Author: WorkCompAcademy

Lieutenant Seth Patrick Lantz, a 33-year-old correctional officer at Pleasant Valley State Prison in Coalinga, California, was killed in an automobile accident at 6:20 a.m. on Saturday, October 2, 2010 on his way home from work. He lived in the Bakersfield area and commuted to the prison in his own vehicle. The one-way commute was over 85 miles.

Lantz regularly worked 40 hours per week and had Sundays and Mondays as his regular days off. But, on the day of the accident, Lantz worked his regularly assigned shift.and was informed that he would need to “hold over” and serve as the watch commander for the next shift, which ran from 10:00 p.m. to 6:00 a.m. When a replacement watch commander is needed, the procedure used for selecting the replacement has been agreed upon by the Department of Corrections and Rehabilitation (Department) and the officers’ union. Lantz was assigned the hold-over shift as watch commander in accordance with the reverse seniority procedure because no one had volunteered to take the shift. Lantz had served as watch commander before.

While traveling home, Lantz drove his personal vehicle and the only state property he transported to and from work was a protective vest. With regard to commutes in general, Lieutenant Contreras testified that Department employees were not paid for their commuting time, were not required to own personal vehicles, and were not required to wear their uniforms to and from work. In fact, correctional officers were advised to remove or cover the upper part of their uniform when commuting. Lockers at the prison are unassigned and available on a first come, first serve basis. As a result, many correctional officers wear their uniforms to work, but wear something over the shirt during their commute. He died as a result of a fatal accident on his way home after the “hold over” shift.

Lantz’s widow, on behalf of herself and four children (applicants), applied for workers’ compensation benefits, contending that Lantz sustained the fatal injury during the course of his employment. After a trial, Workers’ Compensation Administrative Law Judge Robert K. Norton issued an order that included findings of fact. The first finding stated that Lantz “sustained an injury arising out of and in the course of his employment resulting in his death.”

The State Compensation Insurance Fund (State Fund) filed a petition for reconsideration which was granted. The WCAB rescinded the order and determined that (1) the one-way commute of more than 85 miles traveled by Lantz, while significant, constituted the ordinary, local commute that marked Lantz’s transit to and from work and (2) the change in schedule caused by the second shift did not, by itself, mean the departure time was not fixed. Accordingly, the WCAB concluded that the going and coming rule would control the outcome unless the “special mission” exception applied. The WCAB concluded that it was not extraordinary for Lantz to be held over and required to work a second shift – an occurrence so common that the employer and officers’ union had established official procedures for assigning hold-over shifts. Second, the WCAB indicated that requiring Lantz to act as the watch commander was not extraordinary because it was part of established procedures, the duties performed in that position were similar to his usual responsibilities, and Lantz was among the officers regularly assigned to that position. The WCAB stated the assignment as watch commander increased the number of individuals under his authority, but the activities of the watch commander were not dramatically different from Lantz’s day-to-day obligations. Consequently, the WCAB granted the petition for reconsideration and ordered the substitution of a finding that stated Lantz “did not sustain an injury arising out of and in the course of his employment with defendant, resulting in his death.”

In March 2013, the Court of Appeal issued an order summarily denying applicants’ petition for writ of review. Applicants then filed a petition for review with the California Supreme Court, which was granted with directions for this court to issue a writ of review. Accordingly, the Court of Appeal reviewed the case affirmed the denial of death benefits in the published opinion of Lantz v WCAB The Court concluded that “The Workers’ Compensation Appeals Board (WCAB) denied the application for benefits, determining that the hold-over shift as watch commander was not extraordinary because, among other things, it was assigned in accordance with procedures agreed upon by the prison administration and the officers’ union and did not dramatically change his activities. We conclude the WCAB’s decision involved weighing evidence and choosing among conflicting inferences that could be drawn from that evidence and, therefore, is properly characterized as a finding of fact. Under the standards for judicial review established by the Labor Code, we must uphold the finding of fact that the hold-over shift was not extraordinary because it is supported by substantial evidence. Therefore, the decision of the WCAB denying benefits is affirmed.” .

