Is Sierra Pacific Correct? Opinion on Flawed Rationale

Saturday, July 15, 2006 | 0

The following was adapted from a post in the California Work Comp Professional Forums and provides an alternative view point to the recently issued case of Sierra Pacific v. WCAB; Placerville Chiropractic and Sports Clinic (Corey Chatham); (2006)(writ granted) 71 CCC ____, Third Appellate District COA#: C050589.

Respectfully, the Justices erred in the outcome of Sierra Pacific, and this matter should be appealed either via a petition for rehearing, or an appeal to the Supremes.

The appellate court correctly noted, "It is true that in determining whether medical treatment is appropriate, the determination must be made based on the standards in effect when the treatment was provided."

However, after this correct observation, the Justices took a wrong fork in the road in opining: "treatment that the employer was obligated to pay for when it was provided is later determined not to be the employer's responsibility, so either the employee has to pay or the medical provider is out of luck."

The Justices incorrectly focused on who has to pay, rather than focusing on "the determination must be made based on the standards in effect when the treatment was provided."

As we know, LC 3751(b) prohibits a medical provider from billing a injured employee with an admitted injury claim.

Accordingly, the focus should have solely been whether the treatment furnished in 2004 was ACOEM consistent --- as ACOEM was the standard of reasonableness as of 1/1/04. The admission by the Justices that "It is true that in determining whether medical treatment is appropriate, the determination must be made based on the standards in effect when the treatment was provided" clearly indicates that ACOEM is inapplicable for treatment furnished prior to 1/1/04.

Simply put, the determination of whether treatment furnished Corey Chatham in 2003 should have been "based on the standards in effect when the treatment was provided," per the IMC Treatment Guidelines --- whereas treatment furnished Corey Chatham in 2004 should have been "based on the standards in effect when the treatment was provided," per the ACOEM Guidelines.

LC 3751 was enacted in 1937 and amended in 1990. Although LC 3751(b) was not specifically cited, the case of Bell v. Samaritan Medical Clinic, 41 CCC 415 (1976) is on point with the prohibition of billing injured employees for treatment on an accepted injury claim.

By framing the dispute as, "the issue is who pays for the treatment" the Justices impermissibly assumed that if the payor is not responsible for unreasonable treatment, "either the employee has to pay or the medical provider is out of luck."

This is incorrect. The employer is required to pay for reasonable treatment furnished in 2003, "based on the standards in effect when the treatment was provided" (the IMC Guidelines), or the employer is relieved from the responsibility of paying for unreasonable treatment furnished in 2004, "based on the standards in effect when the treatment was provided" (the ACOEM Guidelines).

The bottom line is that this incorrect outcome is not supported by the correctly stated appellate legal rationale.

Another error is the determination by the Sierra Pacific court that the language in Green addressing LC 5814(h) is nothing more than mere "dicta." Pure poppycock. The Green court relied heavily on LC 5814(h) in the outcome, and LC 5814(h) was the lynchpin for retroactive application:

"S.B. 899 was enacted long after the injuries in question. If this is all we had, we very well might conclude uniform prospective application was the rule. However, the use of "prospectively" in Section 47 is not dispositive when other language is considered. The term is almost immediately followed by the phrase "unless otherwise specified". New section 5814(h) is precisely a provision that "otherwise specifies," and thus is an exception to the prospective application of the new law." (Green, 70 CCC 294, 304)

WILL THE OUTCOME HAVE ADVERSE UNINTENDED CONSEQUENCES?

This decision creates more transactional instability in a system that already is seeing participating providers fleeing left and right. If anything, as a result of the Sierra Pacific outcome, treating physicians will be even more reluctant to enter the comp arena --- and we will see an exacerbation of the 'access-to-care' problem.

Hence, the decision in Sierra Pacific will adversely impact the willingness of physicians to provide treatment to an injured worker. The changes brought about by SB 899, combined with the transactional instability created by the decision in Sierra Pacific, will dissuade physicians from entering the comp arena, thus resulting in more impetus in the pendulum of change swinging back to a middle ground, sooner rather than later.

-------------------

The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management.