MICRO

SURVIVAL

2020

Edition 4.0

Including AD Regulations

SB 1160 & 1244

AB 5

GUIDE

Case Law Updates and When to Use an AME

Special Supplements and Primer By Corey A. Ingber

2020 © all rights reserved

Edition No.: 4.0

Revised: 01/15/2020

NEW FOR 2020

AB 5 GOES INTO EFFECT [HIGHER BAR FOR ESTABLISHING INDEPENDENT CONTRACTOR] For purposes of wage orders, the effective date is 01/01/2020. For workers’ compensation purposes, AB 5 goes into effect only for injuries on or after 07/01/2020. Under AB 5, there is an operative presumption that a worker will be deemed an employee unless the employer can disprove the presumption using the “ABC” test made applicable in the Dynamex decision. Section 2750.3 is added to the Labor Code, incorporating the “ABC” test, which for the most part, replaces the prior standard under the Supreme Court decision in Borrello, which was chiefly a “control of work details test,” but also incorporated a number of sub-parts, so that in effect it was a multi-factual test, which has held since 1989

DYNAMEX DECISION

Dynamex is not a workers’ compensation case but rather one exclusive to California wage orders. Dynamex involved an attempted certification of class action status for alleged employees, who were performing services for Dynamex involving the delivery of parcels and items. The Dynamex court was very sympathetic to the existence of pervasive abuses in the misclassification of employees. Without going into extensive detail, the Supreme Court has revisited Borello and in a lengthy decision spanning over 40 pages, the Court determined that for the purpose of wage orders only, Borello is no longer the test. It will be supplanted by a simpler and more easily accommodated test known as“ABC”

AB 5

In specific recognition of the Dynamex decision, the legislature has passed, and the Governor has now signed AB 5. The bill is specifically a codification of the Dynamex decision, which now renders Dynamex applicable to all aspects of the employment relationship, including workers’ compensation, subject to some exceptions

Under AB 5, there is a presumption that a worker is deemed an employee, unless the employer can disprove the presumption by applying the “ABC” test made applicable in Dynamex and now made specifically applicable to workers’ compensation. However, the “ABC” test is used first,

1

unless a “court of law” should rule that the “ABC” test cannot apply within the factual context. The statute also provides specific exceptions where Borello would still otherwise apply

Accordingly, Section 2750.3 is added to the Labor Code, providing that a person providing labor or services for remuneration shall be considered an employee rather than an independent contractor, unless the hiring entity demonstrates that all the following conditions are satisfied:

A.The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance and in fact;

B.The person performs work that is outside the usual course of the hiring entities business;

C.The person is customarily engaged in an independently-established trade, occupation or business of the same nature as that involved in the work performed

If we examine the Borello test versus the “ABC” test, it is noted that Borello contains more factors but Lab C Section 2750.3 mandates that work performed is “outside the usual course” of the hiring entity’s business versus “distinct occupation or business” under Borello. I believe that the “outside” criteria makes it more difficult to frame a worker as an independent contractor versus the looser and more generic terms employed by Borello

But the new statute goes on to indicate that “if a court of law rules that the three-part test in Paragraph (1) cannot be applied to a particular context based on grounds other than an expressed exception to employment status as provided under Paragraph (2), then the determination of employee or independent contractor status in that context shall be governed by the California Supreme Court’s decision in S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48Cal3d 341) Borello”

The statute carves out several exceptions, based upon type of occupation for which Borello would apply. These include the following:

1.Insurance broker or agent;

2.Physician, surgeon, dentist, podiatrist, psychologist or veterinarian;

3.Lawyer, architect, engineer, private investigator or accountant;

4.Securities broker or investment advisor or agents;

5.Direct sales person;

6.Commercial fisherman

2

The statute then defines specified “professional services” and if the status of the work falls within the purview of “professional services,” then Borello applies. This only occurs if several conditions are satisfied under this new statute:

A.The individual maintains the business location, which may include the individual’s residence, which is separate from the hiring entity. Nothing in the subdivision prohibits an individual from choosing to perform services at the location of the hiring entity;

B.If the work is performed more than 6 months after the effective date of this section, the individual has a business license, in addition to any required professional licenses or permits for the individual to practice in their profession;

C.The individual has the ability to set or negotiate their own rates for the services performed;

D.Outside of project completion dates and reasonable business hours, the individual has the ability to set the individual’s ownhours;

E.The individual is customarily engaged in the same type of work performed under contract with another hiring entity or holds himself out to other potential customers as available to perform the same type of work;

F.The individual customarily and regularly exercises discretion and independent judgment in the performance of the services.

