Category: Daily News

Challenges to the Constitutionality of Worker’ Compensation programs, or components of such programs seems to be under unrelenting pressure from lawyers seeking to have courts declare the program to be unconstitutional under state or federal provisions.

California will be facing a ruling on June 29 in a case filed by Dr. Eduardo Anguizola – who is facing multiple counts of insurance fraud filed by Orange County prosecutors. He has filed a federal lawsuit that claims SB 1160 and Labor Code 4615, the anti-fraud law that took effect January 1, violates his rights to due process of law and to make a contract and to hire and pay his criminal defense attorneys, among other arguments.

His request for a preliminary injunction halting the provisions of SB 1160 is scheduled for hearing on June 29 before Federal Judge George H. Wu. Judge Wu previously ruled on the constitutional challenge to the re-instatement of the $100 lien filing fee as a result of SB 863 several years ago in the Angelotti Chiropractic case.

In 2015 the California Court of Appeal upheld the constitutionality of the IMR process in the publilshed case of Stevens v WCAB.

And earlier this year Daniel Ramirez also lost his constitutional challenge of the IRM/UR process. Ramirez wanted discovery to determine whether the doctor performing the independent medical review was biased or had a conflict of interest. His constitutional challenges were rejected in the published case of Ramirez v WCAB. On the constitutional challenges, the Court affirmed the prior decision of Stevens v. Workers’ Comp. Appeals Bd. (2015) 241 Cal.App.4th 1074 on these issues.

And there seems to be an abundance of such constitutional challenges across the nation.

This week the Pennsylvania Supreme Court agreed with the Mary Ann Protz v WCAB constitutional challenge to the AMA Guides. Protz argued that the Pennsylvania General Assembly unconstitutionally delegated to the AMA the authority to establish criteria for evaluating permanent impairment. The Supreme court held that it does.

And there are numerous other examples.

In 2016 the Oklahoma Supreme Court dealt several blows to the state’s 2013 workers’ comp overhaul by finding unconstitutional a provision of the Oklahoma Administrative Workers’ Compensation Act pertaining to the deferral of permanent partial disability benefits. In Maxwell v. Sprint PCS, (Case Number: 113898), which is representative of a class of several companion cases, the Court ruled that “scheduled members are exempt from the AMA Guides under the Administrative Workers’ Compensation Act,” and that the permanent partial disability deferral provision of statute “is an unconstitutional violation of due process.” In state statute, the term “scheduled member” includes body parts such as arms, legs, toes, fingers, etc.

Last month Circuit Judge Pat Ballard found two provisions of the Alabama workers’ compensation law – the $220 a week cap in compensation for injured workers, and the 15 percent cap on attorneys fees – unconstitutional in the case of Nora Clower vs. CVS Caremark. And because one or more provisions of the law were found unconstitutional, the entire act was struck down. Ballard stayed the order for 120 days to give the Alabama Legislature time to act.

And of course Florida has had an array of constitutional problems. A recent Stetson Law Review article points out that In over three-quarters of a century many constitutional challenges to the Florida Act have arisen. The three main arguments have invariably implicated the rights to equal protection, due process, and access to courts. And last year The state of Florida’s workers’ compensation system suffered another blow when the Florida Supreme Court ruled another part of the state’s workers’ compensation insurance system is unconstitutional.

In a 5-2 decision in the case of Bradley Westphal v City of St. Petersburg the Florida Supreme Court recently struck down a law limiting payments to injured workers for two years, instead ordering that the payments for injured workers should last five years.

On June 29 California will discover if it can withstand its third constitutional challenge to workers’ compensation law in the same number of years.

The firm of Laughlin, Falbo, Levy & Moresi LLP announced the passing of the founding partner, Michael William Laughlin. He was surrounded by his loving family when he passed away on Saturday June 17.

In addition to being a pillar of the legal community, his colleagues say Mike will forever be remembered with the highest regard as a family man, friend, partner, mentor, coach and competitor to many people. He will be greatly missed every day.

A funeral mass will be held on Friday, June 23 at 12:30 p.m. at St. Isabella’s Church (One Trinity Way, San Rafael, CA 94903), after which there will be a celebration of life to be held at Stonetree Golf Club (9 Stonetree Ln, Novato, CA 94945) from 2-6 p.m.

The family has suggested that in lieu of flowers, please consider donations to the Timothy Murphy School in San Rafael.

Mr. Laughlin obtained his undergraduate degree in 1960 from the University of Notre Dame and was a 1963 graduate of the Indiana University School of Law. He has been a member of the California Bar since 1965.

