On Sunday the California Applicants’ Attorneys Association wrapped up its 2015 winter convention in San Diego.
CAAA’s conventions often serve as a weathervane of the California workers’ comp scene, and as incubators for new theories and trends. The syllabus to the meetings was 1,585 pages long.
What follows are some quick takeaways I got from some of the sessions there as well as citations to some interesting recent cases that were discussed. As you will see, much of the conference content focuses on adjusting to the new comp world issued in by SB 863.
UR and IMR continues to be the primary thing on the minds of claimants, lawyers and doctors. Treatment denials are causing frustration, and are said to be preventing workers from returning to work and causing conditions to be worse than they would otherwise be. Attorneys are hoping for relief if the IMR system is declared unconstitutional in Frances Stevens v. Outspoken Enterprises. Attorneys are hopeful that a writ will be granted in Dubon II, allowing a challenge of UR decisions on a wider basis than timeliness violations.
Another case on the horizon is Saul Zuniga v. Interactive Trucking, Inc.. In Zuniga the worker is petitioning for a writ at the California Court of Appeals, First District. At a trial the WCJ had ruled than an IMR decision was the result of a plainly erroneous express or implied finding of fact that is based on a mater of ordinary knowledge, and as a result the WCJ had ordered the administrative director to submit the matter for IMR resolution by a different reviewer. After a second clearly erroneous decision was rendered, Zuniga sought an order from the WCJ to reveal the identity of the reviewer to determine if Maximus was complying with the WCJ orders and to allow cross-examination. The WCJ and the WCAB panel did not allow that, thus leading to the petition for writ.
Concern over inadequate treatment
Many feel that the current UR/IMR system is prolonging recovery, thereby lengthening periods of TD and increasing the ultimate impairment and earnings losses. A physician presenter noted that instead of aggressive disability management where great care is taken to manage the most effective treatment, California now appears to be rationing and not even managing medical resources.
One concern is that occupational medical clinics in some cases delay referrals to appropriate specialists. MPN membership discounts were said to encourage serious over utilization which in turn leads to the need for UR and IMR. Many MRIs arranged through bulk test providers are said to be performed on older MRI equipment instead of higher revolution scanners.
Chapter 14 of the Guides may be a basis for physicians to describe the most accurate level of impairment
Attorneys may need to focus more on alternative ways to get the evidence they need to prove up their cases. One way may be to make more use of Labor Code 4601. 4601 provides that in a serious case an employee may demand a consulting physician at the employer’s expense.
Treating doctors, including MPN physicians, are often not adequately trained in MTUS. This causes more UR and IMR problems due to lack of education of the doctors on the requirements of the system.
Something is fundamentally wrong when carriers seek UR review of the carrier’s own MPN doctors. Nevertheless, it was noted that in the panel decision of Rochelle Stock v. Camarillo State Hospital (2014 Cal. Wrk. Comp. P.D. Lexis 471) that a board panel appeared to reject the argument that a defendant can not seek UR review of its’ MPN physician’s request.
Seeking treatment outside the MPN seems to continue as a focus for many attorneys, particularly in Southern California. In some cases the employer did lose medical control by virtue of its conduct under theories of refusal or neglect to provide care (see Aramark Uniform Service v. WCAB (2013) 78 CCC 982 or under estoppel or lack of notice theories (see Parry v. County of San Mateo 2013 Cal. Wrk. Comp P.D. Lexis 175.
After a discharge from care, the worker must resolve disputes via the QME process under Labor Code 4061 and 4062. Speakers noted Acosta v. Balance Staffing Services 2014 Cal. Wrk. Comp. P.D. Lexis 480 seems to hold that partner than the parties must use the panel QME process to resolve disputes over a discharge from care rather than the seldom-used MPN second opinion process under LC 4616.3 and 4616.4.
Employers and carriers have achieved an unprecedented degree of control over the worker’s treatment. One powerpoint slide noted that employers control the initial referral to the industrial clinic, choose who is in the MPN, exercise control over the UR process, and benefit from a very high uphold rate that is binding and practically without the right of appeal for 12 months except in extreme situations. Specialists who actually physically evaluate the patient ultimately have no say in the treatment. It was said that combined with economic profiling of physicians and strict MPN contracts, physicians have lost control of treatment.
Other techniques for getting treatment for workers may include the applicant attorney seeking a Labor Code 4605 exam or the attorney objecting to the treater report so as to invoke the QME process.. Under 4605 the worker’s attorney may either front the cost or arrange an exam with the worker signing a consent lien to pay for the exam from case proceeds. This approach, which appears to be used mainly in Southern California, is seemingly compliant with the Vasquez decision.
There is continuing concern over ethics violations by some who practice at the WCAB. Ethical violations can include failing transmit settlement offers and lack of communication. Many in CAAA are concerned about attorneys who solicit clients in unorthodox ways and who rarely or never meet the attorney. Some of these cases may settle for minimal value with huge provider liens. This is an issue that may be looked at by the State Bar and a continuing CAAA organizational concern.
Depositions of doctors remains an effective tool in dealing with both treating and QME doctors. According on one panelist, “preparation is the mother of success”.
When is medical care really medical care?