The term “professional services” means services that meet the criteria, including: marketing, administrator of human resources, travel agent, graphic designer, grant writer, fine artist and services provided by an enrolled agent licensed by the U.S. Department of the Treasury to practice for the IRS, payment processing agent through the independent sales organization, services provided by a still photographer or photo journalist, services provided by a freelance writer, editor or newspaper, cartoonist, who does not provide content submissions, services provided by a licensed esthetician, licensed electrologist, licensed manicurist, licensed barber or licensed cosmetologist. [And under these subsections more conditions are imposed]

The list goes on to include real estate licensees and repossession agencies. Again, for the coverage of these individuals and organizations, the

Borello test is applicable and not Dynamex

PEACE OFFICERS AND FIREFIGHERS: NEW PRESUMPTION ADDED: SENATE BILL 542. Post-

Traumatic Stress Disorder (“PTSD”) is now recognized as an actual and separate injury and subject to a rebuttable presumption. The Peace Officer or Firefighter would ordinarily have to have a minimum of 6 months of service, in order to secure the presumption, unless the injury arises from an employment event which is “sudden and extraordinary.” This new presumption extends following the termination of employment at the rate of 3 calendar months for each full year of requisite service, not to exceed 60 months. This new presumption, while ostensibly confined only to “PTSD,” seems to essentially create a potential new presumption for other psyche injuries, since PTSD is to be diagnosed per the DSM. Will this encourage more psyche claims? I believe that it could motivate some applicant attorneys,

3

specializing in this area of practice, to take a serious look and yes, it could likely make psyche claims easier to prosecute, even if they only have a component of PTSD

MPN ROSTER REQUIREMENTS EXPAND: Lab C 4616(a)(4)(A)(1) added: Commencing 07/01/2021, MPN’s

shall post the roster of all participating providers, which includes all physicians and ancillary service providers within the MPN. Every MPN shall provide the AD with a roster of participating providers and each office address and telephone number

REQUEST FOR PAYMENT: Lab C 4603.2 (b)(1)(C) added: Request for payment with itemization of services shall be submitted to employer with the national provider identifier (NPI) for the physician or provider who provided the service. Failure to provide the NPI shall result in request for payment being barred until NPI is submitted. Defendant may request NPI at an earlier date

AD EMPOWERED TO INVESTIGATE, REVIEW AND TAKE ACTION AGAINST MPNS: NEW: Lab C

4616 (i) added: AD has authority and discretion to investigate complaints, conduct random reviews and take enforcement action

against MPNs, including any entity that provides ancillary services or an entity which provides servicers on behalf of an MPN, regarding non-compliance with regulations

ADDITIONAL DEFINITION OF EMPLOYEE: [Lab C 3370.1, 3351] Lab C 3351 amended to add as “employee” as of 07/01/2020, any person who is committed to a state mental hospital, while in the course of a vocational rehabilitation program work assignment, including sheltered workshop work assignment, subject to conditionsi

NEW WCAB RULES OF PRACTICE AND PROCEDURE: The new rules were published on 12/31/2019 and went into

effect on 01/01/2020. The new rules can be found here: https://www.dir.ca.gov/wcab/WCABProposedRegulations/Rulemaking-August- 2019/Final%20Rulemaking/Final-Text-Of-Regulations.pdf We are studying the new rules now and we will provide a Client Update in the very near future

4

PROPOSED NEW REGULATIONS: There is nothing on the DIR/WCAB web site, so nothing active is in the actual works

SPECIAL SUPPLEMENT for 2020

The Importance of Tracking all Body Parts in a Claim

For many applicant attorneys, and even for some treating physicians, the admittance of an injury and the provision of medical treatment are often viewed as the equivalent of a carte blanche to other body parts, some of which may not have any realistic, causative connection to the injury. It is therefore essential to good claims handling and for a successful defense, that all body parts should be listed and then tracked throughout the life of an indemnity claim. The impact can be substantial, not only for every day decision-making, but also for achieving maximum impact on discovery, claim settlement, and lien handling. By tracking the “admitted” vs. “disputed” body parts, the claims examiner and counsel can easily dispatch arising issues and make good strategic decisions about medical discovery, litigation, and potential settlement

For practical considerations, this writer keeps an ongoing “chart” for all body parts, so I know exactly which parts are admitted and which are disputed, or as they say, “in play.” This helps me critically evaluate a new medical report, conduct an effective deposition, and it helps determine whether the case should settle or go to hearing. Think of the many ways in which disputed body part issues arise:

BENEFIT NOTICES: Providing clear notice to the injured worker as to which body parts are admitted and which are being disputed. This sets the predicate for subsequent non-UR treatment denial decisions

NON-UR TREATMENT DECISIONS: Denials to RFA’s from the PTP or secondary treating physician which can be made without having to refer to utilization review. This is exclusive to either denied injuries or denied body parts

MPN ISSUES: Denied body parts can be treated outside of the MPN, but such treatment is self-procured and should be denied on a continuing basis

WHETHER TO USE AN AME OR QME: The presence of and number of so-called “disputed body parts” could have an impact on your decision as to whether to utilize an AME or a PQME. We generally recommend utmost caution in using an AME for disputed body parts, but it still may have a place

5

RED FLAG MEDICAL REPORTING: How many times have you adjusted an admitted lower back claim, with no reported radiation of pain to the lower extremities, but upon the applicant’s selection of a new PTP, you now receive medical reports where the pain is now extending to the hips, knees, legs and feet? Or, what about the neck injury which now straddles to the lower back? The so-called “red flags” can lead to credibility issues and can even form the basis for a later denial of a body part, or even the entire claim

SIDE-BY-SIDE ANALYSIS: We make it a consistent practice to review PTP reports with a healthy dash of skepticism, whether it be a PR-2, a PR- 4, or a narrative summary. Specifically, we are looking for “phantom body parts,” or simply exaggerated complaints, which have not previously arisen in any medical reporting. An example is an admitted right knee injury, where you start to see the PTP reporting on the left ankle, right hip, and even lower back. Catching these potential inconsistencies early on can impact discovery and can even provide some defense momentum for early case settlement. A lot of applicant attorneys don’t want to be involved in litigating claims, where their client is patently exaggerating or outright lying to the physicians

