Feb 10, 2017

The bi-annual CAAA convention always provides an excellent learning opportunity to gain insight into the strategies presented by the applicant’s bar. The 2017 winter meeting in San Diego was no exception and the following highlights were gleaned over the 4 days of classes:

  • This panel session focused on ways in which doctors should be directed to other chapters in the AMA guides in furtherance of applicant attorney’s attempts to rebut the formal Guides based impairment ratings. However, the point was made that this strategy may be more the exception than the rule, as it was correctly pointed out that a proper medical report must initially provide the formal Guides based impairment rating. It is imperative that the doctor explain why the strict rating does not apply, including effects on ADLs (listed in Chapter 1), use of examples in the guides, and properly explain the alternative rating.
  • City of Sacramento v WCAB (Cannon) (2013) 79 CCC 1. The panel spent a great deal of time discussing this case which involved plantar fasciitis. There were no objective abnormalities, but based upon applicant’s subjective pain, the reporting doctor rated the condition by analogy to the chapter dealing with a limp and arthritis (Table 17-5). This was deemed permissible, and the WCAB allowed for the physicians’ exercise of clinical judgment to assess the impairment most accurately.
  • There was a discussion regarding use of the additive method rather than the combined value chart when there is no clear overlap in the impairments. Two WCAB panel decisions have upheld the judge’s findings that adding the disabilities should be allowed per Almaraz/Guzman. (Ebmud v WCAB/Kite 2013; Diaz v State of CA 2015).
  • MSA’s should consider the past two years of medical treatment. A print out of medical expenses must be reviewed, including payments for prescriptive medications. As for medications, information should include the dosage and frequency.
  • If there is no recent treatment, obtain a letter from the PTP declaring there has been and continues to be no indications for treatment.
  • Consider deposing the PTP to reduce the MSA.
  • There are many non-covered Medicare items to consider when attempting to C&R the case, including: home health care, transportation services, over the counter medications/supplements, gym memberships, foot care, hearing aids/exams, acupuncture, chiro very ltd, off label Rx and DME, co-pays.
  • Consider no submission of MSA to CMS since it is voluntary. But always document that the applicant has been informed of the MSA and agrees to keep funds in a separate account.
  • Maxim vs SCIF. Labor Code § 4062.3 and the distinction between “communication” with a QME (not objectionable) vs. “information” supplied to a QME (subject to objection if made within 10 days). My position: If I can ask a question in a deposition, why should I not be able to put it in an “advocacy letter” and send it to the QME without objection from the other side?
  • Vasquez vs Providence Medical. If a QME fails to provide a supplemental report within 60 days of a request to do so (per CCR 38), the board has discretion to order a replacement panel. There is no statutory provision mandating a replacement panel. The board will look at the following circumstances to determine whether a replacement should be issued: 1) length of the delay; 2) prejudice to the party who is subject to the delay; 3) efforts made to remedy the delay; 4) specific facts including potential waiver by the objecting party; 5) constitutional mandate to expeditiously resolve WC cases.
  • Nickerson vs Deli. If it is determined that the IMR reviewer applied an incorrect treatment guideline, which is a plainly erroneous finding of fact as a matter of ordinary knowledge and not subject to expert opinion, a new IMR is warranted. Here, the improper MTUS treatment guideline was applied in a postsurgical case.
  • Beltran vs Structural Steel. The SJDB of $6,000.00 can be settled [despite the provisions of Labor Code § 4658.7(g)] when the trier of fact makes an express finding that a serious and good faith issue exists as to AOECOE.
  • Naus vs Central Coast. An RFA that demonstrates a change in condition, following an initial denial by UR of the original request, requires the defendant to submit the new RFA to UR for determination.
  • Larsen vs Securitas. Psych Injury: Injured worker struck by an automobile in company parking lot suffered a “violent act” per Labor Code § 4660.1, which authorizes permanent disability for a psych injury as a compensable consequence of an orthopedic injury.

The philosophy and litigation position of many applicant attorneys has shifted, and they are now endorsing designation of MPN authorized treating medical providers. Due to market forces, the opportunity of obtaining out-of-network self-procured treatment is dwindling.

The problems they raised include the following, which they believe requires legislative remedies:

  • MPN authorized providers will not treat the applicant without: a) written authorization from the defendant; b) obtaining all relevant medical reports/records. They complain this is not provided, and it can take 3-4 weeks to get an MPN doctor to treat. Meanwhile, their client gets no medical care and is not authorized for TD benefits.
  • The CCR requires a treating doctor to render an opinion on “…any and all medical issues necessary to determine the employee’s eligibility for compensation.” However, the complaint is that MPN doctors are instructed to only address accepted medical conditions.
  • They also acknowledge that reports by non MPN providers cannot be used as the sole basis of an award for compensation, unless reviewed and incorporated by a QME or AME.
  • Another problem voiced is that some providers listed on an MPN have been terminated from the MPN.
  • Shimo Wang vs So California Edison. This panel decision involved the claim of physical injury (heart attack) as a result of work related stress.
    • The case presents the interesting scenario where a psychiatric injury is NOT being claimed, and therefore the stricter burden-of-proof requirements of Labor Code § 3208.3 are not involved.
    • A heart condition is a physical injury, and thus applicant’s burden is to show by a preponderance of evidence that employment was a contributing cause.
    • This case is distinguished from McCoy, in which the applicant claimed a psychiatric injury which caused a physical injury. It was held there that the psychiatric injury was defensible per the good faith personnel defense (Rolda), and thus any physical injury was also denied.
    • In Wang, applicant suffered stress as a result of interactions involved in a performance review and claimed to have suffered a heart attack as a result. Applicant did not claim any psychiatric injury (defined as a diagnosis under DSM-IV). Applicant thus argued, and the panel upheld, the theory that “job stress” is not a diagnosis, but rather a non-specific set of emotions that may or may not be associated with a disease or syndrome. That it can cause a physical injury and is not subject to Labor Code § 3208.3 regarding psychiatric injuries.
    • The case was remanded to obtain a more definitive report from the QME/cardiologist, whose reporting was deemed not substantial medical evidence regarding diagnosis and causation.
  • Good faith personnel defense (Rolda) and Labor Code § 3208.3.
    • A medical report is required to prove this defense.
    • The 4 steps reviewed:
      • actual events of employment (perceptions are not actual events) (factual/legal determination)
      • were actual events predominant cause, i.e., >51% (medical)
      • were the actual events personnel actions that were lawful, nondiscriminatory and in good faith (factual/legal)
      • were the lawful, nondiscriminatory, good faith personnel actions a substantial cause (35% – 40%) of the psych injury (medical)

Related Articles

Fall 2021 Update

To our Clients and Friends:   Perhaps the most vexing and challenging part of workers’ compensation defense, is the handling of medical disputes through the intricate and difficult PQME system.  It is a very complicated affair, with tight time frames and all...

read more

Client Bulletin SB 335

  As reported by Work Comp Central, the California Senate has passed SB 335 (on a vote of 29 to 10), which if enacted, would cause a major disruption and attendant challenges in how claim administrators handle and conduct investigations, under Lab C 5412.   As...

read more

Our Newsletter