The Practical Effects and Unintended Consequences of Sierra Pacific

Saturday, October 21, 2006 | 0

By York McGavin

All of us who worked on Sierra Pacific gave it our best shot.

Although I am somewhat disturbed by the fact the Supreme Court has declined to review and refused to depublish Sierra Pacific, I do see some light at the end of the tunnel.

First of all, Sierra Pacific is indeed binding on all workers' compensation judges, as well as the Workers' Compensation Appeals Board. However, there is nothing preventing a different district court of appeal (DCA) from reaching a contrary result on the same issue. Thus, whenever I encounter a case anywhere other than the 3rd DCA, with a defendant relying upon Sierra Pacific, I plan on taking it up.

It could get very interesting if a different DCA opined to the contrary of the 3rd DCA in Sierra Pacific.

In addition, there are indeed some unintended consequences. First of all, I would not be surprised to see health care provider lien claimants seeking reimbursement from an injured worker when the WCJ and WCAB have determined that the treatment provided long ago is deemed unreasonable per American College of Occupational and Environmental Medicine (ACOEM) treatment guidelines today.

This is a distinctly different issue than was presented in Bell v. Samaritan Clinic, 41 CCC 415 (1976). In Bell, the clinic attempted to collect the financial difference between official medical fee schedule (OMFS) and the clinic's usual and customary. The DCA specifically found this impermissible.

Interestingly enough, the Bell court specifically addressed Labor Code 4605: "Nothing contained in this chapter shall limit the right of the employee to provide, at his own expense, a consulting physician or any attending physicians whom he desires" (underline emphasis added).

Thus, I can easily envision some very dissatisfied health care provider lien claimants who will now go after the injured worker for treatment provided that is deemed to be unreasonable. There is a world of difference between unreasonable charges and unreasonable treatment, particularly when LC 4605 is considered.

Interestingly enough, I can also envision a situation where the health care provider refuses to submit its lien to the WCAB --- thus depriving the WCAB of jurisdiction over that lien claimant --- and instead just sending the injured worker to a collection agency.

I also see another 'silver lining' in Sierra Pacific for those lien claimants who have already filed their liens --- ACOEM itself.

As we are all aware by now, ACOEM is focused on the acute and sub-acute stages of the injury --- and the only chapter addressing appropriate care for patients whose condition has become chronic is Chapter 6: "Pain, Suffering, and the Restoration of Function."

All other body part chapters found in Section II titled "Presenting Complaints" provide specific treatment algorithms for each body part --- during the acute and sub-acute stage of the injury.

Chapter 6, on the other hand, has no algorithm whatsoever. But, Chapter 6 does indeed scream out for a multi-disciplinary approach to aggressively treat the chronic injured worker. Hence, it should be easy to prove-up 'red-flag' indicators warranting the referral of the injured worker for an MRI, an NCV/EMG, a CT, or a plain-film radiograph (X-ray). If positive for pathology, the treatment for the chronic injury is warranted by Chapter 6 of ACOEM.

Last, by refusing to grant review and overturn Sierra Pacific, or in the alternative depublish it, the Ruvalcaba case I have before the WCAB, where reconsideration was granted but no opinion has issued, has new life.

Being as it is appropriate to apply ACOEM to treatment provided prior to when ACOEM was published, retroactive application of LC 5402(c) to treatment furnished prior to issuance of the AOE/COE denial is just as fair.

By York McGavin. He can be contacted at ymcgavin@socal.rr.com.

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