http://workerscompzone.com/index.php Copyright 2013, julius@workerscompzone.com julius@workerscompzone.com en-US SPHPBLOG 0.4.8 http://workerscompzone.com/index.php?entry=entry130519-220823
The AMA Guidelines, 5th Edition became the touchstone of disability evaluations in 2005. But QMEs were not required to be schooled in use of those guidelines.

Many QMEs have by now delved deeply into the Guides, taking various seminars. But some QMEs still have a tenuous grip on the Guides.

And what about treating doctors? Have they mastered state-mandated treatment rules?

California adopted the ACOEM Guidelines as treatment standards and later adopted the MTUS, the Medical Treatment Utilization Schedule. Proffered treatments are required to be supported by the MTUS (found at Title 8, California Code of Regulations 9792.20 to 9792.2). Treatments not addressed by MTUS may be authorized on a rebuttal basis "if such treatment is in accordance with other scientifically and evidence-based, peer reviewed, medical treatment guidelines that are nationally recognized by the medical community" and "a variance from the schedule is reasonably required to cure of relieve the injured worker from the effects of his or her injury" (see 8 CCR 9792.25)

Could it be that few doctors are familiar with the MTUS? Have few workers' comp treating doctors even read the MTUS?

That may well be the case.

So is the argument made by Dr. Robert R. Kutzner, a Los Angeles area based
pain specialist. Writing in comments on proposed MPN regs in a DWC sponsored forum, Kutzner charges that:
"I am consternated that we write more and more laws to enforce the MTUS law when we haven't spent any effort to ensure that those whom are responsible to implement it, KNOW ABOUT IT. This is outrageously shocking and easily substantiated: Just ask any provider, any WC Insurance Adjuster, or just about anyone at the Medical Board outside the Div of WC about the MTUS and they won't know what you're talking about. To prove my point simply look at the video recording of the Med. and Pharm. Brd. joint forum on Prescription Overdose, Feb 2013, where I asked hundreds of attending WC Providers and Insurance Adjusters, to include the Professional Panel, if they knew about the MTUS only to receive a blank look where no one knew what the MTUS was. No one, not Adjusters, not TPA's, not the Providers who are supposed to implement the WC Program know anything about the MTUS. Why should they when they are not even required to read it to participate."

Kutzner defines the problem thusly:
"Providers are not required to know or implement the MTUS. Shockingly most Providers don't know what the MTUS is let alone read it. That's right, Insurance Companies don’t require Providers to even read the MTUS to get on their MPN list.
In addition, Insurance Adjusters are not required to know or implement the MTUS. The State does not require Insurance Companies to even read the MTUS to get approval to offer Workers Compensation Insurance.
Third Party Administrators (TPA’s) are not required to know or implement the MTUS. The State does not require Third Party Administrators (TPA’s) to even read the MTUS to get approval to participate in Workers Compensation."

His solution?

"Doctors that want to be on a Provider Network SHOULD HAVE TO AKNOWLEDGE THAT THEY HAVE AT LEAST READ THE MTUS.
Insurance Carriers and TPA's that want to participate in Workers Compensation SHOULD HAVE TO AKNOWLEDGE THAT THEY HAVE AT LEAST READ THE MTUS. They should also acknowledge that they will ensure that their Providers have also read the MTUS."

Kutzner has identified a very basic problem. California workers' comp has become ever more complicated.

Substantive changes in the law, procedural changes, regulatory changes.

The volume of rules and regulations that apply to stakeholders is massive.

It's likely that many of the physicians and stakeholders either are too distracted or too busy to pay attention to the details. Any the DWC currently has no way to monitor training that those stakeholders receive on the basics.

It's a problem.

Stay tuned,

Julius Young
www.boxerlaw.com
www.workerscompzone.com
]]> Medical treatment under WC http://workerscompzone.com/index.php?entry=entry130519-220823 julius@workerscompzone.com Mon, 20 May 2013 05:08:23 GMT http://workerscompzone.com/index.php?entry=entry130511-224408
An injured worker, frustrated with the delays and treatment denials in the system, simply wishes to cash out their case. As part of a buyout they usually take a negotiated amount of money in exchange for releasing the insurer from liability for future medical treatment.