COMPENSABLE CONSEQUENCES OR CREDIBILITY ISSUES? Keeping up with the addition of any new body parts to the claim can help determine whether these may be the legitimate consequences of the admitted injury, the result of the imagination of the applicant, or the creative license of the PTP. Stay aware

HELPING DEFENSE COUNSEL WITH THE DEPOSITION: This is one of the best places to focus attention on the applicant’s credibility. This is where, as they used to say, “the rubber meets the road.” Here, the applicant can be examined on when the phantom body part complaint arose, whether it was disclosed to a previous PTP, and a lot more. Sometimes, an applicant’s listing of complaints barely resembles the reported symptoms to the last PTP. So, this helps make some good decisions on the applicant’s credibility

SETTLEMENT IMPACT: Effectively and aggressively handling the disputed body parts can very often result in the achievement of excellent settlements, because it is here where your negotiations can be effectually focused, in order to highlight and illustrate credibility issues, rather than arguing over impairment. Your strongest arguments then focus on the most vulnerable part of the applicant’s claim. It also helps to educate opposing counsel on the realistic limits of the case

ADJUSTING TREATMENT LIENS: Disputed body parts make fee schedule arguments essentially moot. Here, you are in a strong position to obtain good results with lien claimants, especially when they have the full burden of proof on an otherwise settledcase-in-chief

SHAPING AND LIMITING EXPOSURE ON AWARDS: One of the most overlooked aspects of a stipulated findings and award is the effective limitation for exposure to future medical care by either specifically stipulating to “no injury” for the disputed body parts or shaping an award to deal with those body parts. When drafting a stipulated findings and award, every body part in the record should be dealt with. Do not leave any

6

body part out. The same advice applies to a compromise and release. With effective tracking and monitoring of all body parts, you stay in control and are on the right path to best claims outcomes

A Few Practice Tips for 2020

APPORTIONMENT: More than a few physicians are still using the “old” pre-reform apportionment analysis in their reports without much regard for Lab C 4663 and Escobedo and really very few seem to really nail it right to “causation.” And sometimes the parties are even confused over the issue. This can become the “Achilles Heel” when critically analyzing a medical report. Also, remember if you have a prior stipulated award, it is recommended that you file that award in the pending case, together with a request the WCAB take judicial notice, since the “existence of that prior award” is a burden for the defendant to establish, in order to support apportionment under Lab C 4664. Also, in reviewing medical reports from a PQME or AME, I like to start with the apportionment discussion first. This usually tells me whether the rest of the report is of quality. If the physician fails to address apportionment, other than as a “template,” then I have a suspicion about the rest of the report as well. All too often, I see apportionment treated in an overly simplistic fashion. Remember, even if the apportion conclusion is in your favor, it still must be considered substantial medical evidence, so it may become necessary to augment a PQME report with a letter to the physician, asking for a clarification so that the final medical opinion can withstand WCABscrutiny

THE MPN IMR: “The Other IMR” Residing within the MPN statutes and Administrative Rules (Lab C 4614.4; 8 CCR 9768.1)) is the so-called “2nd and 3rd opinion provisions, under which applicant can obtain a second and third opinion from another physician, within the MPN, should he/she object to the diagnosis, diagnostic service or treatment recommendation of the MPN PTP. Applicant can request IMR within the MPN system and under 8 CCR 9768.9(d) can also request an actual physical examination. Remember, this process is entirely separate and apart from the regular UR/IMR system. Some applicant law firms are skipping the objections to the PTP findings, skipping over the 2nd and 3rd opinions and going straight for the actual physical examination. Watch out for this sneaky tactic, since it can appear confusing, based upon their cover letters. Be careful. The objections must take place in proper time and sequence, in order to have the right to request an actual physical examination. They don’t get to “pick and choose” the steps in this process. If they haven’t followed the steps, then object.

CHECK EAMS: If there has not been any substantial activity on your litigated claim for months, you might want to check EAMS. That will give you any update on recently filed documents and it may also come up with a new subsequent claim

COURT CALL: The WCAB permits the use of Court Call, at the sole discretion of each WCAB Judge. Court Call allows defense counsel to call in and then participate in a WCAB matter without having to make a physical appearance. We encourage the selective use of Court Call, especially for Status Conferences and particularly when dealing with the “mill” applicant law firms, who are known for setting multiple

7

matters on calendar for the same date and time, so defense counsel is often left waiting for hours, while the applicant’s attorney shuttles from hearing room to hearing room. But it should be used very selectively and only on a case-by-case basis. Court Call is generally preferable for Status Conferences. In very rare instances, where the issues are simple and it is our DOR, we might appear for an MSC, typically when we know the matter will likely be continued or taken off calendar. Here is the link to Court Call: https://courtcall.com/

STIPULATED AWARDS AND BODY PARTS: Proper drafting of a stipulated findings and award can be tricky. Always make sure to deal with “every single indicated body part” in every stipulation with request for award. You don’t want to “buy” body parts, which should otherwise be rejected; but the stipulated award must specially deal with each and every body part in the record. Make a list of each and every body part and bodily system in the medical record and then either stipulate to “no injury” or list as an admitted body part. And, you need to insert an actual rating for each and every body part producing PD, otherwise you have chaos if there is a subsequent petition seeking new and further disability

Color Key

BLUE ...............................................................

