Author: WorkCompAcademy

The Workers’ Compensation Appeals Board has issued a notice of public hearing regarding proposed amendments to its Rules of Practice and Procedure. The public hearing is scheduled for 10 a.m. Tuesday, April 16 in the Santa Barbara Room, Basement Level, of the Hiram Johnson State Office Building, 455 Golden Gate Ave., San Francisco, CA 94102. Members of the public may also submit written comment on the proposed Rules amendments until 5 p.m. that day.

These changes are largely being proposed in light of Senate Bill 863 (Stats. 2012, ch. 363 [SB 863].)

The WCAB’s notice of the proposed rulemaking, the text of the proposed regulations, and the initial statement of reasons have been posted online.

Public comment will begin promptly at 10:00 a.m. and will conclude when the last speaker has finished his or her presentation. Testimony will be limited to 10 minutes per speaker and should be specific to the proposed regulations. If public comment concludes before the Noon recess, no afternoon session will be held. Although equal weight will be accorded to oral and written comments, the WCAB prefers written comments to oral testimony and prefers written comments submitted by e-mail. If written comments are submitted by the deadline of April 16 no later than 5 p.m., it is not necessary to present oral testimony at the public hearing.

Comments may be submitted by e-mail to WCABRules@dir.ca.gov or they may be mailed to: Workers’ Compensation Appeals Board, Attention: Annette Gabrielli, Regulations Coordinator, P.O. Box 429459, San Francisco CA 94142-9459. Comments also may be submitted by facsimile (Fax) at 1-415-703-4549.

The WCAB will consider all timely public comments and it encourages all interested members of the workers’ compensation community to participate in this important process.

After reviewing the proposed changes there are a few notable comments. “Nothing in the WCAB’s current Rules expressly provides that its provisions are severable and that if any provision (section or subdivision) is declared invalid, then other provisions are not affected. Amending Rule 10300 to add proposed subdivision (b) would expressly declare this intention. Amending Rule 10300 to add proposed subdivision (b) would expressly declare this intention. This is consistent with uncodified provisions of S.B. 863.”

The WCAB says “this is a strictly precautionary provision. Some workers’ compensation commentators have suggested the possibility of constitutional challenges to certain provisions of SB 863. Therefore, in the event an appellate court declares that any WCAB Rule or a statutory provision on which it is based is unconstitutional, this proposed change to Rule 10300 will minimize the impact of any such declaration. It will also minimize the impact of any appellate declaration that a provision of a WCAB Rule is inconsistent with statute or in excess of the WCAB’s authority.”

In the case of Martin Trapero v North American Pneumatics: State Compensation Insurance Fund, Trapero, sustained an admitted industrial injury on March 3, 2000. The parties agreed to use multiple AMEs to resolve the case, including an agreement to use Dr. Thompson as their AME in orthopedics. Dr. Thompson examined applicant and issued a report dated June 19,2008. On December 29, 2009, applicant’s attorney noticed Dr. Thompson’s deposition for January 11, 2010. Approximately five to eight minutes before the deposition began, applicant’s attorney handed defense counsel a vocational evaluation report dated January 5, 2010, prepared by Mr. Mark Remas. The report was presented to Dr. Thompson after the deposition began. At page 23 of the deposition, when applicant’s attorney attempted to ask Dr. Thompson to “take a look” at the vocational evaluation report and “perform a cursory review,” defense counsel interjected: “I object to that.”

Based upon applicant’s attorney’s alleged violation of section 4062.3, defendant filed a petition to strike Dr. Thompson’s report and deposition. The matter proceeded to hearing on March 28, 2011. The workers’ compensation judge concluded that there was no violation of Labor Code section 4062.3 when applicant’s attorney handed a recently-procured vocational evaluation report to defense counsel a few minutes before the deposition of the Agreed Medical Evaluator was to begin.

The State Compensation Insurance Fund (SCIF), filed a timely petition for reconsideration. SCIF contended that: (1) applicant’s attorney’s “hand delivery method” of service was not a legally acceptable method of service intended by the Legislature under section 4062.3; (2) the purpose of section 4062.3 is to protect the impartiality of the medical-legal process, and a party who initiates communication with an AME with only a few minutes prior notice to the opposing party may be perceived by the AME as attempting to influence the process; and (3) to interpret the statute in such a way as to permit applicant’s attorney’s “subsequent communication” would be to violate the principles of statutory construction.