Perhaps the worker has other coverage that can be relied upon to fund treatment.

But maybe not.

Workers who have employer sponsored group health coverage or private coverage administered by companies such as Blue Cross or Blue Shield may find that their treatment is denied under the terms of the policy if the policy excludes payment for workers' comp related conditions.

What about workers who have no insurance or whose insurance will not cover workers' comp? Once they settle their cases, how do they fare?

Some of those workers may be eligible for Medicare, so they are expected under Medicare's rules to "protect Medicare's interest" by using an allocated portion of their settlement (a Medicare Set Aside) to cover medical costs before Medicare will willingly kick in.

Others will use their group or individual medical insurance anyway, despite exclusionary language, hoping that their usage of treatment resources caused by a work injury is not flagged by the insurer. Some will seek treatment at the VA or public clinics or county hospitals. Some may receive "charity care".

If there is any research on how workers who settle cases access treatment resources, I'm not aware of such studies.

Perhaps the Affordable Care Act/Obamacare will affect all of this. But for now it's not clear how many injured workers end up having to pay for treatment "out of pocket" after cases are settled.

But I'm sure there are some who do.

I was thinking about those workers as I noted that the Centers for Medicare and Medicaid Services has now released a study of hospital pricing. The study documents hospital-specific charge data on the 100 most frequently billed discharges from 3,000 U.S. hospitals (a link to the study is noted below).

The study documents that there is a huge range of billed charges from hospitals for the same procedure.

Insurers may get discounts. But if you are an uninsured injured worker without insurance, you may be charged the "rack rate" just as you would be if you walked up to a hotel and booked a room without a discounted reservation.

For example, a joint replacement may on average be billed at $83,538 at California Pacific Medical Center in San Francisco and $110,305 at St. Francis Memorial in San Francisco, just a couple of miles across the city. The same procedure at a local Kaiser was on average billed at less than half the cost.

Where injured workers have settled their cases and later found themselves without coverage, have they done comparison shopping?

Perhaps. I have personally represented several workers who settled their cases and used the funds to seek medical treatment in India or Thailand at a lower cost. Undoubtedly some immigrant workers from Mexico return there to get treatment.

But for workers who need to treat in the USA, obtaining such data has been hard until now.

For those workers who have settled their cases and are without other viable coverage, the CMS data may be helpful in choosing where to have elective treatments performed.

Here is a link to the CMS site where data can be obtained on charging practices of specific hospitals (the site has a search function to search for the hospital of your choice)
https://data.cms.gov/Medicare/Inpatient-Prospective-Payment-System-IPPS-Provider/97k6-zzx3

Here is another link to the CMS study:
http://www.cms.gov/Research-Statistics- ... index.html

Here is a link to a New York Times analysis of the study:
http://www.nytimes.com/2013/05/08/busin ... shows.html

Stay tuned.

Julius Young
www.workerscompzone.com
www.boxerlaw.com that]]> Medical treatment under WC http://workerscompzone.com/index.php?entry=entry130511-224408 julius@workerscompzone.com Sun, 12 May 2013 05:44:08 GMT http://workerscompzone.com/index.php?entry=entry130508-225134
You can decide for yourself. But brace yourself. It's not a pretty picture.

I'm talking about the photo of Reggie Williams' knee.

The former football star is featured in a Sports Illustrated article about AB 1309, the bill which would limit the ability of professional athletes (including those in the minor leagues) to file California workers' comp claims.

Here's a link to the article:
http://sportsillustrated.cnn.com/nfl/ne ... index.html

As the author notes:
"It's possible that AB 1309 could be passed in a weaker form. For instance, the sides could grandfather in some current claimants so they maintain their existing benefits, or phase out their benefits gradually instead of abruptly terminating their cases. The ultimate irony remains that if the bill passes as currently written, Williams and other athletes would have to turn to government assistance in covering their medical costs. In that case, taxpayers would be the ones fitting the medical bills."

Read More: http://sportsillustrated.cnn.com/nfl/ne ... z2Slwmwg7e

Stay tuned. I'll continue to cover the controversy generated by AB 1309.