NEW DEVELOPMENT AND/ OR FURTHER ANALYSIS

DARK RED........................................................

ADMINISTRATIVE REGULATION

GREEN.............................................................

NEW CASE DECISION INCLUDING WCAB PANEL DECISIONS

PURPLE……………............................................... UPDATE: 2020

 

 

TABLE OF CONTENTS

AWW AND PD RATES

 

New PD Rates 01/01/2013

27

Current PD Min/Max

27

 

 

27

New PD Min/Max

 

 

 

27

Illustrations

 

 

 

28

BUMP UP/DOWN GONE

 

 

 

8

Lab C 4658(d)(2) eliminated

CONSULTING REPORTS

Changes to Lab C 4605

Limitations

QME or PTP to Address

Valdez

INDEPENDENT BILL REVIEW (IBR) AND IBRO

The 2nd review

Timing of Request

Process Explained

Timing

Fees

Effect of Determination

Limited Appeal

Remand

Projected Time Frames

INDEPENDENT MEDICAL REVIEW (IMR)

Effective dates

IMR Process Explained

Role of IMRO and Process

Summary of Employer Duties

Administrative Penalties

INDEPENENT MEDICAL REVIEW ORGANIZATIONS (IMRO)

Role

Process

Effect of IMRO Determination

Limited Grounds for Appeal

New AD Penalties for Delay

Costs

29

87

88

88

87, 92-93

83-84

84

83-85

82-86

84-85

86

86

86

86-87

61-63

72076

76-78

74

75

76

76-78

77

77

77-79

79

9

LIENS

Filing Fee

Lien Activation Fee

Proof of Payment

When Payments Must be Made?

Dismissal by Operation of Law

Entitlement to Reimbursement

Health Care Providers

Statute of Limitations

Limitations on Filing

Limitations on Assignments

MEDICAL FEE SCHEDULE

Changes

RBRVS

Home Health Care

Attorney Fees

MEDICAL-LEGAL

Interpreters

Vocational Experts

Explanation of Review (EOR)

Copy Services

MEDICAL PROVIDER NETWORKS (MPN)

Changes

Medical Access Assistants

ADR Power to Investigate

MPN Plan Approval

Contesting MPN Validity

Schedule of Penalties to $5,000

Valdez

95-96

96-97

97

96

97

97

96

101

102

101

106

106

107

107

103-104

88-92

89

89

89-90

69

71-7

71

90

92-94

10

Notice Poster 3550 and Changes

MEDICAL TREATMENT

Lab C 4600

Chiropractors

Interpreting Services

Home Health Care

Drug Formulary

Service Dogs

MEDICAL TREATMENT PAYMENT

Lab C 4603.2

Out-of-Network Treatment

Consequences

Provider Requests

Time Changes

Use of EOR

2nd Review Process Initiates

Explanation of Review (EOR)

MISCELLANEOUS

Expedited Hearing

Evidence Allowed from Vocational Experts

Attorney Fees

Death Benefits/Burial

Removal by WCAB

Interpreters

Financial Interest

PERMANENT DISABILITY

Lab C4660

Lab C 4660.1

2005 PDRS

89,92

57

57

59

59

61-62

57

80-83

92-95

81

80

81-82

82-83

81

82-83

110

110

110

110

111

111

111

24-25

21

11

New 1.4 standard Adjustment

New Schedules: Guides for PD and Age and Occupation Adjustment

FEC is Gone

Guzman II: “Quick Refresh”

Ogilvie III: “Quick Refresh”

Limits “Add On” for Psyche, Sleep and Sexual Dysfunction

Guzman II Still Good

Rating Psychiatric Injuries

Examples of PD Changes Under SB 863

PD PAYMENTS: TIMING

Lab C 4650(b)(1) and (2)

No PD Advances Prior to Award if Conditions Met

Offer at 85% wages and compensation

Employed @ 100% wages and compensation

“Trigger Points for Offers”

QME PROCESS

UR decisions

Diagnosis and Treatment

Supplemental Report for Corrections

UR Disputes to IMR/IMRO

Diagnosis and Treatment Disputes to IMR/IMRO

2nd Opinion Surgical Process Eliminated

“AME Dance Disappears”

Lab C 4060 Requests

Lab C 4061/4062

Panel Striking

Use of AME

Unrepresented Workers

Limitation on Offices Repealed

Communications with QME

21,24

22

21

22

22-23

24-25

25

25-26

25

26-27

55-56

56

56

56

56

44

44

37-38

36

37

44

44-45

45

45

47-51

51-53

45

45

12

NON-REPREENTED

RETURN TO WORK AND SUPPLEMENTAL FUND

120 million funds

Outside of the WCAB

SJDB

Lab C 4658.5 -new

New Voucher

When Voucher Obligation Arises

Mandatory Form

New Amount to $6,000

$500 Advance

Computer Equipment

Statute of Limitations

No Settlement/Commutation

Schools

UTILIZATION REVIEW

Change

WHAT TAKES PLACE WHEN?

