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The California Applicants’ Attorney Winter 2013 Convention is now underway at the San Diego Sheraton and Marina Hotel. The annual meeting will continue until Sunday January 27. The focus on this years convention is “Navigating Your Way Through The Comp System Since SB 863.” Panelists on the first day of the event discussed Medical Control’s and MPNs as well as Discovery and Right to Privacy.

It was not unexpected that panelists anticipate constitutional challenges to the validity of some of the provisions of S.B. 863. The same view was expressed by panelists at the Employers Fraud Task Force presentation earlier this month. It is not clear who or when this challenge will take place, but the consensus is that the theory will involve the constitutional requirement for due process of law. Simply stated, there is a constitutional requirement for a dispute resolution mechanism that provides notice and and opportunity to be heard. The challenge to S.B. 863 will claim that the Independent Bill Review and the Independent Medical Review process does not achieve minimum standards of due process of law. The constitutional argument theorizes that the two administrative procedures do not allow claimants or the employer the ability to argue their case before the decision maker in either of these two administrative processes, and since there is no effective right to appeal before the WCAB on matters of expert opinion, the administrative process falls short of the constitutional requirement.

Panelists also discussed the discovery and privacy rights that changed under the new law. The provisions of LC 4903.6(d) now says that medical information that can not be sent to non-physician lien claimants without written authorization from the WCAB. WCAB Orders must specify what is to be disclosed, and findings that it is relevant. There will be a greater emphasis now on protecting the privacy rights of the injured worker. From the applicants’ standpoint, subpoenas that request “any and all” records would be over broad and subject to petitions to limit that discovery.

LC 5502(b) now includes “whether the injured employee is required to obtain treatment within a medical provider network” as an appropriate issue for an expedited hearing. Presenters claimed that applicant attorneys will now seek expedited hearings on MPN issues since S.B. 868 did away with the rights of the employer to transfer workers back into an MPN, and for that reason if they get out of the MPN, they will remain out indefinitely with “that” treating physician.

The 2013 CAAA Convention continues today and over the weekend. A topic for Friday is “New Ethical Considerations Under SB863” Conflicts of Interest – Dealing with the rules and potential problems – Attorneys, doctors and their staff…… Be aware! – What is an attorney’s legal obligation? On Saturday the topics will include “Utilization Review – UR: What about denied claims or partial denied claims? – Independent Medical Review – Employer to serve applicant attorney with all materials sent to IMR – Time limitations; what happens if review is untimely? – Is there a role for the AME or PQME in treatment disputes?”