Julius Young
www.boxerlaw.com
www.workerscompzone.com]]> Political developments http://workerscompzone.com/index.php?entry=entry130508-225134 julius@workerscompzone.com Thu, 09 May 2013 05:51:34 GMT http://workerscompzone.com/index.php?entry=entry130429-224033
Clean up the unconscionable backlog of panel QME requests. The QME panel backlog as of mid 2012 had been whittled down to around 30 days under the leadership of former DWC Administrative Director Rosa Moran.

Thanks to the reporting of Greg Jones in Workcompcentral.com, we now know that the DWC has admitted that the backlog has grown by a factor of 5 times in less than one year!

Since mid 2012 the backlog has grown to 5 months according to a statement quoted by Jones from DWC spokeswoman Erika Monterroza.

Jones' article notes that Monterroza responded to an e-mail inquiry as follows:
"The subsequent delay in issuance of panels occurred after overtime and
student assistant work was no longer available".

Monterroza also noted that
"The current backlog for represented cases is back to November 2012".

In plain English, this means that the DWC is just now dealing with requests for QME panels in represented cases that were made around Thanksgiving.

That's pathetic.

It's shameful.

In a normal private sector organization heads would roll or an emergency action plan would be put into place to rectify the problem.

But so far there is little indication that this is on the radar for leadership at the DIR and DWC.

It's not just workers and applicant attorneys who are disturbed by the delays. Insurers have reserves that are tied up as claims can't be resolved.
Self-insureds can't move files.

In some cases treatment costs may increase since workers in denied cases that are later accepted are able to treat out of network during the denial. Periods of temporary disability may be longer because a QME eval is delayed. The longer those claims are open the more likely that compensable consequence injuries are raised.

Some employers and insurers will simply not use AMEs. For example, a Safeway adjuster told me last week that their claims people have been told not to agree to AMEs.

But with the wait for panels getting steadily longer, those files are going to be lingering longer.

This is a project for CHSWC:

Do a study on why the DWC seems to have trouble issuing panels in a timely fashion.

And while you're at it, take a look at whether the division is adequately staffing the unit that will determine whether IMR requests are ripe for determination by Maximus.

Recently, Dr. Rupali Das of the Medical Unit was noted as saying that the DWC plans to publish some IMR decisions. It would appear that the DWC is taking on more projects at a time that it is mishandling other fundamental ones.

Stay tuned.

Julius Young
www.workerscompzone.com
www.boxerlaw.com]]> Political developments http://workerscompzone.com/index.php?entry=entry130429-224033 julius@workerscompzone.com Tue, 30 Apr 2013 05:40:33 GMT http://workerscompzone.com/index.php?entry=entry130428-220005
Workers generally gave up the right to seek redress by filing tort lawsuits against employers. Instead, workers' comp law provided a structured level of benefits to injured workers in lieu of having to prove fault in a court of law.

Workers' comp became a part of the social safety net, delivering medical treatment and some indemnity benefits to injured workers. As we know in California, that's a multi-billion dollar industry with its own set of stakeholder players who periodically instigate reform attempts in an effort to reallocate costs and their shares.

Then along came other trends.

Carve outs, where some employers and unions could set some of their own procedural rules.

California is now struggling with how it should deal with claims by athletes who file claims here, some of whom have very minimal connections to California.

How that is resolved could have bearing on how California deals with other interstate employees.

And now, in some other states such as Texas and Oklahoma, there are laws that would allow employers to opt out of workers' comp entirely.

Meanwhile, the long term effects of the Affordable Care Act are starting to roil America's health care system. Anyone who is paying even slight attention is likely to notice the steady stream of articles noting the concerns that are developing about how the ACA rollout is going. Perhaps those difficulties are due to the complexity of the law itself, GOP opposition, or problematic execution by the Obama Administration, or all of those reasons.

In any event, some observers are predicting large increases in healthcare costs, delays in implementation, confusion of small businesses and individuals, and a political train wreck.

If the ACA was to fail will there then be momentum for a single payer system ? A system that offers 24 hour care? There are already many advocates for that type of system.

If so, we could be looking at another very basic change in workers' comp in coming years.

The point is that there is nothing inherently sacred about the comp system.

It's always ripe for re-engineering.