SPECIAL SUPPLEMENT: TRACKING BODY PARTS PRACTICE TIPS 2000

PRIMER ON OBJECTIONS TO PQME REPORTS: HANDLING PANEL STRIKES: REPRESENTED WHEN SHOULD I USE AN AME?

55

108

109

29

29

29

30

33

34

34-35

35

35

35

61-65

16

6-8

8-10

37-43

49-51

51-54

13

WHAT TAKES EFFECT WHEN?

SUBJECT

PROVISION

INJURIES ON OR

01/01/2013

01/01/2014

 

 

 

AFTER 01/01/2013

REGARDLESS

OF

 

 

 

 

 

DATE OF INJURY

 

 

PD

1.4 multiplier

X

 

 

 

 

No FEC adjustment

X

 

 

 

 

Limits on psyche, sleep and sexual

X

 

 

 

 

 

dysfunction add on

 

 

 

 

PD RATES

Minimum: to 160 per week

X

 

 

 

 

Maximum: to 270 (55%-69%)

X

 

 

 

 

Maximum: to 290 (70%-99%)

X

 

 

X (DOI)

 

Maximum: to 290 (1%-99%)

 

 

 

SJDB

Statute of Limitations: 2yr/5yr

X

Xii

 

 

 

New SJDB to $6,000

X

 

 

 

 

Advance of $500

X

 

 

 

 

Computer Equipment

X

 

 

 

 

New form re: work capacities

X

 

 

 

 

No settlement of SJDB

X

 

 

 

 

No commutation of SJDB

X

 

 

 

QME PROCESS

Elimination of “AME” Dance

 

X

 

 

 

2nd Opinion Surgery process gone

 

X

 

 

 

Relaxation of communications

 

X

 

 

IMR and IMRO

Medical Necessity Disputes Taken

X

 

 

 

 

 

Away from QME and to IMR

Until 7/1/2013 –

 

 

 

 

 

 

effective for all

 

 

 

 

 

 

decisions after

 

 

 

14

 

 

 

that

date,

 

 

 

 

 

 

 

regardless of DOI

 

 

 

 

 

 

 

DOI 01/01/2013

01/01/2013

01/01/2014

 

TREATMENT BILLS

Explanation of Review

 

 

X

 

 

 

SECOND REVIEW

Request for 2nd Review

 

 

X

 

 

 

EOR

IBR and IBRO process

 

 

X

 

 

 

IBR AND IBRO

Deemed Final

 

 

X

 

 

 

MPN

Physicians Included with Written

 

 

 

X

 

 

 

 

Acknowledgment

 

 

 

X

 

 

 

MPN Must Place Roster of

 

 

 

 

 

 

 

Physicians on Web Site

 

 

 

X

 

 

 

All Approved MPN’s posted by AD

 

 

 

 

 

 

Medical Access Assistants with

 

 

 

X

 

 

 

 

available hours

 

 

X

 

 

 

 

AD Powers to Investigate

 

 

 

 

 

 

Plan Approval 4 years

 

 

X

 

 

 

 

Contesting MPN being “Validly

 

 

X

 

 

 

 

 

Constituted”

 

 

X

 

 

 

 

Schedule of Penalties

 

 

 

 

 

 

Notice Poster – Limitations under

 

 

X

 

 

 

 

 

Valdez

 

 

 

 

 

 

LIENS

$150 Filing Fee Liens filed after:

 

 

X

 

 

 

 

With Proof of Paid Filing Fee

 

 

X

 

 

 

 

$100 Activation Fee for all existing

 

 

X

X

 

 

 

 

and prior liens

 

 

Paid at time of

This

the

drop

 

 

 

 

 

filing of DOR, at

date

time

for

 

 

 

 

 

Lien Conference if

payment

of

 

 

 

 

 

not filing DOR, but

activation fee or

 

 

 

 

 

no later than

liens

 

are

 

Statute of Limitations – 3 years

 

 

01/01/2014

dismissed

 

 

 

 

X

 

 

 

 

 

from date of services provided

 

 

 

 

 

 

 

 

 

DOI: 01/01/2013

01/01/2013

01/01/2014

 

 

 

 

 

 

07/01/2013

 

 

 

 

 

 

 

 

 

 

 

15

 

Statute of Limitations – 18 months

 

 

X

 

 

 

 

from date of services provided

 

 

 

 

 

Restriction on Assignments

 

 

 

 

 

MEDICAL LEGAL

Qualified interpreters – exams

 

 

X

 

 

VOCATIONAL EXPERTS

2nd Review and IBR added

 

 

X

 

 

FEE SCHEDULES:

IBR Covers Medical-Legal Expenses

 

 

X

 

 

COPY SERVICES’

Fee

Schedule

for

Vocational

 

 

X

 

 

VOC EXPERTS;

 

Expertsiii

 

 

 

 

X

 

 

INTERPRETERS:

Fee Schedule for Copy Services

 

 

 

 

 

Fee

Schedule

for

Interpreters

 

 

X

 

 

 

 

During Treatment

 

 

 

 

 

 

MEDICAL TREATMENT

For treatment after 01/01/2014

 

 

 

 

X

UNDER LAB C 4600:

 

based upon RBRVS

 

 

 

On or

before

 

FEE SCHEDULES:

Home Health Care:

