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In the November 2017 edition of the E-News, I mentioned that I was participating on one of the panels for the State Bar Workers’ Compensation Section’s (now known as the California Lawyers Association Worker’s Compensation Section’s) Annual Fall Conference in Los Angeles. One of the cases that I highlighted was Telles Transport v. WCAB (2001), 92 Cal.App.4th 1159; 66 Cal. Comp. Cases 1290, which involves the doctrines of waiver and invited error. The case presents an example of a litigation tactic that backfired. AOE/COE was at issue in Telles. Both parties had all relevant medical records in their possession, including certain records that would assist in establishing causation but might also create confusion over the proper date of injury. Rather than risk the confusion, the applicant intentionally withheld the records from the court. Following a trial, the WCJ issued an AOE/COE finding in favor of the defendant. The applicant appealed to the WCAB urging a review of the withheld records under the board’s duty to develop the record. The WCAB agreed, reversed and remanded, resulting in the defendant’s petition for appellate review. The Court of Appeal referenced “general civil litigation principles” and stated that “where a deliberate trial strategy results in an outcome disappointing to the advocate, the lawyer may not use that tactical decision as the basis to claim prejudicial error. ([Citation omitted].)” The Court applied the doctrines of waiver and invited error to the workers’ compensation proceeding and concluded that the WCAB had abused its discretion and exceeded its authority by “improperly undercut[ting] the clear intent of section 5502[(d)(3), requiring parties to list evidence and disclose witnesses in the pretrial conference statement].”
-- David Skaggs, Chair
Open for Nominations: STEVEN JIMENEZ MEMORIAL SPECIAL RECOGNITION AWARDS
Every year, Awards are presented by the Workers’ Compensation Section for the following categories:
1.) Lifetime Achievement
2.) Judge of the Year
3.) Applicant’s Attorney of the Year
4.) Defense Attorney of the Year
5.) Young Lawyer of the Year
The Awards will be presented at a reception on Friday, 9/14/2018, in conjunction with the Sections Convention in San Diego.
Deadline for nominations is March 30, 2018.
For information regarding the Awards including past recipients, please go to: http://cla.legal/Sections/Workers-Compensation/Awards
The nomination form is currently being updated and should be available at the above link shortly. Nominations can also be sent to Joan Succa at justicerains@earthlink.net
By Julius Young
What were the top developments in California workers’ comp during 2017?
Every year (and at mid year) I compile a list of my picks for top developments in California’s workers’ comp. I’ve included links to some of the primary source material as well as links to some of the in-depth posts I did on these various topics.
Here, in no particular order, are my picks for noteworthy happenings and trends during 2017:
1. California finalized plans for a prescription drug formulary to debut in 2018
After multiple rounds of regulatory drafting and public comment, the DWC adopted final formulary rules which go into effect January 1, 2018. Under the new formulary, some drugs will be exempt from prospective review while others are non-exempt. Proponents believe that the formulary will promote better quality of care and help curtail some of the volume of UR/IMR disputes since a large percentage of those involve pharma issues. In any case, the formulary is likely to be a sea-change for many treating physicians and their worker patients. In comments on the proposed regulations, CAAA and others cautioned that the rules as written could cause confusion about termination or weaning of some medications. The new formulary regs can be found here:
http://www.dir.ca.gov/dwc/DWCPropRegs/MTUS-Formulary/MTUS-Formulary.htm
Here’s my post on the formulary:
http://www.workerscompzone.com/2017/09/25/tapering-and-weaning/
2. California adopted revised treatment guidelines effective December 1, 2017
In 2017 the DWC adopted a major revision to the medical treatment guidelines known as MTUS. In doing so, the DWC updated the MTUS by adopting 14 sections from guidelines established by ACOEM (the American College of Occupational and Environmental Medicine). MTUS revisions do not need to go through public comment procedures. In addition to updated guidelines for many specific body parts the revised regs also include updated guidelines for chronic pain treatment and use of opioids. Since most treating physicians have had little to no training in the new guidelines, the system is entering a period of significant adjustment. Some treatment modalities such as spinal stimulators will likely be severely cut back if not eliminated under the new guidelines.
Here is a link to the MTUS revision:
http://www.dir.ca.gov/dwc/DWCPropRegs/Medical-Treatment-Utilization-Schedule/Medical-Treatment-Utilization-Schedule.htm
3. Workers’ comp costs continued to moderate
In its July 1, 2017 pure premium rate filing the WCIRB noted that there was “downward medical loss development, acceleration in claim settlement, decreasing indemnity claim frequency, lower than projected accident year 2016 losses, increasing projected wage inflation and lower than projected allocated loss adjustment expenses (ALAE)”. So called “pure premium rates” are an advisory benchmark only, but do provide a snapshot of trends. The “pure premium” approved by Insurance Commissioner Dave Jones for mid 2017 was $2.02 per $100 of payroll, a cut of 7.8% from the earlier $2.19 per $100 of payroll. In October 2017 Jones approved a “pure premium” rate cut to $1.94 per $100 of payroll after 1/1/18. This is less than half of the 2003 “pure premium rate”, which spiked to $4.27 per $100 of payroll.