We live in a time when the notion of entitlements is coming under scrutiny.
There's more focus on tax reform, immigration reform, public employee pensions, Social Security and Medicare. But you can bet on it that workers' comp will continue to evolve along with other publicly mandated and administered programs.

Here's a link to a provocative article by The Washington Post columnist Robert Samuelson, "The Twilight of Entitlement":
http://www.realclearpolitics.com/articl ... 18152.html

Stay tuned.

Julius Young
www.workerscompzone.com
www.boxerlaw.com

]]> Political developments http://workerscompzone.com/index.php?entry=entry130428-220005 julius@workerscompzone.com Mon, 29 Apr 2013 05:00:05 GMT http://workerscompzone.com/index.php?entry=entry130424-230322
Today AB 1309 survived a vote in the Assembly Insurance committee.
Most Democrats on the committee joined with Republican supporters.
Voting to move the bill as is were Democrats Susan Bonilla, Ian Calderon, Jim Frazier, Holly Mitchell, Ken Cooley, Norma Torres and committee chair Henry Perea.

Here is a link to an analysis of AB 1309, including a list of supporting and opposing organizations:
http://leginfo.ca.gov/pub/13-14/bill/as ... _comm.html

Here is a link to the current version of the bill:
http://leginfo.ca.gov/pub/13-14/bill/as ... sm_v98.pdf

This is not the end of the story, however. Negotiations about bill language will continue, and it is still not clear how the bill will fare in the California Senate.

Stay tuned.

Julius Young
www.boxerlaw.com
www.workerscompzone.com

]]> Political developments http://workerscompzone.com/index.php?entry=entry130424-230322 julius@workerscompzone.com Thu, 25 Apr 2013 06:03:22 GMT http://workerscompzone.com/index.php?entry=entry130420-192849
That is a concept that is included in the former version of AB 1138 (Chau).
Until a recent amendment of AB 1138, the bill was on the California Chamber of Commerce "Job Killer" list. Due to amendment of the bill, it has been taken off the Cal Chamber list although the Chamber's website says they still oppose the bill.

The legislative counsel digest on the former version of the bill explained that:
"This bill would require employers to post a notice of covered employees showing the full names of employees covered by the employer’s workers’ compensation carrier, and updated quarterly, as specified. The employer would also be required to keep separate lists of covered employees, that would include specified identifying information for each covered employee, and make those lists available in written and electronic form, as specified, upon request, to specified governmental entities and the workers’ compensation insurer. The bill would require the employer to retain a copy of each notice and each list for 5 years. Except as provided, failure by an employer to retain or provide copies to specified government agencies of these notices or lists and the absence of the name of any employee from the notices or lists would conclusively establish that the employer did not obtain workers’ compensation insurance as required by law. The bill would provide that these lists are not public records subject to California Public Record Act."

The current version of the bill would not require the posting of all covered employee names.

Instead, the bill provides that:
"This bill would require the employer, commencing January 1, 2014, and January 1, 2015, to submit to its workers’ compensation insurer specified reports that it is required to submit to the Employment Development Department, and the insurer would be required to include the names of all covered employees in the workers’ compensation insurance policy. The employer would also be required to make a list of all employees covered by its workers’ compensation policy, which would include specified identifying information for each covered employee, to be available in written and electronic form, as specified, upon request, to specified governmental entities and the workers’ compensation insurer. The bill would provide that these lists are not public records subject to the California Public Records Act."

Gone from the current version of AB 1138 is a provision that would have permitted a civil action against those employers who fail to conspicuously post a list of every employee covered under an employer’s workers’ compensation insurance policy.

Opponents of this bill had argued argued that mandatory name-posting of covered employees is burdensome for both large and small businesses, particularly if new hire names must be frequently posted.

AB 1138 is rooted in concerns that many employers cheat on insurance coverage, either not carrying coverage or misclassifying workers.

A 2007 report prepared for the California Commission on Health, Safety and Workers' Compensation by UC Berkeley's Frank Neuhauser and Colleen Donovan noted that the California underground economy is huge:
http://www.dir.ca.gov/chswc/Reports/Fra ... 4_2007.pdf

Uninsured employer fraud and employer premium fraud are large problems. The 2007 report by Neuhauser and Donovan noted that there may well be billions in unreported payroll.

