DISCLAIMER: The statements and opinions contained in this publication are those of the contributors only and are not necessarily those of the California Lawyers Association, the Workers' Compensation Section, or any government body. This information is intended to be a reference tool only and is not meant to be relied upon as legal advice.
Maria Antonieta Sager, ESQ.
It is with great honor I begin my 2018-2019 term as Chair of the Executive Committee of the Workers' Compensation Section of the California Lawyers Association (CLA).
I am thrilled about getting to serve as Chair at a time when the CLA just came into being, having separated from the State Bar of California, made up of 16 Sections and the California Young Lawyers Association. With about 100,000 members, the CLA is the second largest professional association of lawyers in the nation, smaller only than the American Bar Association and its approximately 400,000 members. Among many benefits, the CLA will provide cutting edge education and publications, as well as networking opportunities.
The Executive Committee of the Workers' Compensation Section of the CLA represents one of the 16 Sections and is made up of judges, as well as applicant and defense attorneys, ensuring a balanced perspective on all issues addressed. The following is an overview of what the Executive Committee does for potential new members in particular.
Upon joining the Executive Committee, committee members are encouraged to join one or two of the following subcommittees: (1) Education; (2) Practice and Ethics; (3) Legislation; (4) Awards and Recognition; (5) Publications; (6) Membership; (7) Technology/Website/Social Media; (8) Community Outreach; and (9) Unpublished Decisions.
Each subcommittee's goal is to help our 3200+ workers' compensation members be the best they can be professionally through, for example, educational courses and articles found in the Workers' Compensation Quarterly. One such educational course coming up on October 20, 2018 at the Los Angeles Marriott Burbank Airport is the 7th Annual Rating Extravaganza. Come hear an esteemed panel discuss the published opinion issued by the Third District Court of Appeal in Cal. Dept. of Corrections & Rehabilitation vs. Workers' Comp. Appeals Bd. (Fitzpatrick) ADJ8815575.
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Committee members meet five times throughout the year, alternating between northern and southern California. Meetings generally take place in January, March, July, September, and November. At each meeting, among other agenda items, subcommittee Chairs report back to the entire Executive Committee on the accomplishments, goals, and challenges each face. It has been impressive watching subcommittee Chairs report back with care and thoroughness over the last five years.
A three year commitment is required, unless one decides to become an officer or advisor in which case one serves for a longer period.
I begin my new role excited to work with each committee member and advisor, some of the hardest working, most dedicated people I have ever met. I admire each of them for caring as they do and for working diligently to serve our workers' compensation community. Although I knew I would grow professionally as a member of this committee, I did not expect to establish the kinds of heartfelt friendships I have.
My goal as Chair is to help committee members take ownership of the one or two subcommittees they are most interested in by establishing goals and then accomplishing them. This is truly the best way to get the most out of serving on the Executive Committee.
Thank you to the past five Executive Committee Chairs under whom I had the honor to serve: Chief Judge Paige Levy; Jay Shergill; Yvonne Lang; Kenneth Sheppard; and David Skaggs. You each provided me years of training for my new role, for which I am grateful. I have learned from you what it means to be a good leader, listener, and committee member.
Please feel free to email me at email@example.com if you are interested in applying to be on the Executive Committee. I am happy to discuss the application process with you.
Congratulations once again to the 2018 Steve Jimenez Memorial Special Recognition Awards: Lifetime Achievement: Frank M. Brass and Richard L. Newman; Judge of the Year: Ellen Flynn; Applicant of the Year: Linda Joanne Brown; Defense Attorney of the Year: William L. Anderson; Young Attorney of the Year: Anthony Corso. Thank you for your hard work and dedication to our workers' compensation community.
Finally, thank you to my husband, Larry, and my law partners at Boxer & Gerson, for providing me unwavering support as I take on this exciting new opportunity. Without this kind of support, I am certain I would not be starting this new journey, sure to be one of the most rewarding and challenging of my professional life.
(Maria Antonieta Sager, a partner with Boxer & Gerson is also a Workers' Compensation Certified Specialist. In addition to her work with Centro Legal de la Raza's Youth Law Academy Advisory Committee and as a pro tem judge at the Oakland Board, she is also the current Chair of the Executive Committee of this section. Maria is also fluent in Spanish and conversational in Italian.)
Earn 6 Hours MCLE Credit! 6 hours of this program meets the specialization requirement of "mechanics of rating permanent disability requirement" for the certified workers' compensation specialty.