The flip side of the rate story is more complicated, however. On average, insurers are pricing coverage at higher rates than the “approved pure premium”. For example, according to the CDI analysis of insurer rate filings as of July 1, 2017, “insurers are using an average pure premium rate level of $2.34 per $100 of employer payroll”. According to the WCIRB 2017 State of the System report, average charged rates may have been as high as $2.58 per $100 of payroll during the first quarter of 2017. That is quite higher than the $2.02 approved as a benchmark for mid 2017.
So with it becoming consistently apparent that actual charged pricing is higher than the justified “pure premium”, Insurance Commissioner Jones issued a call that the Insurance Commissioner be given the power to regulate and reject rates. Current law gives the Insurance Commissioner no power to actually regulate charged rates. As 2017 ended it was not clear that Jones’ call would have much traction in the legislature.
Here is the press release issued by Jones which calls for increased CDI regulatory authority:
https://www.insurance.ca.gov/0400-news/0100-press-releases/2017/release115-17.cfm
4. The 2017 legislative session was a dud for workers’ comp
Many workers’ comp bills failed to advance to the Governor’s desk and even fewer gained his signature.
Brown vetoed AB 570, the latest installment of an effort by Assemblywoman Lorena Gonzalez-Fletcher and worker advocates to address perceived gender-related inequities in calculation of permanent disability. In prior years Brown vetoed two slightly different bills targeting gender discrimination, AB 305 and AB 1643.
Measures to prohibit apportionment based on genetics (SB 617)(Bradford) , a bill to require that the DIR spend all of the $120 million Return to Work Fund each year (AB 553)(Daly), and a bill that would eliminate a comp exemption in order to provide coverage to day laborers (AB 206) (Gonzalez-Fletcher) each got kicked into 2018 as “two year bills”.
2018 will be the last lap of the Brown Administration, and any legislative activity will be complicated by the fact that it is an election year as well as the recent turmoil over sexual harassment in California’s capitol which has embroiled some key legislators in sex scandals.
Among the most significant bills that did make it into law in 2017 are the following:
-AB 44(Reyes), a bill arising as a result of complaints from workers injured in the San Bernardino terror attack. This bill requires that in the event of a terrorist attack (if certified by the governor), employers must provide nurse case managers.
-SB 189 (Bradford), a clean up bill following the 2016 AB 2883; SB 189 lowers the threshold for a partial corporate owner or director to waive workers’ comp coverage and sets forth the terms of a valid waiver
-AB 1422 (Daly), plugging several loopholes in the 2016 anti-fraud measures.
-SB 306 (Hertzberg), giving the Division of Labor Standards Enforcement power to investigate and provide citations and penalties where there is suspected retaliation for exercising workplace rights. Here is the post I did on this bill: http://www.workerscompzone.com/2017/10/10/brown-signs-retaliation-bill/
-SB 430, broadening the ability of CIGA to purchase reinsurance
5. A dispute between some QMEs and the DWC continued to simmer
In late 2017 several groups of QMEs sued the DWC in Los Angeles County Superior Court, alleging in part that the DWC had adopted underground regulations which resulted in delay and denial of QME re-certification.
The background for this dispute is that in 2016 the DWC Medical Unit delayed or chose not to re-certify scores of QMEs. In many cases this was due to alleged problems with QME billing under a new DWC Medical Unit interpretation of the requirements for billing ML 103 and ML 104 codes. The Medical Unit has been slow to set hearings on appeals of the recertification denials.
While the Superior Court denied a request for injunctive relief, the court scheduled further proceedings on the matter for early 2018. The QME plaintiffs have charged that the DWC Medical Unit delays scheduling hearings on the QME reappointments, denying them due process and stalling as their economic interests are harmed.
The dispute over the proper interpretation of ML billing codes also arose in 2017 in the context of a new Medical Unit online training module for QMEs.
Here’s my post on this QME billing recertification issue: http://www.workerscompzone.com/2017/09/28/see-ya-in-court/
6. The 2016 anti-fraud bills continued to have significant effect in 2017
The DWC made efforts to root out provider fraud a central theme in 2017 as the provisions of two 2016 legislative anti-fraud provisions (SB 1160 and AB 1244) took effect.