The WCAB panel agreed with the SCIF and reversed and returned the matter for further proceedings.

“The vocational report falls within the definition of “information” described in section 4062.3. That is, the vocational report is a “nonmedical record relevant to determination of a medical issue” under section 4062.3(a)(2). Furthermore, subdivision (c) states that if an AME is selected, “as part of their agreement on an evaluator, the parties shall agree on what information is to be provided’ to the AME.”

“Here, in springing the vocational report on defense counsel when the AME was about to be deposed, applicant’s attorney denied defense counsel the opportunity to determine if this new “information” was something that he would agree to provide to the AME. Section 4062.3(c), in stating that the “information” that is to be provided to the AME must be agreed upon by the parties “as part of their agreement on an evaluator,” makes clear that providing “information” to the AME is nothing casual, but goes to the heart of the AME agreement. If the “information” is not agreed to, the AME is not agreed to either. Defense counsel objected to the “information” during the AME’s deposition, so it was not “information” that defense counsel agreed to, and it should not have been provided to the AME at that time.”

“In reaching this conclusion, we are mindful that the impartiality and appearance of impartiality of the medical evaluator, whether an AME or PQME, is paramount. (See Alvarez v. Workers’ Comp Appeals Bd. (2010) 187 Cal.App 4th 575, 589 [75 Cal.Comp.Cases 817, 826].)”

Each year the California Chamber of Commerce releases a list of “job killer” bills to identify legislation that will decimate economic and job growth in California. The CalChamber will track the bills throughout the rest of the legislative session and work to educate legislators about the serious consequences these bills will have on the state. Last year, 32 bills identified as “job killers” were introduced in the California Legislature. These “job killers” had something for every business and industry in California to hate – automatic minimum wage increases, increased employer liability, new barriers to economic development, more regulations and higher taxes on business.

In 2012, the California Chamber claims to have stopped 28 of these 32 “job killers.” In 2013 they may have a tougher job, facing now a super majority of democrats in both houses of the state legislature. Many of last years bills were defeated by veto of Governor Brown. This year his veto can be over come by the legislature.

The CalChamber has identified the first “job killer” bill of the year. SB 626 (Beall; D-San Jose) severely undercuts the recent balanced workers’ compensation reform deal (S.B. 863) agreed to by labor unions and employers. The bill proposes dramatic cost increases for California employers and would leave them worse off than before the reforms of last year were enacted. SB 626 eliminates the entire balance of the deal and would erase hundreds of millions of dollars in projected savings. Specifically, SB 626 would roll back reforms dealing with timely, high-quality medical treatment and a more predictable – and less litigious – permanent disability system.

The CalChamber claims that “not only will employers face pre-reform escalating costs if this bill is enacted but they will also be burdened by an additional $1 billion in benefit increases with no expectation that this cost will be offset by system savings.”

If passed into law, “SB 626 is a giant step backwards for California employers during the current fragile economic recovery. Additionally, SB 626 reverses a bipartisan labor-employer compromise. These types of agreements between key stakeholders that enjoy overwhelming bipartisan approval should be encouraged and protected, not attacked and diluted.”

• It eliminates the cornerstone cost-saving provision contained in SB 863 -independent medical review.  Under SB 626, independent medical review decisions would be fully appealable to the Workers’ Compensation Appeals Board, taking medical necessity decisions away from physicians and putting them back in the hands of judges. It would also result in treatment delays for injured workers. The savings associated with independent medical review are estimated at around $400 million.
• It repeals a provision in SB 863 that eliminates impairment ratings for psychiatric add-ons in some, but not all, cases.  Numerous data driven analyses demonstrated applicant attorneys had excessively abused this add-on to artificially inflate permanent disability ratings.
• It repeals a provision in SB 863 that prohibits a chiropractor from being a primary treating physician once the maximum number of chiropractic treatments have been received.
• It unnecessarily limits utilization review and independent medical review by requiring that the reviewing physician hold the same license as the physician requesting treatment. Current law requires reviewers to be competent to evaluate the specific clinical issues involved in the medical treatment and utilize relevant, evidence-based medical treatment guidelines, which are not state-specific.

Only about a third of patients surveyed at one U.S. medical center said their doctors told them about the possible risks of a CT scan, such as radiation exposure, a new study finds.According to the summary in Reuters Health, researchers, who published their findings in JAMA Internal Medicine on Monday, also found that most patients thought their doctors made the final decision to have the scans.