The Division of Workers’ Compensation (DWC) is issuing a notice of public hearing for the Medical Treatment Utilization Schedule (MTUS) regulations. The proposed rulemaking sets forth a framework to determine best practices for providing medical care for work – related illnesses or injuries. A public hearing on the proposed regulations has been scheduled at 10 a.m., July 1, in the auditorium of the Elihu Harris Building, 1515 Clay Street, Oakland, CA 94612. Members of the public may also submit written comment on the regulations until 5 p.m. that day.

The proposed amendments to the MTUS clarify the scientific process by which evidence – based clinical decisions should be made for individuals diagnosed with industrial conditions. The role of the MTUS is clearly established as the standard for the provision of medical care in accordance with Labor Code section 4600. The proposed regulations then set forth the process used to determine reasonable and necessary medical care when the MTUS is silent on a particular medical condition, therapeutic procedure, or diagnostic test or when the MTUS is successfully rebutted pursuant to Labor Code section 4604.5.

The process begins with a medical literature search sequence to guide those making treatment decisions in finding recommendations applicable to the injured worker’s medical condition. The proposed regulations detail how medical evidence shall be evaluated according to an explicit, systematic, strength – of – evidence methodology to determine which recommendation is supported with the best available evidence. Recommendations supported with the best available medical evidence shall be used to determine what is reasonably required to cure or relieve the injured worker from the effects of his or her injury.

Finally, the proposed regulations add two additional members to the Medical Evidence Evaluation Advisory Committee (MEEAC) and address the role and duties of MEEAC.

The proposed changes to the MTUS regulations start with section 9792.20 of Title 8 of the California Code of Regulations.

DWC will consider all public comments, and may modify the proposed regulations for consideration during an additional 15 – day public comment period. The notices of rulemaking, text of the regulations, and the initial statements of reasons can be found on the MTUS rulemaking page .

The Division of Workers’ Compensation has issued a notice of public hearing for proposed Copy Service Fee Schedule regulations. The public hearing has been scheduled for 10 a.m. Tuesday, July 1 in Room 1 of the Elihu Harris Building, 1515 Clay Street, Oakland, CA 94612. Members of the public may also submit written comments on the regulations until 5 p.m. that day.

“This Copy Service Fee Schedule will reduce litigation and allow providers to submit fee disputes to independent bill review,” says DWC Acting Administrative Director Destie Overpeck. “It will also add clarity regarding allowable services to copy service providers and payers.”

The fee schedule was developed in consultation with the Commission on Health and Safety and Worker’s Compensation (CHSWC). Senate Bill 863 requires DWC to implement a schedule of reasonable maximum fees for copying and related services. The Copy Service Fee Schedule provides for a maximum flat fee of $180 for records up to 500 pages and includes all associated services such as pagination, witness fees, and subpoena preparation. For more than 500 pages, an additional per page fee of 20 cents per page is allowed. Certificates of no record would be payable at a maximum of $100.

Proposed changes include allowing DWC to bill $85 an hour instead of $40 an hour for electronic requests made under the Public Records Act and to charge $1 for CDs of these records. The proposed changes also include an allowance for DWC to dispose of paper adjudication documents after 20 years and replaces deposits required for DWC transcripts with an up-front $150 fee for transcripts of 50 pages and under. For transcripts over 50 pages, an extra $3 per page would be paid before the transcript is released.

The notice and text of the regulations can be found on the proposed regulations page.

Department of Neurosurgery, Oakland University William Beaumont School of Medicine findings published in the February online issue of Spine shows that patients who have a low back surgery called minimally invasive transforaminal lumbar interbody fusion (MITLIF), end up better off in many ways than patients who have more invasive surgery to alleviate debilitating pain.