Labor Code §139.21(a)(1)/AB 1244 requires the DWC to suspend any medical provider, physician or practitioner from participating in the workers’ compensation system where:
By late December the DWC had issued 131 orders suspending medical providers from participating in the system as a result of fraud, criminal convictions and loss of medical licensing. An online list is maintained by the DWC:
http://www.dir.ca.gov/Fraud_Prevention/Suspension-List.htm
In 2017 the DWC posted a list of criminally charged providers whose liens are stayed pursuant to Labor Code 4615. And in late December 2017 the DWC posted online a full list of lien claimants whose liens have been flagged in EAMS as potentially subject to a stay under Labor Code §4615.
The latter was ordered by Federal District Judge George Wu as part of hearings on a challenge to the constitutionality of the 2016 anti-fraud reforms.
The rules surrounding provider suspensions and lien stays could still change depending on the outcome of court challenges that are underway . It should be noted that the DWC, currently operating under emergency regs, is still in a rule making process on provider suspension regs, having held a December 2017 public hearing on a 45 day version of provider suspension rules.
And late in 2017 the California State Auditor issued a report on fraud fighting that makes pointed suggestions for improvement by the DIR/DWC and the California Department of Insurance. The CDI agreed with the audit suggestions but the DIR/DWC issued a rebuttal letter to which the State Auditor filed a rejoinder. The audit report can be found here: https://www.bsa.ca.gov/pdfs/reports/2017-103.pdf and my blog post can be found here: http://www.workerscompzone.com/2017/12/20/the-fraud-audit/
7. In 2017 there were a handful of notable court decisions on workers’ comp
From the California Court of Appeal there were a handful of potentially important workers’ comp opinions:
–Hikida v. WCAB (disability resulting from medical treatment for which employer is responsible is not subject to apportionment) Here is my post on Hikida: http://www.workerscompzone.com/2017/06/28/hikida/
–City of Jackson v. WCAB (Christopher Rice) (allowing apportionment of disability caused by genetics) My post on the Rice case is found here: http://www.workerscompzone.com/2017/04/27/genetics/
–Southern Insurance Co, v. WCAB (Berrios-Segovia) (recission of comp coverage after injury where employer misrepresented job duties in application for insurance). My post on this case is here: http://www.workerscompzone.com/2017/07/07/your-workers-travel-where/
–Ramirez v. WCAB (3rd DCA rejects challenge to the constitutionality of IMR)
–County of Riverside v. WCAB (Sylves) (4th DCA) (application of Labor Code §5500.5 in cumulative trauma cases)
–Baker v. WCAB (Sierra Pacific Fleet) (3rd DCA determines that untimely IMR decisions are still valid as time limits held to be directory, not mandatory)
–Stevens v. WCAB (Outspoken Enterprises) (1st DCA granted a writ but later dismissed the grant; the petition had challenged the WCAB’s voiding of a 2009 MTUS version of home health care guidelines)
–Baker v. WCAB (Guerrero) (6th DCA finds proper starting date for SIBTF payments to begin at date of entitlement to PD benefits)
–Zhu v. WCAB (2nd DCA) (injury while bicycling between caregiving work sites held compensable)
–Ly v. County of Fresno (5th DCA) (workers’ comp “take nothing” award held to preclude FEHA award on the same facts)
–Pearson Ford v. WCAB (Hernandez) (4th DCA) (fraud conviction did not preclude recovery where there was actual injury and medical evidence showed disability was independent of the fraud)
-The People ex. rel. Mahmoud Alzayat v. Hebb (4th DCA) (qui tam action under the Insurance Frauds Prevention Act/Insurance Code §1871 against an employer who made false statements causing a workers’ comp claim to be denied)
There were many noteworthy WCAB panel decisions to include in this year end recap, but in 2017 the WCAB issued only one en banc decision that is notable:
–Maxham v. California Dept. of Corrections (clarifying the distinction between “communication” and “information” as used in Labor Code §4062.3 that addresses what contacts parties can have with QMEs) My post on the case is here: http://www.workerscompzone.com/2017/01/26/ok-to-advocate/
In 2017 an attempt to sue the DIR, DWC and various Brown Administration officials fell flat. The Los Angeles County Superior Court lawsuit alleging gender discrimination, filed by public interest law firms, was dismissed without leave to amend.
The California Supreme Court has still not issued a ruling in King V. CompPartners, a case widely watched on the issue of whether UR reviewers may owe a medical duty of care to an injured worker that can be the source of civil tort liability.
Oral argument is set for early 2018 in an important case, County of San Diego V. WCAB (Pike), a case I discussed in the blog: http://www.workerscompzone.com/2017/10/26/pretty-big-deal/
8. The DIR/DWC announced large increases in employer assessments for 2018
The amount of assessments for 2018 will increase from $324 million to $506 million, an increase of over 56%.