“I think that sounds pretty consistent of what my experience would be as a patient, physician and with family members,” said Dr. Howard Forman, professor of diagnostic radiology and public health at the Yale School of Public Health in New Haven, Connecticut, who was not involved with the new study.The new study jibes with previous research that found people are unaware of the radiation risks posed by CT scans.

CT scans are high-powered X-rays that provide clearer images but expose patients to between ten and 100 times as much radiation as a normal head or chest X-ray.

For the new study, Dr. Tanner Caverly, from the University of Colorado Anschutz Medical Campus in Aurora, and colleagues surveyed 286 patients getting a CT scan at the Denver Veterans Affairs Medical Center from November through December 2011. Of the 271 patients that returned their surveys, 35 percent said they discussed the risks of a CT scan with their doctors and 62 percent believed the final decision to have the scan was made by the doctors. Only 17 percent of the patients said they were involved in the decision-making process and discussed risks and benefits with their doctors. But even when doctors were discussing the potential risks, their patients ended up being no more informed than people who didn’t talk with their healthcare providers.

“It’s likely that many physicians also do not know the risks, and so it’s not surprising that even when there are discussions with patients about risks and benefits of the procedure, patients clearly still do not understand the true risk of radiation exposure,” wrote Dr. Patrick O’Malley, a deputy editor of the journal, in an note accompanying the new study.

One study from the National Cancer Institute estimated there would be about 29,000 future cancers related to scans done in 2007 alone. That year, Americans had about 72 million total CT scans, which can cost from a few hundred dollars to several thousand dollars.

Forman told Reuters Health there are a few ways to address the problem of patients not being told about the risks of CT scans, including educating doctors and empowering patients to ask questions. “I think we need to empower healthcare consumers/patients much more to have complete understanding and control of their care and its delivery. I think physicians are sometimes offended by patients who ask too many question and I think that’s something we need to change,” Forman said.

In an article published by the editorial board of the Sacramento Bee, the newspaper stated that “professional athletes claiming cumulative injuries incurred during the course of their careers have been abusing the California workers’ compensation system.” That is a notable statement by a typically liberal newspaper which may signal the political appetite in the Sacramento legislature for the elimination of these claims by passage of A.B. 1309.

In an article last week, Los Angeles Times reporter Marc Lifsher described how retired athletes tap into California’s generous workers’ compensation system to collect six-figure settlements for cumulative trauma, even though they played only a fraction of their games in California, or may never have played here. Many of them are big-name players who earned huge dollars. Others attained neither fame nor fortune.

The Bee article also notes that the California Insurance Guarantee Association is the entity that pays workers’ compensation claims when workers’ comp insurance companies become insolvent. California employers – not just professional sports teams – pay into the California Insurance Guarantee Association. In a letter to Assemblyman Henry T. Perea, D-Fresno, the association in December said that California residents account for only 373 of its 1,873 claims from professional athletes. The number of claims from retired athletes is growing at an alarming rate – 34 per month, as of December. The association had to add four claims adjusters to handle the influx of athletes’ claims.

The CIGA letter cited several issues that should alarm lawmakers, employers and workers. Athletes who played only one day in California, or suited up but sat on the bench, can receive compensation from California’s workers’ comp system. Athletes can file claims whether or not they were injured on a California field or court. The letter notes that players file claims in their home states and receive compensation. Because of the laxity of California’s law, California judges can award full benefits to out-of-state players. Adding to the complexity, the letter noted, “an athlete who last played 20 or 30 years ago is not barred from filing a claim today.”

The Bee article goes on to say that “California cannot afford to be the bank for out-of-state athletes and their lawyers. The guarantee association’s deficit hovers at $2 billion. California employers – not just sports teams – paid $78 million toward reducing that deficit last year. Since 2002, CIGA has paid $42 million in claims to professional athletes. The cost of processing the claims was $1 million a year. The largest number of claims come from Texas and Florida, states favored by wealthy athletes because, unlike California, they impose no state income tax.”

Assembly member Perea has proposed Assembly Bill 1309, which would deny California benefits to pro baseball, basketball, football, hockey and soccer players whose teams are not based in California and who came here only occasionally for games.

The Bee says that “The fix seems simple – though in the Capitol, nothing ever is easy. California’s system should take care of injured athletes who played the bulk of their time California, quickly and fairly. But if they played for teams in Texas, Florida, or any other state, those states need to take responsibility.”