code 4662.3.
If so, it would not be the first time that the WCAB has rejected a rule.
Rule 30 was rejected by the WCAB several years ago in a case, Mendoza v. Huntington Hospital.
In prepping for a recent Summer 2012 CAAA convention panel presentation that I did with attorneys Art Johnson and Joanne Helvig, I noted at least 5 ways that Rule 35 was inconsistent with Labor Code 4062.3:
1. Rule 35(a)(3) expands the term "information" used in 4062.3(a) to include
an issues letter addressed to the QME evaluator. Labor Code 4062.3(a) makes no reference to issues letter to evaluators. Indeed, that is covered under a separate subsection, Labor Code 4062.3(e).
2. Rule 35(c) seems to incorporate the expanded definition of "information"
under 35(a)(3) as an item that needs to be served on the opponent 20 days before it is provided to the evaluator
3. 35(d) incorporates the expanded definition of 'information" under 35(a)(3). Under 4062.3 and allows the opposing party 10 days to object to the "information" (defined as including the issues letter) being provided to the evaluator. Contrast this with 4062.3 which provides for a 10 day objection period for consideration of "non-medical records".
4. Whereas 4062.3(f) provides a remedy for ex parte communication violations of 4062.3(e), Rule 35(k) provides a remedy for violations of 4062.3, not just 4062.3(e).
5. Rule 35 specifies items that are not to be sent to the panel QME; Labor Code 4062.3 does not specify those items.
In coming cases the WCAB will undoubtedly be forced to revisit these issues that it addressed in Ferniza.
It would be most unfortunate if the WCAB handicaps the ability of lawyers for employers and workers to advocate for their clients. Forcing attorneys to go the board over disputes about cover letters will greatly burden an already clogged WCAB.
In dealing with these issues, the WCAB needs to look carefully at the requirements of 4062.3. To import Rule 35 into the analysis brings a host of problems into the mix, as Rule 35 does not track the statute.
Wednesday, July 4, 2012, 09:06 PM - Political developmentsFireworks are a'poppin.
Maybe a few are celebrating discovery of the Higgs boson particle.
Bust most are folks celebrating their concept of freedom.
According to a recent NBC News/Wall Street Journal Poll, 61% of Americans feel the country is on the wrong track. But that's not going to stop them from celebrating America's independence. We're an optimistic people.
Attendees at the CAAA summer convention in San Francisco that wrapped up a few days ago saw no fireworks.
But there was a fair dose of optimism about the future.
Rosa Moran spoke about success in eliminating backlogs in the QME system. Efforts to schedule intensive WCAB lien calendars later this year are
under consideration. Moran referenced meetings about revision of the PD schedule but gave no indication as to the status of that effort.
Both Moran and Christine Baker noted that additional judges had been hired and that the department had filled positions, though budget cuts will place some constraints on the DWC that the department will have to work
The WCAB was well represented, with Chairperson Ronnie Caplane being joined by new Commissioner Marguerite Sweeney as well as by Commissioner Deidra Lowe and Commissioner Alfonso Moresi. The WCAB still has two vacancies awaiting appointment by the Governor, and no one was able to predict with confidence when those will be filled.
But the collegiality of the current board and the extensive practical experience in the comp system of its members stands out to this observer.
Moreover, strong, competent women are clearly in the forefront in setting policy both at the administrative and judicial level in California workers' comp.
Interestingly, there was no mention of a possible comprehensive workers' comp reform scheme which may surface later this summer. And there were no questions from the audience addressed to Ms. Moran or Ms. Baker about
whether the DWC is aware of the status of those negotiations, has a position on them or indeed has helped staff development and drafting of those
The DWC listening tour is over. The legislature will be on July recess.
Will it be a quiet August, or will the fireworks appear then?
Stay tuned. In a coming post I'll be taking a close look at the QME process, particularly Rule 35 and its relation to Labor Code 4062.3. That's at the heart of an issue over what are the rules for attorney advocacy letters to doctors, an unsettled legal issue following a much criticized 2010 decision known as Ferniza v. Rent A Center.
Saturday, June 30, 2012, 10:55 AM - Medical treatment under WCAssuming that Obamacare isn't grievously wounded by Congressional de-funding and that a Romney win in the election doesn't result in repeal of the law, what effect will it have on workers' comp?
I've already received several client e -mails asking whether the Affordable Healthcare Act will have any affect on their cases.
For most California workers' comp cases that are in process, the answer is no. Injured workers now in the system probably won't see effects unless they remain in the comp system for years.
Longer term, Obamacare will probably have significant effects, but the degree of this is currently speculative.
For example, it's unclear what effect Obamacare will have on utilization of the comp system. Will some workers who did not have group health insurance or individual policies now have coverage and forgo claims that their conditions are industrial? That's a known unknown.
How will access to care be affected? That's also hard to gauge. If millions of people who lacked insurance coverage now gain coverage, who will treat those who are newly insured? Hospital ER doctors may no longer see waves of uninsured patients, but where will the doctors be recruited to the masses of the newly insured? Some of those may come from the comp system, particularly from the sort of primary care clinics that often now are front-line occupational clinic treaters. But again, this is just speculation.
California currently uses its own fee schedule to compensate treating doctors in workers' comp, but for years there has been talk of moving to an alternative payment system based on Medicare reimbursement methods.
Many of the specialized care doctors in California have resisted this move which would lower their pay but boost pay for primary care providers.
Schwarzenegger's Administration never got around to dealing with this and it's unclear what Jerry Brown's DWC intends to do on this issue.
Obamacare will make further adjustments to Medicare reimbursement rates. But California's workers' comp system may or may not transition from its unique reimbursement system to a Medicare based formula, so again the effects of the Affordable Healthcare Act aren't clear.