California workers’ comp is not funded out of the general state budget and is “user funded”.
The increased assessments are spread across many of the DIR’s efforts, including the Subsequent Injuries Fund (now known as the SIBTF), the Fraud Assessment Commission Account , the workers’ comp general administrative fund known as the Revolving Fund, the UEBTF (uninsured employers fund), Cal-OSHA, DLSE and the $120 million Return to Work Fund.
At year’s end it was not clear whether there would be any political fallout to the projected assessment increases. Generally California employers have been very happy with the Brown Administration’s efforts on workers’ comp. Given that insurance rates have declined, California employers may have to swallow these increased assessments. An interesting twist is that since 2013 lien filing fees had masked some of the costs of the DWC doing business. But as lien filings have declined, so has income from the lien filings, leaving a hole in the DIR/DWC budgets.
9. As usual there were studies and reports that may drive the workers’ comp agenda in the future
In past years we have seen that studies and reports become the fodder for future policy debates in the legislature and the regulatory apparatus. In 2017 there was the usual raft of studies.
WCIRB issued a 2017 State of the System report:
–https://www.wcirb.com/content/report-state-workers-compensation-insurance-system
Here’s my post on that report: http://www.workerscompzone.com/2017/08/17/wcirb-releases-2017-state-of-the-system-report/
CHSWC had commissioned a study of trends in the QME system and a report issued from UC Berkeley Frank Neuhauser. The Neuhauser report, which is currently posted but not approved by CHSWC, can be found here:
http://www.dir.ca.gov/chswc/reports/2017/QME_2017_Trends.pdf
Neuhauser’s report generated public comment which can be seen here:
http://www.dir.ca.gov/chswc/reports/2017/Comments_QME_Study_2017.pdf
Here is my post on the Neuhauser QME study: http://www.workerscompzone.com/2017/10/18/chswc-and-the-qme-system/
The California Workers’ Compensation Institute (CWCI) did studies on a number of topics, including the following:
-opioids and Medicare Set Asides http://www.cwci.org/press_release.html?id=616
-IMR volume http://www.cwci.org/press_release.html?id=609
-opioids and mental health disorders http://www.cwci.org/press_release.html?id=606
-spinal fusion claims http://www.cwci.org/press_release.html?id=578
-the potential impact of a formulary http://www.cwci.org/press_release.html?id=602
A report from the California Orthopedic Association highlighted difficulties that surgeons are having getting pre-operative testing authorized:
http://www.coa.org/docs/WhitePapers/PreOpTesting.pdf
The National Academy of Social Insurance (NASI) produced its annual comparison of state workers’ comp programs:
https://www.nasi.org/research/2017/workers-compensation-benefits-coverage-costs
And from the Boston based WCRI there was one of their CompScope papers which analyzed decreasing medical payments per claim in California after the 2012 reforms:
https://www.wcrinet.org/reports/compscope-medical-benchmarks-for-California-18th-edition
10. Injured workers continue to complain about treatment denials and access to treatment
This last pick isn’t so much of a new development as it is a steady theme that emerges when workers embroiled in contested cases voice their experiences. For years now there has been an ongoing debate between CWCI and CAAA over whether UR and IMR denials are a small slice of the overall medical approval universe or a significant chunk of sought-after treatments in non-first aid claims.
Ultimately it appears that IMR volume remains incredibly high as of 2017, though the volume of disputes may be driven by a relatively small number of providers. At year’s end it is unclear how other emerging changes in the system such as the formulary, the revised MTUS, DWC data mining, and provider suspensions will affect the number of disputes.
At mid-year 2017 I listed the top 10 developments in 2017 through June 2017:
http://www.workerscompzone.com/2017/07/11/top-10-california-workers-comp-first-half-of-2017/
And here is my end of 2016 top 10 list:
http://www.workerscompzone.com/2017/01/04/2016-california-workers-comp-top-10-list/
In early 2018 I’ll be doing my annual soothsayer quiz on likely developments in workers’ comp during 2018. So stay tuned.
Julius Young
https://www.boxerlaw.com/attorney/julius-o-young/
© Copyright 2018 Julius Young. All rights reserved. Reprinted with permission.
As a benefit of Section membership, the state bar is pleased to offer six hours of MCLE credit, offering credit in all of the MCLE subfields, Elimination of Bias in the Legal Profession, Detection and Prevention of Substance Abuse and Emotional Distress and Legal Ethics. Just watch these programs found at the link below, and keep a record of having done so, in the event you're audited for MCLE compliance.
http://members.calbar.ca.gov/sections/workerscomp/
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