Fundamentals of Work Comp Law and SB 899 - Part 2

Saturday, February 26, 2005 | 0

Part 2

The following article is the second in a series for attorneys and other professionals just getting started in workers' compensation. Authors Richard Owen and Harold Greene have graciously permitted the republication of their outline from their annual class on workers' compensation they give to the CA State Bar Section Education Institute, updated to reflect the changes in the law from the recent reforms. Though not in narrative format, workcompcentral editors felt the material to be of excellent educational quality in present form and are proud to publish it here.

IV. Benefits:

A. Average Weekly Earnings: The Basis for Benefits. See Labor Code sections 4451-4459. Please note: Major changes in these sections made effective 1/1/03; Read them! (see pages 19-20, infra .) See also Grossmont Hosp. V. WCAB, 59 Cal.App.4th 1348, 62 CCC 1649, 25 CWCR 117 (1997)

B. Temporary Disability [TD] (medically based):

1. Temporary total (Labor Code sections 4453(a), 4653): 2/3 of average weekly earnings subject to certain minimums and maximums; AB749 removed "actual wages" as a basis for minimum earners. For injuries on or after 1/1/2003, all TD has a minimum amount payable.

2. Temporary partial or wage loss basis (Labor Code section 4654): 2/3 of weekly wage loss during period of partial disability:

3. Disability payments: Timing and mode (Labor Code section 4650 et seq.) SB 899 amended Labor Code section 4650 to require the employer to commence paying PD at conclusion of TD payments based upon reasonable estimate of PD even if extent of PD cannot be determined at that time; PD payments must continue until the reasonable estimate has been paid. See schedule on pages 19-20, infra , for a summary of TD benefits:

4. New Cap on TD: SB 899 added a 104 week limit on TD payments within a two year period for all injuries occurring after 4/19/2004, except for nine specified serious injury types: Hepatitis B, Hepatitis C, amputations, severe burns, HIV, high-velocity eye injuries, chemical burns to the eyes, pulmonary fibrosis, and chronic lung disease. Labor Code section 4656(c)(1).

5. Special "in lieu" benefits for certain peace officer/firefighter class employees: Labor Code sections 4800 - 4856, inclusive. Like presumptions mentioned earlier (page 2, section B, 5, supra), review these sections whenever you have a peace officer/firefighter class injured worker to see if the injured worker is entitled to special benefits "in lieu" of normal TD; generally these benefits are better for the injured worker than regular TD.

C. Medical care (Labor Code section 4600(a): "Medical, surgical, chiropractic, and hospital treatment . . . which is reasonably required to cure or relieve the injured worker from the effects of his or her injury shall be provided by the employer." Modified by SB 899. SB 899 added Labor Code 4600(b): "As used in this section and not withstanding any other provision of law, medical treatment that is reasonably required to cure or relieve the injured worker from the effects of his or her injury means treatment that is based upon the guidelines adopted by the administrative director pursuant to Section 5307.27 or, prior to the adoption of those guidelines, the updated American College of Occupational and Environmental Medicines Occupational Medicine Practice Guidelines. " (emphasis added)

1. Employer has affirmative duty to provide medical care. "When the injured employee notifies the employer of the injury or files a claim for workers' compensation with the employer, the employer shall arrange an initial medical evaluation and begin treatment as required by Section 4600." Labor Code section 4616.3(a).

2. Unless the employer or the employers insurance carrier has established a medical provider network as provided for in Section 4616 (modified by SB 899), the employer only has medical control for first 30 days after the injury is reported and the injured worker may thereafter be treated by a physician or facility of his or her own choice within a reasonable geographical area.

3. Medical Provider Networks (MPN):

a. "On or after January 1, 2005, an insurer or employer may establish or modify a medical provider network for the provision of medical treatment to injured employees." Labor Code section 4616(a)(1). "Medical treatment for injuries shall be readily available at all reasonable times to all employees. To the extent feasible, all medical for injuries shall be readily accessible to all employees. Labor Code section 4616(a)(2). All treatment provided shall be provided in accordance with the medical treatment utilization schedule established pursuant to Section 5307.27 or the American College of Occupational Medicines Occupational Medicine Practice Guidelines, as appropriate." Labor Code section 4616(e).

b. "The employer shall notify the employee of his or her right to be treated by a physician of his or her choice after his first visit from the medical provider network established pursuant to this article,..." Labor Code section 4616.3(b)

c. "If an injured employee disputes either the diagnosis or the treatment prescribed by the treating physician, the employee may seek the opinion of another physician in the medical provider network. If the injured employee disputes the diagnosis or treatment prescribed by the second physician, the employee may seek the opinion of a third physician in the medical provider network." Labor Code section 4616(c).

d. Independent Medical Review (IMR): "If, after the third physicians opinion, the treatment or diagnostic service remains disputed, the injured employee may request independent medical review regarding the disputed treatment or diagnostic service still in dispute after the third physicians opinion in accordance with Section 4616.3." Labor Code section 4616.4(b). "Applications for independent medical review shall be submitted to the administrative director" who shall assign the independent medical reviewer. Labor Code section 4616.4(c). "Upon receipt of information and documents related to the application for independent medical review, the independent medical reviewer shall conduct a physical examination of the injured employee at the employees discretion." The IMR may order any necessary diagnostic tests. The IMR "shall determine whether the disputed health care service was consistent with Section 5307.27 or the American College of Occupational and Environmental Medicines Occupational Medicine Practice Guidelines based on the specific medical needs of the injured employee." Labor Code section 4616.4(e). The IMR shall issue a written report, using laypersons terms to the maximum extent possible, to the administrative director within 30 days of the examination. Labor Code section 4616(f). If the IMR finds the disputed treatment or diagnostic service to be consistent with ACOEM, the injured employee may seek that treatment from a physician of the employees choice from within or outside of the MPN at the employers expense. Labor Code section 4616.4(i). "No additional examinations shall be ordered by the appeals board and no other reports shall be admissible to resolve any controversy arising out of this article." Labor Code section 4616.6

e. Issues of transfer of care to a MPN and continuity of care are also covered in Labor Code section 4616.2 and Rules 9767.9 and 9767.10.