Julius Young provided more information on the WorkersCompZone website.

He tells us that Mike retired a few years ago, but was one of the leading California workers’ comp defense attorneys for decades. Earlier in his career he practiced in San Francisco with the firm Sedgwick, Detert, Moran and Arnold.

Around 1985 he and and a number of his partners left and formed Laughlin, Falbo, Levy and Moresi. Over the years they grew the Laughlin firm to where it now has 160 attorneys and a statewide presence.

Sedgwick, Detert and the Laughlin firm firm became sort of a farm team for leaders in the industry, as former WCAB Commissioners Gordon Taylor and Alfonso Moresi practiced with Mike. Current WCAB Commissioner Jose Razo later joined that firm before his appointment to the board.

Boxer & Gerson LLP law partner Michael Gerson summed up Mike Laughlin this way:

“He was a pleasure to work with and a true gentleman. He was a resolver and not a churner. He was compassionate and concerned with our clients.”

His passing is a reminder that some of the most effective attorney advocates are not always the ones with a blustery, take-no-prisoners approach.

In 2015 the Court of Appeal upheld the constitutionality of the IMR process in one of the most closely watched cases in California workers’ compensation. The published case of Stevens v WCAB involved Frances Stevens who tripped and broke her foot as she carried boxes of magazines. She was diagnosed with chronic or complex regional pain syndrome and claims to be mostly confined to a wheelchair and was awarded total permanent disability.

For several years she had the assistance of a home health aide. In late 2012, the aide was injured. This led the PTP to submit an RFA to SCIF for a replacement aide which was submitted to UR and denied. The request was also denied after the IMR process. Stevens appealed the IMR decision, but the WCJ found there was no provision for a reversal since the labor code provides only limited circumstances upon which IMR can be reversed.

Stevens challenged constitutionality of the IMR process. In response the WCJ said “section 3.5 of article III of the Constitution withholds from administrative agencies the power to determine the constitutional validity of any statute.” The WCAB denied reconsideration and agreed that it could not rule on the constitutional issue saying “In sum, for purposes of appeal to the WCAB it does not matter whether the reasons given for an IMR determination support the determination unless the appealing party proves one or more of five grounds for appeal listed by the Legislature in section 4610(h) by clear and convincing evidence. Applicant did not do that in this case.

The First District Court of appeal concluded “that her state constitutional challenges fail because the Legislature has plenary powers over the workers’ compensation system under article XIV, section 4 of the state Constitution (Section 4). And we conclude that her federal due process challenge fails because California’s scheme for evaluating workers’ treatment requests is fundamentally fair and affords workers sufficient opportunities to present evidence and be heard.”

Although Stevens may have lost the battle, she may not have lost the war since she was given a second chance to prove her case on the merits. The Court of Appeal stated “we also conclude that the Workers’ Compensation Appeals Board (the Board) misunderstood its statutory authority in one respect when it reviewed Stevens’s appeal. The Board concluded that it was unable to review the portion of the IMR determination that found, “Medical treatment does not include . . . personal care given by home health aides . . . when this is the only care needed.” Under the 2013 reforms, however, the Board is empowered to review an IMR decision to consider whether care was denied without authority because the care is authorized under the MTUS. (§ 4610.6, subd. (h)(1) & (5).) We therefore remand this matter to the Board to consider whether Stevens’s request for a home health aide was denied without authority.”

And indeed the WCAB recently ruled in its Opinion and Decision After Remittitur “that the 2009 Guideline is unlawful and invalid since it fails to address the medical treatment in the form of personal home care services sought by Ms. Stevens.”

For that reason it concluded “that the Independent Medical Review (IMR) determination upholding denial of the request for a home health aide was ‘adopted without authority’ by the Administrative Director of the Division of Workers’ Compensation because the portion of the 2009 Medical Treatment Utilization Schedule (hereinafter “MTUS”) Chronic Pain Medical Treatment Guideline (hereinafter “2009 Guideline”) applied in this case provides that housekeeping and personal care services are not forms of medical treatment. This provision is contrary to long standing workers’ compensation law, which recognizes that such types of non-medical care are forms of medical treatment that may be reasonably required to cure or relieve the effects of an industrial injury.”