Saturday, October 20, 2018
Los Angeles Marriott Burbank Airport
2500 N Hollywood Way
Burbank, CA 91505
Schedule | Essential Info | Brochure | Reg Form
Update: Speakers will also be addressing issues related to the Fitzpatrick LC 4662 case that was issued as a published decision on Tuesday, September 25, 2018. This case will radically change the way both applicant and defense present cases where injured worker alleges they are 100% PTD.
The Workers’ Compensation Section of the California Lawyers Association was previously known as the Workers’ Compensation Section of The State Bar of California. The Workers’ Compensation Section is a non-profit and non-partisan, and continues to bring you some of the greatest MCLE programs in the State.
By Jack Jacobsmeyer
In one of the most anticipated appellate decisions of 2018, the California Supreme Court has reversed the Court of Appeal decision in King v CompPartners. The Court determined the Labor Code’s exclusive remedy provisions limit an employee’s ability to proceed outside the W.C.A.B for injuries alleged to have occurred as a result of the utilization review process. In doing so, the Court extended the employer’s exclusive remedy protections to entities providing statutorily required services on behalf of the employer.
This case arises out of a civil action filed by the Applicant, Kirk King, in a WC case whose medication (Klonopin) was not certified for continued use by a UR physician. The medication, which had previously been authorized, was terminated abruptly and King suffered 4 seizures with significant ongoing difficulties. King filed a civil action against the UR vendor, CompPartners and the UR physician, Dr. Sharma. King asserted the abrupt termination of Klonopin, without a warning that weaning of the medication was medically indicated, was negligent. He alleged the failure to provide weaning of the medication resulted in his seizures. King pleaded claims of negligence, professional negligence and intentional and negligent infliction of emotional distress as well as loss of consortium.
The trial court sustained defendants’ demurrer on the basis of exclusive remedy for both defendants and lack of a duty of care on the part of Dr. Sharma and further denied plaintiffs’ leave to amend.
The Court of Appeal affirmed the order sustaining the demurrer, agreeing the exclusive remedy protected defendants’ conduct in decertifying the medication. However, the appellate court viewed the failure to provide a warning as to the risks of abrupt termination of the medication as a separate act and not part of the UR process. That Court further concluded Dr. Sharma owed a duty of care to applicant but the scope of the duty of care could not be determined based on the information provided. The lower court noted the existence of a duty of care does not mean a physician is required to exercise the same degree of skill in every circumstance. The Court therefore suggested a case by case approach to evaluation of the physician’s obligation to exercise due care. The Appellate Court therefore upheld the demurrer to the complaint as filed, but granted leave to amend the complaint to establish a basis for breach of Dr. Sharma’s duty of care.
The Supreme Court however viewed the entire process for review of medical necessity as being part of the same continuum. Citing Vacanti v SCIF, the Court indicated even collateral matters, which were derivative of workers’ compensation claims, fell under the exclusive remedy provisions of Labor Code 3600. The Court pointed out:
“And where the remedy is available as an element of the compensation bargain it is exclusive of any other remedy to which the worker might otherwise be entitled from the employer: “The employer’s compensation obligation is ‘in lieu of any other liability whatsoever to any person.’ ”[citations omitted]
These established principles lead to a straightforward answer here. The Kings seek to recover for injuries that arose during the treatment of King’s industrial injury and in the course of the workers’ compensation claims process. Because the Kings allege injuries that are derivative of a compensable workplace injury, their claims fall within the scope of the workers’ compensation bargain and are therefore compensable within the workers’ compensation system.”
Turning to the lower court’s analysis of Dr. Sharma’s liability based on the failure to warn, the Supreme Court found the reliance on Vacanti’s discussion of injuries arising outside the employment relationship was misplaced. The Supreme Court found the ability to proceed outside the workers’ compensation act as more restrictive where there is a direct relationship between the conduct alleged to be causative of the injury and the employment relationship:
“This case presents no comparable circumstances. Certainly King, like the plaintiff in Weinstein, seeks recovery for injuries following his initial industrial injury. But unlike the injuries at issue in Weinstein, King’s injuries occurred within the scope of the employment relationship: King alleges the injuries resulted from errors in the utilization review process—a process that King’s employer, in its capacity as an employer, was required to establish for the review of the treatment recommended for King’s prior industrial injury. (See Lab. Code, § 4610.)”
The Supreme Court also rejected plaintiffs’ arguments that the UR vendor was not entitled to same protection under Labor Code 3600 as the employer.