f. The administrative director has adopted emergency regulations implementing the independent medical review provisions. See Rules 9767.1 - 9769.14

4. Pre-designation of treating physician: SB 899 adds section 4600(d) which now controls and limits ones ability to pre-designate a treating physician and the treating physician must consent in writing to the predesignation.

5. Utilization Review:

a. The Administrative Director shall adopt by 12/1/2004 a medical treatment utilization schedule which shall be presumptively correct on the issue of extent and scope of medical treatment. SB 899 requires that the guidelines so adopted by the AD "shall reflect practices that are evidence and scientifically based, nationally recognized, and peer-reviewed. The guidelines shall be designed to assist providers by offering an analytical framework for the evaluation and treatment of injured workers, and shall constitute care in accordance with Section 4600 for all injured workers diagnosed with industrial conditions." Pending adoption of such schedule by the AD, the American College of Occupational and Environmental Medicine Occupational Medical Practice Guidelines (ACOEM) shall be presumptively correct. "The presumption is rebuttable and may be controverted by a preponderance of the scientific medical evidence establishing that a variance from the guidelines is reasonably required to cure or relieve the injured worker from the effects of his or her injury, in accordance with Section 4600. The presumption created is one affecting the burden of proof." Labor Code section 4604.5 (Amended by SB 899). Note: The Administrative Director has not yet adopted a medical treatment utilization schedule so use of ACOEM remains in effect.

b. Notwithstanding (a) above, an injured worker shall be entitled to no more than 24 chiropractic, 24 occupational therapy, and 24 physical therapy visits per industrial injury. Labor Code section 4604.5(d) (Amended by SB 899)

c. The presumption of correctness of the treating physician under Labor Code section 4062.9 is repealed. (SB 899)

d. The utilization review (UR) process is governed by section Labor Code section 4610. Every employer and/or its workers' compensation carrier shall establish a written utilization review procedure which shall be consistent with the ACOEM guidelines. Utilization review means "utilization review or utilization management functions that prospectively, retrospectively, or concurrently review and approve, modify, delay, or deny, based in whole or in part on medical necessity to cure or relieve, treatment recommendations by physicians . . . prior to , retrospectively, or concurrently with the provision of medical treatment services pursuant to Section 4600." Labor Code section 4610(a). It is beyond the scope of this course to review in detail the UR process; attendee are encouraged to read Labor Code section 4610 in total and review ACOEM. The DIR adopted new emergency regulations relating to UR effective 12/13/04. Those regulations are found in Rules 9792.6 - 9792.11.

e. The UR appeal process for unrepresented employees was clarified by the WCAB in Willette vs. AU Electric Corp (en banc) 2004, 68 CCC 1298 and Willette vs. AU Electric Corp (#2) (en banc) denial of recon.) 2004 69 CCC _____.

f. The UR time limits mandated by section 4610 et seq. are mandatory. If the employer or carrier is untimely, they lose the benefit of the process and any UR medical reports are inadmissible in any proceedings and cannot be sent to any subsequent physicians. If the UR time limits are exceeded, parties must use 4062.1/4062.2 tracks for dispute resolution. See Sandhagen vs. Cox & Cox Construction (en banc) 2004, 69 CCC 1452.

6. Second Opinion on Spinal Surgery: In 2003, SB 228 added Labor Code section 4062(b) providing the employer the right to object to a report of a treating physician recommending spinal surgery. If the employee is represented, the parties shall attempt to select a physician to resolve the dispute. If no agreement is reach, or if the employee is not represented, the administrative director shall randomly select an orthopedic surgeon or neurosurgeon to examine on an expedited basis the injured worker and prepare a second opinion report which shall be served on the parties within 45 days of the receipt to the treating doctor's original report. If the second opinion report does not recommend the surgery, the employer shall file a declaration of readiness to proceed within 14 days after service unless the parties agree that surgery is not required. If the injured worker proceeds with the surgery before the second opinion process is completed, the employer is not liable for the cost thereof not the TD resulting from the surgery. Labor Code section 4062(b); see Rules 9788.01-9788.91, effective 12/15/04.

The next article in this series will continue a review of benefits, what are available and how they are calculated.

Richard D. Owen is a Sr. Staff Counsel, Supervisor, with State Compensation Insurance Fund; he is the Attorney-in-Charge for Glendale Legal's Unit A, comprised of 16 litigation attorneys and 14 clerical support, and participates in training/educating attorneys and claims adjusters for SCIF in throughout California. He has been a certified workers' compensation law specialist since 1992 He can be reached at rdowen@scif.com. Harold L. Greene is an Attorney at Law with the offices of Greene and Weinberger in Simi Valley, CA, and has been a certified specialist in workers' compensation law since 1974. He can be reached at haroldlgreene@hotmail.com.

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