Adopt Fee

 

 

 

HOME HEALTH CARE

 

Schedule

 

 

 

 

07/01/2013

 

 

Home Health Care: Limitationsand

 

 

X

 

 

 

 

Prescriptions For: (14 days)

 

 

X

 

 

 

Limitations on “Chiropractic Visits”

 

 

 

 

 

Interpreters During Treatment

 

 

X

 

 

UTILIZATION REVIEW

Not

Needed

if

Disputing

 

 

X

 

 

 

 

Injury/Body part

 

 

 

 

X

 

 

 

Effective for 12 months

X (and on or after

 

 

 

All Disputes over UR Decisions go

 

 

 

 

 

to IMR and not Through QME

07/01/2013

 

 

 

 

 

 

Process

 

 

regardless

of

 

 

 

 

UR decisions now tied to MTUS

DOI)

 

X

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

DOI: 01/01/2013

01/01/2013

 

01/01/2014

 

Approval for Retroactive Decisions

 

 

X

 

 

 

 

No Longer Need to be

 

 

 

 

 

 

 

Communicated

 

 

X

 

X

 

 

 

Retrospective UR deferred and

 

 

 

 

 

Timing of Resumption

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

16

 

 

 

 

 

And for

all

UR

 

 

 

 

 

 

 

decisions

on

or

 

 

 

 

 

 

 

after 07/01/2013

 

 

 

 

 

 

 

regardless of DOI

 

 

 

 

 

 

 

 

 

 

CONSULTING REPORTS

Limitations on LC 4605 reports

 

 

 

X

 

PD ADVANCES

No PD advances prior to an Award

 

 

 

X

 

4650(b)(2)

 

if all conditions met

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

DEATH BENEFITS

Burial to $10,000

 

X

 

 

 

 

MISCELLEANOUS

 

 

 

 

 

 

 

 

 

120 MIL FUNDS

Return to Work Program and the

 

 

 

X

 

 

 

120 million Fund under 139.48

 

 

 

 

 

EXPEDITED HEARING

MPN Issues added To Expedited

 

 

 

X

 

 

 

Hearing

 

 

 

 

 

 

 

INTERPRETERS

Responsibility of Interpreters not

 

 

 

X

 

 

 

to Advocate

 

 

 

 

 

 

EVIDENCE ALLOWED

Reports

of Vocational

Experts

 

 

 

X

 

 

 

permitted and live testimony

 

 

 

 

 

 

 

 

 

 

DOI: 01/01/2013

01/01/2013

01/01//2014

ATTORNEY FEES

Attorney

Fees: filing Application

 

 

 

X

 

 

 

for Non-represented Workers

 

 

 

 

 

 

 

eliminated

 

 

 

 

X

 

 

Attorney Fees Permitted for Home

 

 

 

 

 

 

Health Care Issues

 

 

 

 

 

 

REMOVAL

WCAB Power Expands to Remove

 

 

 

X

 

 

 

Non-Attorneys

 

 

 

 

 

 

FINANCIAL

 

 

 

 

 

 

 

X

 

17

More Limitations on Financial Interests

SUMMARY OF SB 863

And the New AD Regulations

Please consider this Micro Survival Guide as a changing but “one stop” reference source. As the AD promulgates new and additional regulations, including changes to existing regulations, we will be updating our Guide accordingly. Also, we intend to provide comment and analysis upon further development, including new case decisions

LAB

SUBJECT

ADDITIONS/CHANGESiv/ + REGULATIONS + DEVELOPING CASE LAW +NEW FOR 2020

CODE

 

 

 

4660

PERMANENT

Lab C 4660 is left intact for injuries prior to 01/01/2013

4660.1

DISABILITY

For injuries on or after 01/01/2013, new Lab C 4660.1 applies

 

 

 

 

 

 

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The 2005 PDRS does not apply to injuries on and after 01/01/2013. Instead the 2005 PDRS is effectively being replaced by two schedules; the first being the “The Schedule for Rating Permanent Disabilities Pursuant to the AMA Guides” and the other being the “Schedule of Age and Occupational Modifiers.” Therefore, when reference is made to the “Schedule” or the “PDRS,” it now means both the AMA Guides and the Schedule of Age and Occupational Modifiersv

Under current Lab C 4660, the FEC ranking is established within ratios of earning losses by body parts across eight rankings ranging in an FEC adjustment factors from 10% to a maximum of 40%. While the FEC is technically “gone” for injuries on or after 01/01/2013, it is being replaced by a standard 1.40 upward adjustment factor against the impairment standard FOR ALL BODY PARTS. So, before going to the new schedule (AMA Guides + Schedule of Age and Occupational Modifiers) you will multiply the Guides based impairment by 1.40 then adjust for age and occupation in order to determine the percentage of PD

The new “Schedule for Rating Permanent Disabilities Pursuant to the AMA Guides” and the “Schedule of Age and Occupational Modifiers” are both considered as prima facie evidence and therefore rebuttable. [NOTE FROM COREY]: Does this mean that Ogilvie is still alive and well? The answer here is “yes” since it can still be argued that if both schedules are rebuttable and since Amaras/Guzman II is still very much in “play” then Ogilvie, subject to further case law limitations, can be used to support the argument that an injured worker will sustain a far greater level of PD because of wage loss as he or she is unable to compete in the open labor market. And that loss is greater than the PD afforded under the Schedule because this injured worker will suffer a much higher PD “loss” resulting from the uniqueness of his or her occupation being impacted on his or her individual future earning capacity]. (See below for further discussion on Ogilvie, Guzman II and Dahl)

FEC is technically eliminated but Ogilvie and Dahl remain relevant

Quick Refresh: Guzman II: 08/19/2010: (Milpitas Unified School District v. WCAB (Guzman) 187 Cal.