“But as the Kings acknowledge, it has long been held that workers’ compensation exclusivity preempts tort claims against certain other persons and entities as well: insurers, as “the ‘alter ego’ of the employer” (see Unruh v. Truck Insurance Exchange (1972) 7 Cal.3d 616, 625 (Unruh)) and independent claims administrators and adjusters hired by self-insured employers to handle workers’ compensation claims (Marsh & McLennan, Inc. v. Superior Court (1989) 49 Cal.3d 1, 4 (Marsh)). The question is whether the WCA, properly interpreted, also preempts tort claims against utilization reviewers hired by employers to carry out their statutory claims processing functions. Viewing the question against the backdrop of our precedents, we conclude the answer is yes.
Perhaps most importantly, in performing their statutory functions, utilization reviewers, much like independent claims administrators, effectively stand in the shoes of employers: they perform utilization review on behalf of employers, to discharge the employers’ own responsibilities to their employees. Indeed, as the statute acknowledges, the utilization review function can be performed by the employer itself, as well as by the insurer or by an independent entity with which the employer or insurer contracts. (Lab. Code, § 4610, former subd. (b), now subd. (g).) The statute contains no suggestion that claims arising from the utilization review process should be treated differently depending on whether the employer conducts the review in-house or instead contracts with an independent utilization review organization. To the contrary, Labor Code section 4610.5—which sets out the procedures for resolving “[a]ny dispute over a utilization review decision” (id., § 4610.5, subd. (a))—expressly defines the term “employer” for that purpose to include the “employer, the insurer of an insured employer, a claims administrator, or a utilization review organization, or other entity acting on behalf of any of them.” (Id., § 4610.5, subd. (c)(4), italics added.) This special definitional provision tends to reinforce the conclusion that the Legislature regards utilization review organizations, like claims administrators, as acting on behalf of the employers that contracted for their services.”
The Court upheld the demurrer indicating the complaint failed to state a cause of action. It also reversed the lower appellate court ruling allowing leave to amend, finding it was not possible to state additional facts which would allow the matter to proceed in the face of the exclusive remedy provisions of Labor Code 3600.
There were two concurring opinions which were published in this case; both agreeing with the unanimous decision of the Court but both expressing concerns that Utilization Review might not be “working as the legislature intended”. Justice Liu suggested the legislature might wish to revisit the issue of whether existing safeguards (essentially the IMR and Audit processes) provided sufficient incentives for competent and careful UR. Justice Cuellar pointed out common law remedies are in place to provide protection to the public and remedy for wrongs. While making it clear the majority opinion properly determines such common law remedies do not apply in the exclusive remedy arena, the importance of the preventative and remedial purposes of common law remedies is suggested as a potential reason for the legislature to review whether the current statutory and regulatory safeguards, incentives and remedies are “set at optimal levels”
Comments and Conclusions:
Needless to say, the initial Court of Appeal opinion caused a significant level of anxiety in the employer/carrier/UR communities. More than just the potential for civil liability for UR vendors and physicians, the potential for opening the door to further erosion of the exclusive remedy was also a concern. The impact on availability of quality physicians to provide UR services was also very much a concern. The Supreme Court’s unanimous decision validating the exclusive remedy is certainly a welcome relief on those issues.
However, as noted by Justice Liu, there is a reason for common law remedies; one of which is to provide incentives for change in conduct where there is a potential for causing harm. The Court of Appeal decision, even though there had been a Supreme Court grant, did have a significant beneficial effect for the reason expressed in that concurring opinion. Virtually every UR vendor with whom I am familiar, including several to whom I provide consulting services, initiated changes in their procedures for medication denials. The UR vendors took steps to require consideration of weaning where there was a potential for withdrawal symptoms or consequences. Many implemented special procedures for communicating with treating physicians to establish a weaning protocol before terminating medication. In this respect the decision, even though now reversed, has already had the beneficial impact suggested by Justice Liu.
A copy of the decision is attached here.
1. For those not familiar with civil proceedings, a demurrer is a response to a complaint which raises the issue of whether there is a proper cause of action stated in the pleading. In that proceeding, defendant argues even if all of the facts alleged by plaintiff were true, the complaint did not state a cause of action. In appellate proceedings, the Court will assume all of the facts in the complaint are true in deciding if there is a properly stated cause of action. This case, like many appellate cases, was argued on just whether the pleadings were sufficient to proceed. No actual evidence was presented and not showing of negligence had yet been made.↩
Jake Jacobsmeyer is a name partner in the Oakland firm of Shaw, Jacobsmeyer, Crain & Claffey. He can be reached at firstname.lastname@example.org.
© Copyright 2018 Jake Jacobsmeyer. All rights reserved.
As a benefit of Section membership, CLA 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.
CLA Workers’ Comp Section members may also use this link to access a plethora of our most popular articles from our publications.