Category: Daily News

The DWC will implement a new online panel process for represented initial panel requests on October 1, 2015. DWC will no longer accept or process paper submissions postmarked after September 3, 2015. The new process requires parties in a represented case to submit initial QME panel requests online and immediately receive a QME panel. The requesting party will then serve the panel request form, any required documentation and the QME panel on all parties with a proof of service.

“Our goal for the new online process is to further reduce delays. In most cases the QME panel will issue immediately, allowing the injured worker to schedule an exam with a QME more quickly,” said Christine Baker, Director of the Department of Industrial Relations (DIR). DWC is a division of DIR.

The DWC has posted an online QME Form 106 Panel Request training video and FAQs on the Medical Unit website. The video demonstration details the way in which represented initial panel requests will be submitted using the new online system.

“I encourage attorneys and claims administrators to view the training video to see how easy the new system will be to use and to become familiar with the process before October 1, 2015,” said Destie Overpeck, Administrative Director of DWC.

The notices of rulemaking, text of the regulations, and the initial statements of reasons can be found at on the DWC rulemaking page. The regulations are pending final review with the Office of Administrative Law (OAL).

Continuous updates about the division’s activities are available by subscribing to the DWC Newsline. QME specific information, which includes new training materials, is also available on the DWC Medical Unit website.

The DWC has issued a notice of public hearing for the Medical Treatment Utilization Schedule (MTUS) proposed regulations. The proposed rulemaking updates the Chronic Pain Medical Treatment Guidelines and adopts Opioids Treatment Guidelines to the MTUS. A public hearing on the proposed regulations has been scheduled at 10 a.m., September 1, in the auditorium of the Elihu Harris Building, 1515 Clay Street in Oakland. Members of the public may also submit written comments on the regulations until 5 p.m. that day.

“California continues to be on the forefront of evidence-based medicine to treat injured workers, and these regulations will help workers obtain appropriate care,” said Christine Baker, Director of the Department of Industrial Relations (DIR). DWC is a division of DIR.

The proposed Chronic Pain Medical Treatment Guidelines are based on a reformatted version of the April 6, 2015 version of the Work Loss Data Institute’s Official Disability Guidelines (ODG) Treatment in Workers’ Compensation – Pain (Chronic) chapter. This Guideline is an amazing 1062 pages in length and lists typical chronic pain treatment possibilities alphabetically. For example, on page 40 the Guideline lists “Cannabinoids.”  As with the previous guideline, this “treatment” is “Not Recommended for Pain” thus the DWC is sticking to its prior finding on this issue.

The proposed Opioids Treatment Guidelines were developed by DWC based on evidence-based guidelines available as of April 2014 and supplemented with high-level evidence from high-quality studies. The Opioids Treatment Guidelines are divided into two parts: Part 1 contains the executive summary, abbreviated treatment protocols, and complete recommendations, while Part 2 contains supplemental information. Much of the Opioids Treatment Guideline has stronger language than before, with the word “may” appearing infrequently seeming to make tools like use of the CURES database and urine testing mandatory.

“DWC is concerned about workers who suffer when chronic pain is inadequately treated or when opioid medications are improperly managed,” said DWC Executive Medical Director Dr. Rupali Das. “These are separate, but often related, issues of major public health concern that can lead to devastating consequences, including prolonged disability and delayed recovery.” She added that “we have proposed two complimentary guidelines that provide evidence-based best practices for multidisciplinary approaches to managing chronic pain as well as factors to consider for safe and effective prescribing of opioids for acute, subacute, perioperative, and chronic pain.”

The proposed changes to the MTUS Chronic Pain Medical Treatment Guidelines are set forth in section 9792.24.2 of Title 8 of the California Code of Regulations and the proposed addition of the MTUS Opioids Treatment Guidelines is set forth in section 9792.24.4 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 statement of reasons can be found on the MTUS rulemaking page.

Governor Brown has signed a new labor code that requires that the provisions of state law that govern employment, including the Labor Code, the Unemployment Insurance Code, and the California Fair Employment and Housing Act, would require a cheerleader who is utilized by a California-based professional sports team during its exhibitions, events, or games to be deemed an employee.

The new law, Labor Code section 2754, will only apply to a “California-based team” which means by the statutory definition “a team that plays a majority of its home games in California.” It also only applies to a “Professional sports team” which means a team at either a minor or major league level in the sport of baseball, basketball, football, ice hockey, or soccer.

In 2014, the Oakland Raiders were sued by a group of current and former cheerleaders who alleged that the Raiders refused to pay minimum wage or overtime, made unlawful deductions, and also refused to provide meal and rest breaks. According to the filing, Raiderettes (the name of the cheerleading squad) were paid a flat rate of $125 per game, irrespective of hours worked. The filing also noted mandatory charity appearances for the Raiderettes, for which no payment at all was received by the cheerleaders. Similar lawsuits were filed against the Tampa Bay Buccaneers, the New York Jets, the Buffalo Bills, and the Cincinnati Bengals.

Attorneys for the Raiderettes and the team agreed to a complex settlement formula that will cover any cheerleader who has worked for the team since the 2010-11 season. Cheerleaders will receive $2,500 in back pay and penalties for the 2013-14 season, plus $6,000 in back pay and penalties for each of the three seasons before that.