App 4th 808, 75 CCC 837: Court holds that the AMA Guides 5th should be used as “intended” by its authors and this means taking into account the whole book, including instructions and the use of “clinical judgment.” This permits a physician to go beyond the chapters, tables and strict protocols of the Guides. To support a case for “rebuttal” the physician must therefore explain why departure from the impairment percentages is necessary and how it was arrived at. The California Supreme Court denied review on 11/10/2010, so for now this 6th DCA decision is good law until another district decides otherwise

Quick Refresh: Ogilvie III: Decided on 07/30/2011 by the 1st DCA: Ogilvie v. WCAB: (197 Cal App 4th

1262); 76 CCC 624: Here, the Court sets forth three (3) distinctly different methods by which to rebut the

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FEC component of the PDRS: (1) Proving the existence of a factual error in the application of a formula

or in the preparation of the PDRS: (2) The injury impairs applicant’s rehabilitation and; (3) Nature or severity of the injury was not captured within sampling of data used to produce the FEC. The California Supreme Court has granted review but has neither decertified nor vacated the lower court’s opinion, so it stands, for now. So, now this holding has essentially reprised the old LeBoeuf approach, where evidence from a vocational expert can be used to support a finding that an injured worker is precluded from working in the open labor market and is therefore factually, vocationally, permanently and totally disabled. The burden of rebutting the PDRS was made more difficult for the applicant in the case decision of Dahl v. Contra Costa County v WCAB (2015) 240 Cal. App. 4th 746, 80 CCC 1119). Here, the applicant used the 2nd method under Ogilvie, i.e., rehabilitation. But the missing component was the vocational expert’s opinion did not specifically state that applicant was not amenable to rehabilitation, but instead the method for determining PD produced a higher rating. This was deemed insufficient. The court ruled that the PDRS may not be rebutted simply by offering an alternative calculation of the diminished earning capacity, but rather the applicant was not amendable to vocational rehabilitation—they did not rule on whether the inability had to be complete or not. NOTE FROM COREY: There seems to be a discernible uptick in the use of vocational experts, especially in chronic pain cases, or cases where there are multiple surgeries and claims where there are co-morbid conditions. The use of vocational experts appears to be gaining some traction. This opens a new door and therefore requires some real skill and attention. It becomes critical to secure a good defense vocational expert, who can be expected to critique and rebut the applicant’s expert. It also gets you deep into the subject of apportionment since some applicant vocational experts are ignoring apportionment in their own analysis and opinion. Also, defense attorneys may need to challenge these experts by (1) deposition; (2) with a rebuttal from the defense expert; (3) in applicant’s deposition, exploring the time frames, the directions provided for testing and the like; and (4) cross examination at trial. Also, watch out for the applicant attorney, who designates a vocational expert, secures a report from that expert and then quickly files a Declaration of Readiness to Proceed. WCAB Panel Decisions: Wright v. Michael’s, Gallagher Bassett, 2015 Cal. Wrk. Comp. P.D. Lexis 455.vi Applicant underwent two spinal surgeries, after which she was found to be incontinent. The applicant’s vocational rehabilitation expert found she had a total loss of earning capacity based upon a synergistic effect of the functional limitations set forth in the medical reports. She was also taking numerous types of medications and this was one of the factors justifying finding her claim to be 100% PD. Stephanie Duncan v. EDD/SCIF 2016 Cal. Wrk. Comp. P.D. Lexis 612. Applicant contended she was 100% as she was non-feasible for rehabilitation because of her medications. The WCAB panel ordered a remand of the matter back for further development of the record and specifically for the PTP to determine whether applicant’s ability to participate in vocational rehabilitation was related to the continued use of the pain medication, Tramadol. Here, the record was deemed insufficiently developed. In a somewhat attenuated approach to LeBoeuf and apportionment, the WCAB issued a panel decision in Target Corporation, PSI Admin by Sedgwick v WCAB 81 Cal Comp Case 1192, 2016 Cal. Wrk. Comp. LEXIS 131. Here, the WCJ found the applicant 100% PD based upon applicant’s vocational non-feasibility and

20

because the PD was not based upon the AMA Guides, the WCAB panel determined that considerations of apportionment should follow a different path – the apportionment analysis should be a “separate, vocational one and should not rely exclusively on each medical cause of impairment criteria under the AMA Guides –that the focus should be on the applicant’s “capabilities.” [This presents a whole new take on Escobedo] This is also a very ripe area for the scrutiny of applicant’s vocational expert report

Adds adjustment factor of 1.4 against the WPI determined under the AMA Guides, 5th, before going to the Schedule of Age and Occupational Modifiers. Therefore, every impairment standard will be upwardly adjusted by a constant factor of 40%, before further adjustments for occupation and age are made, in order to determine the final PD rating