In arriving at this conclusion the WCAB interpreted the language of the Court of Appeal in the published decision as authorizing the WCAB to have “considerable” authority over IMR. “Thus, the Court held that the Appeals Board has considerable authority to review both factual and legal questions in its determination of whether an IMR determination was adopted without authority or based on a plainly erroneous fact not subject to expert opinions. We conclude that the 2009 Guideline is contrary to California law and the IMR determination that relied on it was therefore adopted without authority.”

The Findings and Order of the WCJ that issued on May 27, 2014 was rescinded, and that this matter was returned to the trial level for further proceedings in accordance with this decision.

Harbor Health Systems, a One Call Care Management company, announced that it is one of the first companies to receive approval from the California Department of Workers’ Compensation to offer telemedicine through its medical provider networks (MPNs).

“This approval is a positive step forward in improving access to high quality care for injured workers,” said Linda Lane, president of Harbor Health Systems.

“We can now offer the capability to patients and to payers to search the Harborsys MPN provider directory and find high performing physicians who offer telemedicine, or to be directed to these physicians by our Medical Access Assistant staff. The telemedicine capability and the ability to find physicians who offer this service is especially important in rural areas, as well as to make care immediately accessible twenty-four hours a day, 365 days a year.”

Through the video teleconferencing capabilities enabled by Harbor’s telemedicine partners, injured workers gain immediate access to treatment, eliminating unnecessary costs and delays.

For the employer, using telemedicine results in less downtime and reduces transportation costs. Injured employees who find it difficult to travel to the doctor’s office can now obtain qualified consultations from their home or worksite, keeping the treatment plan on track and moving forward. Improved patient engagement and access to expedited and efficient care reduces the risk of legal actions that drive up claim costs.

Harbor’s MPN networks cover approximately 2 million employees in the state of California and Harbor plans to roll out the new telemedicine product across its book of business. GENEX and Arissa Cost Strategies are two Harbor clients already reaping the rewards of the new offering.

“Telemedicine capabilities are important to our ability to provide superior management of care for workers’ compensation injuries,” noted Kathleen Torres, President of Arissa Cost Strategies. “With telemedicine, the injured employee receives immediate response, leading to immediate care, which expedites care and resolution for their injury.”

“Paired with case management, telemedicine allows for early intervention and a stronger interdisciplinary care approach,” said Ron Skrocki, senior vice president, product management and development at Genex Services. “This leads to better communication and adherence to the treatment plan, and improved patient compliance, which results in a safe and efficient return for the injured worker.”

Workers’ compensation medical treatment requests must be supported by scientifically based evidence published in peer reviewed literature, literally hundreds if not thousands of publications. So how might a busy practitioner keep up with this literature?

U.S. researchers, reporting in the Annals of Internal Medicine, say that “smart” search programs can ease the process of systematically reviewing new medical research, a key step in getting the best practices from laboratories to doctors’ offices.

The Institute of Medicine (now the National Academy of Medicine) says clinical practice guidelines should be based on a systematic review of the evidence, lead author Dr. Paul Shekelle from RAND Corporation in Santa Monica, California, told Reuters Health by email, and reported in the story by Reuters.

Systematic reviews are a cornerstone of evidence-based care and a necessary foundation for care recommendations to be labeled clinical practice guidelines. However, they become outdated relatively quickly and require substantial resources to maintain relevance. One particularly time-consuming task is updating the search to identify relevant articles published since the last search.

Typically, researchers and their assistants perform computer searches to identify anywhere from a few to thousands of new research studies, then they determine which ones are relevant and assemble the information into updated guidelines and recommendations.

Shekelle and colleagues thought machines could do more of the job and do it faster, so they compared machine-learning methods with the standard search methods for identifying new information.

They tested the idea on three health conditions: gout, low bone density and osteoarthritis of the knee. The smart search program “learned” which key terms to look for by analyzing words from studies that were included in prior reviews on each topic.

In all three cases, computers – provided only with the titles and summaries of articles included in previous reviews – reduced the number of articles researchers had to screen further by 67 to 83 percent, according to the results in Annals of Internal Medicine.

“Machine learning methods are very promising as a way to reduce the amount of time and effort for the literature search, which in turn should make it easier to update the systematic review, which in turn can facilitate keeping clinical practice guidelines up to date,” Shekelle said.

The approach would “shorten the time from completion of research studies to adoption of effective treatments in clinical practice,” said Dr. Alfonso Iorio from McMaster University in Hamilton, Ontario, Canada, who coauthored an editorial accompanying the report.

“In the near future, artificial intelligence will also be used to match to individual need with the best available health care intervention – one necessary step to get this is proper classification on existing and newly generated knowledge,” Iorio said.