Welcome to the Tour de Comp

Saturday, July 28, 2007 | 0

We thought it only timely to pay tribute to the Tour de France, which takes place this month, by taking a brief tour of the latest developments in our own corner of the world. On your marks, get set, read.

Just Like a Stick in the Spokes

This month's race got off to a rocky start with the appellate decision in Valerie Hawkins v. Amberwood Products/SCIF, a WCAB en banc decision (6 to 1) holding that the temporary disability limitation of Labor Code Section 4656(c)(1) limiting temporary disability to 104 weeks within a period of two years from the date of commencement of temporary disability payments begins from the date that the defendant issues payment of temporary disability and not from the date the liability for temporary disability begins.

In this case, SCIF paid temporary disability retroactively and argued that the two-year cap period began as of the earliest date covered by its retroactive payment. The WCJ disagreed, holding that the two-year cap period began as of the date on which SCIF actually issued its payment. The WCJ's decision was upheld on reconsideration.

The net effect of this decision is that, in many cases, defendants will now be liable for much more than 104 weeks' worth of TD payments, a result seemingly in conflict with the plain language of the law. And what about possible penalties for late payment of TD now being discussed by applicants' attorneys? Mon Dieu. Stay tuned for a possible SCIF appeal and further litigation.

False Start

The yellow jersey was again awarded to the applicants' bar in the Romero v. Costco Wholesale WCAB panel decision handed down in mid-June. Initially, the applicant in this case acted without an attorney. A dispute arose regarding provision of medical treatment, and the employer correctly requested a panel of 3 potential QMEs from the state, of course seeking medical doctors. Unfortunately, the applicant became represented by legal counsel just before the QME panel was issued. She immediately switched treating physicians, refused to attend the panel QME appointment, and requested another panel. This time, the request was for a panel of three chiropractors.

The trial judge found the applicant entitled to another panel from the state, and the WCAB panel affirmed on reconsideration. The WCAB panel found that since the applicant had refused to attend the first panel QME exam, she had not undergone a comprehensive medical-legal evaluation and was therefore entitled to a second panel of QMEs due to her becoming represented.

Okay, but what about those anti-doping regulations?

The latest word from the Division of Workers' Compensation's acting Administrative Director, Carrie Nevans, is that the state agency is looking into adopting new guidelines to cover treatment for chronic pain. It's well known that the existing ACOEM guidelines are being attacked by the applicants' bar when it comes to chronic conditions, including chronic pain. It seems, with such comments, that the AD's office is inclined to agree that they need more than what's provided by ACOEM at this time. Recent unpublished case law now supports this view as well.

New reporting indicates that the state is looking at numerous possible sources for new guidelines in this area, and ACOEM itself apparently doesn't want to miss out. The group's newsletter editor recently noted that they're developing a new methodology "that will put it ahead in the long run." Sounds to us like they're in the race for the long haul.

Don't Let that Penalty Flag Scare You

At the end of June, state regulators sent a nice note to claims adjusters, reminding them that new enforcement regulations (those dreaded new fines/penalties provisions) don't necessarily serve as a reason to send all treatment requests through utilization review. In fact, the DWC has now urged claims administrators to establish procedures to be used for preauthorizing "routine" treatment, reminding them that existing regulations allow for such handling of routine care authorization. This is certainly worth some thinking on the claims end, in our view, as we continue to maintain that UR should be used with some consideration as to cost versus benefit -- n'est-ce pas?

Need Assistance?

Are you interested in having M&F attorneys design a customized training or claim review roundtable meeting for your office? We'd be happy to provide on-site assistance as required to help you meet the challenges of today's claims administration issues, and to assist you in complying with all regulatory guidelines. Contact us today at education@mulfil.com for further details or to schedule a seminar.

Mullen & Filippi LLP has more than 50 years of experience in providing comprehensive legal services to California employers, insurance carriers, public entities and third-party administrators on issues arising from workplace injuries and other employment-related concerns. This column first appeared as a newsletter for their law offices.



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

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