Lumbar fusion serves to eliminate abnormal motion and instability while maintaining load-bearing capacity and proper alignment to provide symptomatic treatment for spinal instability, stenosis, spondylolisthesis, and symptomatic degenerative disc disease.1 During the past few decades there has been a dramatic increase in the rates of lumbar fusion procedures in the United States.

For many surgical procedures, the method of choice is shifting from traditional open surgery to minimally invasive techniques. Postoperative histological and imaging studies have demonstrated that conventional open techniques are associated with increased scar tissue formation, significant muscle stripping, and muscle retraction which adversely affect outcomes, and increase reoperation rates. Minimally invasive techniques are performed via a muscle-dilating approach that helps to preserve paraspinal muscular anatomy and bone architecture, and have been shown to diminish iatrogenic soft-tissue injury significantly. Reasons for widespread transition to minimally invasive spine (MIS) techniques include decreased postoperative pain, decreased intraoperative blood loss, shorter postoperative hospital stay, faster return to normal activity, and reduced reoperation rates.

Use of minimally invasive fusion techniques in lieu of traditional open fusion techniques remains a crucible of debate as long-term prospective outcomes in patients undergoing minimally invasive spinal fusion for debilitating back pain has not been well studied. This study was designed to contribute evidence to this debate by reporting long-term, prospectively collected outcomes on 1 of the largest currently available series of minimally invasive transforaminal lumbar interbody fusion (MITLIF) with a minimum follow-up of 24 months, and to determine if adjacent level pathology (ALP) is reduced by preservation of the normal anatomical integrity of the spin

The Beaumont study, led by Dr. Perez-Cruet, found that minimally invasive procedures with smaller incisions can reduce chronic low back pain, hospital stays, complications and scarring. It also can lower costs and infection rates compared with more invasive, open procedures. The seven-year study looked at 304 patients who received the minimally invasive procedure. There were 120 men and 184 women with a mean age of 62.4 years, ranging from 19 to 93 years.

The article concluded that the “MITLIF approach seems to provide both short- and long-term statistically significant outcome improvements in patients experiencing debilitating low back pain. In addition, long-term benefits observed in this study include a reduced rate of adjacent segment disease requiring reoperation while providing high rates of fusion and a low rate of complications. From a clinical prospective these patients show an extremely high rate of satisfaction in the treatment of their chronic back pain disorders. In fact, the majority of these patients are completely pain free and have returned to work or activities of daily living full time. The MITLIF procedure is a highly cost-effective approach for addressing a costly and debilitating medical condition.”

Governor Brown has now signed AB 1035 into law. The new law provides an extension for dependents of deceased firefighters and peace officers to file for workers’ compensation death benefits who died from cancer; tuberculosis; Methicillin-resistant staphylococcus aureus (MRSA) skin infections; or bloodborne infectious disease. This extension is for up to 420 weeks from the date of injury, or slightly more than 8 years, but in no case more than one year from the date of death. This extension will sunset on January 1, 2019. This bill further declares the need for the Administrative Director of the Division of Workers’ Compensation (DWC) to study mortality rates prior to extending or allowing the extension to sunset.

Governor Brown issued the following statement as he signed the new law. “Last year, in vetoing AB 1373, I expressed concern in enacting legislation prior to the availability of more research and fiscal data on the risks of death from cancer and other job related diseases on firefighters. The results of the National Institute for Occupational Safety and Health study on mortality and cancer incidence on US firefighters are now available for review and provide better data on the fiscal impacts of this bill. Importantly, a review of this data anticipates that fewer than 20 cases a year throughout the state would be affected if the provisions only apply to diseases diagnosed during active service.”

“Therefore, I am signing AB 1035 to extend the time period to file a claim for workers’ compensation benefits from 240 weeks to 420 weeks after date of injury, and to require a claim to be filed within one year after the date of death. The bill has been drafted to apply only if the date of injury is during active service, as defined in Section 5412 of the Labor Code, and also contains a sunset date to allow us to examine additional data collected by the Division of Workers’ Compensation before reauthorizing the statute.”