Employers who cheat by failing to secure comp coverage on employees or who misclassify employees can get an unfair advantage by cutting corners. These same employers are likely to cut other corners by violating health and safety rules, wage and hour rules, and taxation.

Requiring that employers share more information with insurers may help discourage employer fraud. While it won't prevent fraud by employers who simply buy no coverage whatsoever, it would appear likely to help provide a mechanism to track who is employed and who is covered.

A link to the current text of AB 1138 can be found here:
http://leginfo.ca.gov/pub/13-14/bill/as ... sm_v97.pdf

As of April 17 AB 1138 had been re-referred to the Assembly Insurance Committee. Let's hope that this bill gets a fair hearing and moves forward this year.

Stay tuned.

Julius Young
www.workerscomzone.com
www.boxerlaw.com]]> Political developments http://workerscompzone.com/index.php?entry=entry130420-192849 julius@workerscompzone.com Sun, 21 Apr 2013 02:28:49 GMT http://workerscompzone.com/index.php?entry=entry130417-224033
Anyone deeply involved in the system has seen how long term disability affects individuals and their families.

Economic research now shows that long term unemployment makes it less likely that a worker will be hired. In a way that's not surprising, as most of us realize that it's easier to get a job if you have a job.

These sorts of issues are studied by economists, some of whom study Beveridge curves, an index that correlates job openings with unemployment. The classic relationship is an axis where when unemployment increases, job openings decrease.

But recent research by economists Rand Gayhad and William Dickens of Northeastern University in Boston show that workers out of work for more than 6 months have a very different pattern on the Beveridge curve.

As summarized by Matthew O'Brien in an excellent piece in The Atlantic titled "The Terrifying Reality of Long-Term Unemployment":
"Employers prefer applicants who haven't been out of work for very long, applicants who have industry experience, and applicants who haven't moved between jobs that much. But how long you've been out of work trumps those other factors."

Callback rates are significantly lower for workers unemployed for more than 6 months.

O'Brien's article documents that long term unemployment is more of a handicap in finding employment than "work churn", i.e. where a worker has switched jobs frequently.

O'Brien says that:
"Long-term unemployment is a terrifying trap. Once you've been out of work for six months, there's little you can do to find work. Employers put you at the back of the jobs line, regardless of how strong the rest of your resume is. After all, they usually don't even look at it."

In an era when many economists believe that high unemployment is structural and not merely cyclical, long term unemployment constitutes a great challenge.

With the demise of vocational rehabilitation, California's workers' comp system provides little assistance to the long-term unemployed.

It's little wonder that workers choose to hire attorneys, fighting for any scrap they can.

Here is a basic introduction to Beveridge Curves:
http://en.wikipedia.org/wiki/Beveridge_curve

This is the link to The Atlantic article:
http://www.theatlantic.com/business/arc ... nt/274957/

And here is an interesting piece by Thomas Edsall in The New York Times,
"Are the Good Jobs Gone?":
http://opinionator.blogs.nytimes.com/20 ... s-gone/?hp

Stay tuned.

Julius Young
www.workerscompzone.com
www.boxerlaw.com
]]> Understanding the CA WC system http://workerscompzone.com/index.php?entry=entry130417-224033 julius@workerscompzone.com Thu, 18 Apr 2013 05:40:33 GMT http://workerscompzone.com/index.php?entry=entry130413-185022
That's a subject addressed by an April 12, 2013 report of the Workers Compensation Insurance Rating Bureau of California , known as the WCIRB (see link to the report below).

One of the functions of the WCIRB is to collect information on insurer experience which then is published and forms a basis for rate recommendations to Insurance Commissioner Dave Jones. The Commissioner then sets advisory rates but not actual rates.

What follows are some interesting figures pulled from the WCIRB study (which includes some projections reflecting the impact of the 2012 SB 863 reform):

- PREMIUM IS UP, WAY UP
Comp premium collected from employers is up, way up. In fact 2012 premium was 42% more than 2009 and 16% more than 2011. This reflects some improvement in the California economy.
Still, "written premium" is way down from a 2004 high ($12.5 billion in 2012 vs. $23.5 billion in 2004). 2012 premium was only slightly higher than 2001 premium.

