Summer Reading
Saturday, May 23, 2009 | 0
By Mullen & Filippi
Although summer does not technically start until mid-June, the upcoming Memorial Day weekend is widely viewed as the start of the summer season. One of our favorite summer activities is relaxing on warm days with something entertaining to read. With that in mind, this edition of the M&F Bulletin recommends, for your reading pleasure, a new Supreme Court decision and some revised regulations which go into effect this week. We also discuss pending cases which are likely to provide summer reading for the board.
Smith/Amar.
On May 11, 2009, the California Supreme Court issued its decision in this case explaining when an applicant's attorney can (and cannot) obtain fees from a defendant as a result of denial of medical treatment. The issue in the case was whether an applicant's attorney is entitled to attorney's fees under Labor Code section 4607 when the insurer denies requested medical treatment and the board ultimately finds that the applicant is entitled to the treatment. The court held that the applicant's attorney was not entitled to fees under this statute. The plain language of the statute limits its application to the situation where the defendant has unsuccessfully sought to terminate an award of medical treatment. The court pointed out that there is a significant difference between claiming the applicant should receive no more medical treatment, and claiming the applicant does not need specific treatment to cure or relieve the injury. Section 4607 is only applicable to the former situation.
As the court noted, applying this statute where the dispute is over specific treatment is contrary to the purpose of the utilization review process, which is intended to resolve treatment disputes expeditiously based on medical standards. The court observed that "holding out the prospect of attorney fees every time an employee successfully challenges a denial of a treatment request would likely transform the utilization review process . . . into a more expensive, adversarial and cumbersome process."
This case should not be viewed as holding that applicants' attorneys can no longer obtain fees for successfully challenging a carrier's denial of treatment. The court was quick to point out that there are other statutes, such as Labor Code section 5814.5, which permit an award of fees when benefits have been unreasonably delayed or refused. One basic lesson this decision teaches is that, when you are seeking a remedy based on a statute, the first thing you need to do is read the statute.
Changes to Rules and Regulations.
We next call your attention to some changes to Workers' Compensation rules and regulations now in effect. Revisions to the audit regulations went into effect May 20, 2009. While most simply clarify language and organization of the regulations, some are particularly notable. For example, as explained in the Division's explanatory comments, Section 10107.1(c)(3)(B), changes the way an audit subject's profile audit review performance rating is calculated by measuring the number of randomly selected claims in which temporary disability benefits were required, as opposed to claims in which payments were issued, thereby including consideration of claims where notices were required but illegally not provided. You can read the newly updated regulations online on the DWC website, at http://www.dir.ca.gov/DWC/DWCPropRegs/Audit_Regulations/Audit_regulations.htm. (You can copy and paste this link into your browser.)
The board has also announced that, as of May 19, 2009, you must use the new forms for requesting a QME panel. You can tell if you have the right form by looking for the notation "rev February 2009" in the bottom left corner. The announcement proclaims that QME panel requests made on outdated forms will neither be considered nor returned. As a general rule, it is a good idea to check the revision date on a form before you fill it out. Most current forms are available on the WCAB's website. Or, if you are really not sure if you have the right form, call your favorite attorney.
The Board's Summer Reading List.
As everyone is probably already aware (particularly if you read this Bulletin regularly), the WCAB granted reconsideration of its previous en banc opinions in the Almaraz/Guzman and Ogilvie cases, and is in the process of accepting supplemental briefs on the issues. Briefing in those cases is set to be completed this week. On April 10, 2009, the board also granted reconsideration in Weiner v. Ralphs Co., a case addressing whether the WCAB continues to have jurisdiction over vocational rehabilitation claims after the repeal of Labor Code 139.5 on January 1, 2009. On April 14, 2009, the board issued an order stating that the case has been assigned for en banc review. As in Almaraz/Guzman and Ogilvie, the board invited those interested to file amicus briefs on the jurisdictional issue. Those briefs were due by May 11, 2009. The parties now have until June 1, 2009 to respond.
We expect that the briefs filed in these controversial cases will provide interesting reading for the commissioners in the next few weeks. We also anticipate that the board's decisions will likely provide exciting reading for the rest of us when they are issued.
Benson Update. In previous Bulletins, we have reported on the Court of Appeal decision in the Benson case, and promised to provide updates as they occur. We can now report that the Supreme Court has denied review, and the Court of Appeal decision is final.
However, as previously reported, there are still two cases, Vilkitis and Forzetting, pending before the Second District Court of Appeal on the same issue. If the Second District disagrees with Benson and decides to uphold the Wilkinson rule, it will be up to the Supreme Court to resolve the dispute. The Vilkitis and Forzetting decisions are expected to be issued in June.
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The Mullen & Filippi Bulletin is reprinted with the permission of the law firm from its website.
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