A year ago, the Raiders tacitly admitted their sins and offered their new cheerleading squad a contract that nearly tripled their pay. Instead of earning only $125 per game in a single paycheck delivered at the end of the season, Raiderettes will earn $9 an hour, plus overtime, for the estimated 350 hours each cheerleader puts in each year, including rehearsals, practices and mandatory community and charity appearances. Their annual compensation will rise from about $1,250 to about $3,200. Raiderettes will also be reimbursed for business expenses and mileage, which they had to cover themselves before. They will also receive paychecks every two weeks, per state law, rather than one lump sum at season’s end.

Teams exercise considerable control over cheerleaders. They are required to attend and participate in practices, mandatory rehearsals, fittings, preparations, drills, photo sessions, meetings, and workouts. Cheerleaders are required to finance their business expenditures, including travel and investment in their physical appearance by purchasing required cosmetics, in the normal course of their cheerleading duties.

Cheer athletes practice their routines at least 2 to 5 times a week. They must get physically fit in order to carry out intense dance routines and stunts in cheerleading. Cheerleaders are featured prominently in advertising and game-day coverage, especially leading in and out of every commercial break on the nationally broadcasted television programs. Prior to each sports season, selected cheerleaders have training camps and practice, photo shoots and swimsuit calendars obligations. Throughout the year, they have non-game day annual responsibilities, such as guest appearances at schools, charity events, or conferences

Proponents of the law argued that under the new law, professional sport cheerleaders would be guaranteed a legal wage for attending and participating in team practices, rehearsals, preparations, meetings and required workouts. In addition, they would also be covered for all required appearances at corporate, community and charity events. There was no official opposition to the new law included in the legislative record.

A new poll conducted by Employers Insurance found that more than one in 10 small business owners (13 percent) are concerned that one of their employees would commit workers’ compensation fraud by faking an injury or illness in order to collect benefits. It also found that nearly one-quarter of small business owners (24 percent) have installed surveillance cameras to monitor employees on the job and that one in five (21 percent) business owners feel unprepared or unsure of their ability to identify workers’ compensation fraud. .

The Insurance Journal reports that Ranney Pageler, vice president of fraud investigations at Employers, said the message of protecting your business from fraud resonates more loudly with those who have already been ripped off and seen their worker’s comp premiums rise. “You may have 90 percent of policyholders who aren’t paying attention,” he said, adding that for those who have been burned, “Boy, that is their hot button.” It’s a hot button for some agents too.

In the last 18 months Employers had three cases in California where workers’ comp fraud was proven because of videos, which showed the workers staging their injuries, according to Pageler. Two cases were in restaurant kitchens, and the other was in a warehouse, he said. The videos show the workers doing things like rearranging furniture or objects, kicking the objects, then screaming out in pain and getting hauled off in an ambulance. “That proves they weren’t injured, that they staged an accident,” he said.

By his account all three cases were investigated, criminal complaints were filed and convictions resulted in merely a matter of months – hyper-speed for the state’s unwieldy system. “All were decided well within a calendar year,” Pageler said. “What that (video) did was keep that claim from ever showing up on the policyholder’s experience rating.”

The reason there was no impact on the rating, or a corresponding premium increase, was because the cases were handled quickly, and total fraud was easily proved, he said. Unlike in partial fraud, a total fraud claim can be entirely removed retroactively with no impact to the rating.

For the survey, interviews were completed with a nationally representative sample of 501 small businesses that have fewer than 100 employees. Data were weighted by number of employees, region and industry to reflect the proportion of small businesses in the United States. The margin of error is +/-4.4%. Fieldwork was conducted from May 14 and 29, 2015.

General Reinsurance issued an excess insurance policy to San Francisco Bay Area Rapid Transit District (“BART”), which is a self-insured employer for workers’ compensation. This dispute arises out of a multiple myeloma workers’ compensation claim of a former BART employee, Michael Gonsolin who worked as a BART police officer. BART settled the case with Gonsolin at the WCAB which entered a Partial Order Approving Compromise and Release with Open Medical Award. One week after the settlement was approved BART sent a Notice of Claim to General Reinsurance, its excess carrier asking them to foot part of the bill.

BART contended that General Reinsurance was obligated to pay the claim because, as stipulated by the parties and approved by the WCAB, Gonsolin’s injury occurred during the policy period, and BART has reached its retention limit triggering General Reinsurance’s coverage. General Reinsurance contends that it has no obligation to pay because Gonsolin’s injury in fact occurred after its policy had ended.

In Phase One of the federal court trial, the Court had to decide whether the parties can litigate the date of injury; that is, whether for purposes of the application of the excess policy, General Reinsurance is bound by the decision of the WCAB. In the case of BART v General Reinsurance (Case No. 14-cv-01866-J) the Court held that it indeed had jurisdiction to adjudicate the correct date of injury, and that General Insurance was not bound by any determination at the WCAB.

Issue preclusion may operate as a bar to litigation of an issue that was decided in an earlier administrative proceeding “if the agency, acting in a judicial capacity, resolved disputed issues of fact properly before it, in a proceeding in which the parties had an adequate opportunity to litigate the factual issues.” Issue preclusion does not apply here because General Reinsurance was not in privity with BART in the workers’ compensation proceedings.”Plainly, General Reinsurance was not a party to the earlier proceedings.”

Phase Two of this case is set for bench trial on 2/1/2016 08:30 AM before Magistrate Judge Jacqueline Scott Corley. Clearly this case points to the need for an employer to have a strategy that would involve and bind the excess carrier to the outcome of the underlying WCAB case in order to avoid the double bind that seems to be developing in this case.