-AVERAGE RATES ARE STILL WAY DOWN FROM PRE-SB 899 LEVELS
Average charged rates are still 59% below average charged rates in 2003, though they have increased 24% since 2009. The WCIRB says that average charged rates (excluding certain credits and policyholder dividends) was $2.60 per $100 of payroll for policies written in the last half of 2012. Compare this to $6.29 per $100 of payroll in the latter half of 2003.
Whatever the reasons that led to high workers' comp costs in 2002 and 2003 (and there were many factors), those costs have come down substantially. For example, here are the industry average charged rate per $100 of payroll for the last 5 years:
-2007 (1st half): $2.75
-2007 (2nd half): $2.30
-2008 $2.15
-2009 $2.10
-2010 $2.25
-2011 $2.32
-2012 (1st half) $2.48
-2012 (2nd half) $2.60


-CARRIER LOSS RATIOS HAVE IMPROVED
Carrier loss ratios have improved. For example, the "combined ratio" and expenses for 2012 is projected to be 127%, way down from ratios seen in the years before the millennium (188% in 1999 for example) and down from 137% in 2010 and 136% in 2011.
Insurers make money on invested premiums, so a "combined ratio" of losses in excess of 100% of premium does not mean that they are losing money. And in any event, current "combined ratios" are far from levels which would show that the industry is in a new era of crisis.

-THE NUMBER OF CLAIMS HAS CLIMBED BUT IS STILL DOWN FROM HISTORIC LEVELS
Claim "frequency" statistics measure the number of claims. While those have increased slightly over the last few years, the WCIRB noted that those were 30% below the levels of claims before the reforms under Gray Davis and Arnold Schwarzenegger. Claim frequency rose only 2.7% in 2012

-MEDICAL COSTS MAY BE LEVELING OFF
According to the WCIRB, the projected average medical cost (including medical cost containment costs) of a 2012 indemnity claim is slightly below that of the prior year. For 2012 the projected ultimate medical per indemnity claim (excluding medical cost containment expenses) is $39,619 versus $40,055 for 2011. When medical cost containment expenses are factored in, costs still are projected to drop for 2012 accident year claims versus 2011 accident year claims.

-INDEMNITY COSTS APPEAR TO BE FLAT
Indemnity per indemnity claim costs have basically been flat for the past 4 accident years. Here are those figures:
2009: $24,544
2010: $24,590
2011: $24,883
2012: $25,008

-ALAE COSTS CONTINUE TO RISE
While medical costs appear to have dipped, the WCIRB notes that projected ALAE costs are slightly higher than for 2011 and "approximately 95% higher than the average ALAR severity for 2005." ALAE costs were $5,977 per indemnity claim in 2004. For 2012 accident year claims those costs have risen to $11,756 per claim.

Just what are these ALAE costs that have risen? ALAE includes the costs associated with handling claims that can be directly allocated to a particular claim. ULAE includes the costs associated with handling claims that cannot be directly allocated to a particular claim.

A 2008 WCIRB report noted that:
"Unlike losses, calendar year ALAE and ULAE incurred amounts have not declined subsequent to reform. As a result, both have increased significantly as a percentage of calendar year losses."

The April 2013 WCIRB report explains that:
"Beginning with claims incurred on policies incepting on or after July 1, 2010, the cost of medical cost containment programs (MCCP) is reported to the WCIRB as allocated loss adjustment expense (ALAE) rather than as medical loss."

In a 2012 rate filing the WCIRB claimed that the growth in allocated loss adjustment expenses (ALAE) were "largely the result of an increased volume of liens and increases in litigation related to permanent disability claims".

Those lien and litigation "friction costs" were targeted in the 2012 SB 863 reforms, of course.

However, the April 2013 WCIRB report fails to acknowledge that SB 863 did not target the medical cost containment program costs (i.e. the MCCP costs), as utilization review procedures and MPN procedures were left relatively unscathed by SB 863. While those programs may have helped control medical costs, they have also become cost drivers in their own right. Morevover, the recent WCIRB report does not analyze whether the new IMR scheme administered by Maximus will further drive the MCCP cost curve upwards.