Longer term, Obamacare may have affects through emphasis on wellness
programs, research on effective treatments, efforts to increase use of electronic medical records, use of generic medications and other initiatives to increase medical efficiency.
Harder to know is whether workers' comp medical costs can be held down somewhat if more workers have their co-morbid conditions addressed.
For example, workers with underlying diabetes and obesity tend to have more complications in their medical treatment. Under California case law, workers' comp insurers can be held liable for treating the underlying medical conditions if that is necessary in order for the industrially related condition to be treated. Studies have shown that workers with co-morbid conditions tend to have longer recovery times and more complications in treatment. Bottom line: it's more expensive.
Again, this is one of the known unknowns. If the longer trend is to a healthier populace which has access to healthcare, perhaps there will be
long term comp cost savings from Obamacare. But not all American healthcare trends are treatment access driven; diet, lifestyle and demographic trends play a role as well.
Another significant impact of the Affordable Healthcare Act may be in the realm of workers' comp settlements. Currently, many injured workers are reluctant to settle their cases and give up the right to claim future medical care at the comp carrier's expense. This results in cases being carried on insurer books for decades, tieing up reserves.
If health insurers will not be able to deny insurance coverage to individuals with a preexisting condition, will an injured worker be able to cash out medical and then get treatment for that same industrial injury or occupational disease under the group health or private insurance policy?
If this issue has been addressed in the Obamacare statute or any regulations yet developed, I'm not aware of it (blog readers with any insight into this are invited to e mail me their information at firstname.lastname@example.org)
Currently, my understanding is that under current law, if a worker who is on SSD or SSI and therefore Medicare eligible settles with an MSA, regulations do not allow them to use the Medicare set-aside money to purchase health insurance with that money, i.e. the MSA money is to be used for treating the work related condition only, not for purchasing health insurance (of course, a worker could use other settlement funds to purchase health insurance or a policy that supplements Medicare).
If Obamacare survives, we'll likely see workers' comp settlements that will fund health insurance. But then again, perhaps regulations will clarify that workers' comp injuries remain an excluded pre-existing condition.
Under our current healthcare system, many injured workers have trouble getting any health insurance if they are not working. Individual coverage can be difficult to find even if the work condition is excluded from coverage.
So Obamacare may be a boon to those workers if subsidies are enough to help workers pay for coverage, particularly workers who are unemployed after an injury.
There are other aspects of Obamacare that merit mention, including the "Libby" provisions that may serve as a model for mass occupational diseases that is described in Jon Gelman's blog:
http://workers-compensation.blogspot.co ... l?spref=tw
Here is a link to a study by Paul Heaton at RAND on the effect of Romney's Massachussetts healthcare reform on the Massachussetts workers' comp system:
http://www.rand.org/content/dam/rand/pu ... TR1216.pdf
Sunday, June 24, 2012, 07:04 PM - Political developmentsWe may see some frowning faces behind the counter at the WCAB district offices.
California's budget crisis has resulted in Governor Brown entering negotiations with various state worker unions, of which SEIU Local 1000
is the largest.
Many of the clerical employees at the WCAB are members of Local 1000, which has around 93,000 members.
It's been unclear whether we would see another round of furloughs as occurred under the Schwarzenegger administration or whether there would be a 4 day workweek. Brown had proposed a 9.5 hour workday for 4 hours per week.
Instead, the deal apparently calls for a 5% salary reduction but allows for flexibility in time off.
Union members will be voting on the package this week.
Should the union membership vote to opposed and the deal fail, presumably furloughs or layoffs would be imposed.
Currently there has been no announced deal with the union which represents workers' comp judges.
Clerical staff and judges at the WCAB aren't immune to the economic challenges facing state government and many California workers.
But pay cuts do have heavy affects on many of those workers at the WCAB.
So if you see a frown now and then, that may be why.
Here is a link to the SEIU Local 1000 website which has more on the proposed deal:
http://seiu1000.org/2012/06/breaking-ne ... -state.php
Wednesday, June 20, 2012, 09:35 PM - Understanding the CA WC systemHumbert Hinkel stepped out on his porch.
He had nothing to hide. "I've got nothing to hide", he said to himself.
Unhappily, he turned down the Lady Gaga music after his surly teenager shouted obscenities about Gaga's music being ancient.
"I'll get in my all-solar vehicle and go to my workers' comp doctor to get my feel-well packet", he thought to himself. Humbert was in injured worker, caught up in the comp system.
Humbert grabbed his cane, held it, then put it back on the shelf. "I've nothing to hide, even though they may be watching", he muttered.
He knew they might be watching him.
They were always watching him. He knew that.
The day was beautiful. Flowers were in bloom.
Bees buzzed about, pollinating the neighbor's pear trees.Small birds swooped and dived.
"I have nothing to hide", he said to himself. He climbed in his all-solar
He rolled down the window. Something came over him. He remembered an old film, Network, starring Peter Finch. Finch's TV commentator character had snapped, encouraging viewers to open their windows and yell into the urban jungle "I'm mad as hell and I'm not going to take this anymore".
Humbert stood up in his all-solar vehicle, retracted the crystal canopy, and yelled, to the bees and wasps and birds " I hear you buzzing. I see you swooping and diving. You can't fool me. I know you are there, but I have nothing to hide".
The buzzing bees and wasps still buzzed. The birds still swooped and dived.
What was real and what was surveillance? The world had changed years ago.
Humbert knew that. He had nothing to hide, but the bees and birds were driving him crazy.
Humbert told me this story and asked that I show you this:
http://www.dailymail.co.uk/sciencetech/ ... lance.html