Under the 2005 PDRS, the FEC had been determined by an assigned FEC rank across 8 levels, with a range of between a 10% and maximum 40% adjustment. Under the revisions of SB 863, the body parts which will be the most upwardly impacted are fingers, elbows, knees, ankles, feet and toes

LIMITING COMPENSABLE CONSEQUENCES FOR PSYCHE, SLEEP AND SEXUAL DYSFUNCTION: LAB C

4660.1 (c)(1): No increases in impairment ratings for the compensable consequences of a physical

injury resulting in psyche, sleep or sexual dysfunction, or any combination thereof: Exceptions are being a victim of a violent act or direct exposure to a significant violent act, a catastrophic injury which includes, but is not limited to things such as loss of a limb, paralysis, a severe burn or severe head injury. (NOTE: This should hopefully reduce what now appears to be a standard “routine” of many physicians, who report compensable consequences. NOTE FROM COREY: I think we will be seeing more CT claims for “straight psychiatric” injuries in order to circumvent this new PD limitation. Or, we may expect some PTP’s will simply shift from psyche, sleep and sexual dysfunction to GERD, IBS and hypertension as the new “add owns” du jour. FURTHER NOTE FROM COREY: What we are starting to see is a practice where applicants are not formally alleging psychiatric stress but rather non-psychiatric stress, presented in the form of hypertension, Irritable Bowel Syndrome (“IBS”) GERD, migraine headaches, chest pain, cardiac issues, heart problems or some other manifestation of stress beyond a formal DSM IV-TR diagnosable mental disorder... This raises the “McCoy” issue. In McCoy, applicant made a psychiatric claim against which defendant raised the “good faith personnel actions under Rolda. Upon prevailing on defending the psyche injury, the court also found that the migraine headaches were also defendable since they were caused by the disputed psyche injury. But, subsequent WCAB panel decisions (see below) have narrowed the target for the defense. In effect, we may be evolving to a point where it becomes much more difficult to tie in “physical manifestations” or “compensable consequential physical injuries” to a Rolda defense. Instead, we could be looking at a “two tracks” system, one for actual psyche claims and the other for non- psychiatric stress claims

21

City of Los Angeles v. WCAB (2016) 81 CCC 611. (Writ denied). Firefighter filed CT claim, among other things suffered prostate cancer. He also suffered resulting sexual dysfunction upon removal of his prostate in the treatment of his industrial prostate cancer, resulting in nerve damage. WCAB held that he was not precluded from having compensable PD because the sexual dysfunction was caused by the treatment for the industrial cancer. This was deemed a “direct injury.” WCAB Panel Decision: Larsen v. Securitas Security Services, PSI. 2016 Cal. Wrk. Comp. P.D... Lexis 237. A security guard was struck by a car while walking through a parking lot. The WCAB held that the statutory definition of “violent act” is not limited to criminal or quasi criminal activity but would also include “other acts” which are characterized by either strong force, extreme or intense force or are vehemently or passionately threatening. WCAB En Banc Decision: Wilson v. State of California ADJ1011693 (07/15/2019). One of the exceptions to Lab C 4660.1[c] is for “catastrophic injuries.” Here, applicant was a state firefighter who sustained serious injuries from exposure to the fires across multiple body systems, which progressed over time. The WCAB determined that the term “catastrophic” does not necessarily relate to the mechanics of injury nor at a specific point in time following injury. Also, numerous factors are involved in determining whether the injury is catastrophic. WCAB Panel Decision: Wang v. So. Cal Edison, 2015 Cal Wrk. Comp. P.D. Lexis 511. Good faith personnel action defense would not be applicable since the “stress” being alleged was physical stress to the heart and cardiovascular system and therefore not part of the proof required for regular psyche claims. Valdes v City of Torrance 2019 Cal. Wrk. Comp. P.D. Lexis 456. Applicant injured left shoulder, neck and claimed psyche injury. Applicant received an award of 56% and the WCJ held that 4660.1[c] did not bar recovery for the psyche PD as the psyche injury was directly caused by the injury and not a secondary compensable consequence of the orthopedic injury.

Nothing herein is intended to overrule Guzman II [NOTE: If anything, I fully expect that “chapter and table shopping” within the Guides will become the near norm and that we will likely face expansive discussions on why the tables or specific applications of the Guides are not as accurate as “hybrid” and “analogy based” ratings resulting from creative combinations and mixtures using different parts of the Guides, all tied together with the connective tissue being the ADL’s]. UPDATED NOTE FROM COREY: Over the past 24 months, I have generally seen a reluctance on the part of most PQME’s to venture into the Almaraz Guzman II universe, but it does occur. I see it more frequently in finger, hand, wrist and upper extremities cases than any other

WHAT ABOUT PSYCHIATRIC INJURIES? A careful read here will demonstrate that since the 2005 PDRS is technically inapplicable, then seemingly there exists no actual method by which to determine impairment for compensable psychiatric injuries, whether secondary to a physical injury or provable independently. [NOTE FROM COREY]: In the earlier version, I had envisioned challenges to the GAF since it was never really intended to assess impairment. Instead it was used as a clinical tool in order to assess the capability of patients being treated within a mental health facility. It is found within the DSM-IV-TR. It is a very subjective scale which weights either “symptom severity” or “function” along a numeric scale.

22