The WCIRB Report on December 31, 2012 Insurer Experience can be found here:
http://www.wcirb.com/sites/default/file ... ns_exp.pdf

The WCIRB's 2008 report on loss adjustment expense trends can be found here:
http://www.wcirb.com/sites/default/file ... t_2008.pdf

The WCIRB's "Report on 2011 California Workers' Compensation Losses and Expenses" can be found here:
http://www.wcirb.com/sites/default/file ... penses.pdf

Stay tuned. In coming posts I will be commenting on two legislative proposals, AB 1309 (Perea) and AB 1138 (Chau).

Julius Young
www.workerscompzone.com
www.boxerlaw.com
]]> Understanding the CA WC system http://workerscompzone.com/index.php?entry=entry130413-185022 julius@workerscompzone.com Sun, 14 Apr 2013 01:50:22 GMT http://workerscompzone.com/index.php?entry=entry130405-183241
We want to see your money on the barrellhead.

In life one of the big things is just "showing up". Now it turns out that's not enough. If you are a lien claimant you really do have to "pay up".

No more showing up at conferences without proof of your payment of an activation fee.

That's the message delivered by the WCAB in a significant panel decision, Eliezer Figueroa V. B.C. Doering. According to the WCAB website:
"The Appeals Board panel held that, where a lien claim falls within the lien activation fee requirements of Labor Code section 4903.06: (1) the lien activation fee must be paid prior to the commencement of a lien conference, which is the time that the conference is scheduled to begin, not the time when the case is actually called; (2) if the lien claimant fails to pay the lien activation fee prior to the commencement of a lien conference and/or fails to provide proof of payment at the conference, its lien must be dismissed with prejudice; (3) a breach of a defendant’s duty to serve required documents or to engage in settlement negotiations does not excuse a lien claimant’s obligation to pay the lien activation fee; and (4) a notice of intention is not required prior to dismissing a lien with prejudice for failure to pay the lien activation fee or failure to present proof of payment of the lien activation fee at a lien conference."

The WCAB panel (composed of Commissioners Lowe, Caplane and Brass) summarized the facts in the Figueroa case as follows:
"On April 15, 2011, the WCJ filed a Findings, Award & Order, awarding
benefits. On July 30, 2012, a lien claimant, not Orthomed, filed a Declaration of Readiness to Proceed (DOR) requesting a lien conference.
The lien conference was set for January 9, 2013, at 8:30 a.m. Orthomed did not appear at the conference. Because Orthomed did not submit proof of prior timely payment of the lien activation fee, and because the WCJ reviewed the record and determined that the lien activation fee had not in fact been paid, the WCJ dismissed Orthomed’s lien with prejudice, without first issuing a notice of intention."

The decision does not discuss whether the lien claimant claimed a basis for its non-appearance at the conference or whether it claimed a lack of notice.

Instead, the decision tells us that:
"On reconsideration, Orthomed contends that the activation fee is not payable where defendant has not served supporting documents, thus depriving lien claimant of the opportunity to resolve the lien.Orthomed also contends that “the new lien regulations lacks [sic] latitude in allowing certain circumstances that are not just black and white.” Orthomed does not claim on reconsideration that it paid the lien activation fee."

Interestingly, the WCAB decision includes the following analysis:
"We interpret the payment “at the lien conference” language of section 4903.06(a)(4) and the payment “prior to appearing at a lien conference” language of emergency Rule 10208(a) to mean that a lien activation fee must be paid prior to the commencement of a lien conference, which is the time that the conference is scheduled to begin, not the time when the case is actually called. Any payment made after the noticed hearing time is not timely. Therefore, the lien of Orthomed was correctly dismissed with prejudice."

The message to lien claimants is clear: showing up is not enough. You must also pay up.

Of course, showing up is good, too.

And by the way, don't expect to pay at 9:30 when your case is called by the judge. The notice of conference said 8;30, so you'd better pay your activation fee before then.

The April 5, 2013 significant panel decision decision in Eliezer Figueroa v. B.C. Doering can be found here:
http://www.dir.ca.gov/wcab/wcab_panel.htm

Stay tuned.

Julius Young
www.workerscompzone.com
www.boxerlaw.com]]> Understanding the CA WC system http://workerscompzone.com/index.php?entry=entry130405-183241 julius@workerscompzone.com Sat, 06 Apr 2013 01:32:41 GMT