Robert Gaona claimed industrial injury. He was evaluated by Dr. Sherry Mendelson, the agreed medical evaluator, who opined that he should be evaluated by a chronic pain specialist and recommended Dr. Lawrence R. Miller. Dr. Miller recommended “24 hours 7-day a week home care assistance.” His report was sent to Dr. Mendelson, who accepted his opinion and recommended that 24/7 care be provided.

Capital Builders later objected to the admissibility of Dr. Miller’s report. It then filed a petition to strike Dr. Mendelson’s reports and remove her as the AME in psychiatry pursuant to section 4062.3, subdivision (g). The petition alleged that there was no agreement to provide Dr. Miller’s report to the AME and that sending Dr. Miller’s report to Dr. Mendelson was an improper ex parte communication.

The WCJ denied Capital Builders’s petition to strike “without prejudice.”

Capital Builders petitioned for removal or in the alternative for reconsideration. The appeals board found the WCJ’s decision to be an interlocutory procedural order that was not a final order and was therefore not the proper subject of a petition for reconsideration. The appeals board thus dismissed the petition for reconsideration. The appeals board also found that Capital Builders did not show substantial prejudice or irreparable harm and therefore denied the removal petition.

The Court of Appeal issued a writ of review on July 18, 2016. Simultaneously, it requested briefing on whether the appeals board’s decision was a final order, whether the appeals board’s decision is reviewable by way of a writ of review, and whether the Alvarez decision’s implied conclusion regarding reviewability was correct.

The appeals board responded by underscoring that the WCJ’s order was “‘without prejudice,’” supporting the conclusion that it was an interim procedural decision. Gaona replied by agreeing that the WCJ’s order was an “interim procedural discovery order that ha[d] no impact on the rights and liabilities of either party . . . .”

Capital Builders filed a reply contending that all decisions of the appeals board are subject to review by the appellate courts.

The Court of Appeal agreed that the ruling was not a final order and not subject to appeal,and dismissed the petition for writ of review in the published case of Capitol Builders Hardware v WCAB (Gaona).

Principally, because workers’ compensation proceedings are to be expeditious, inexpensive, and “‘without encumbrance of any character,’” certain threshold issues, if finally determined, qualify as final orders. (Safeway, supra, 104 Cal.App.3d at p. 533.) Examples of threshold issues are whether the injury arises out of and in the course of employment, the territorial jurisdiction of the appeals board, the existence of an employment relationship or statute of limitations issues. (Safeway, supra, at p. 533 & fn. 4.) Such issues, if finally determined, “may avoid the necessity of further litigation” (Id. at p. 534) and hence render workers’ compensation litigation more expeditious and inexpensive.

The appeals board dismissed the petition for reconsideration and denied the petition for removal. Because these orders leave issues for future consideration (Lyon v. Goss (1942) 19 Cal.2d 659, 670), under the usual understanding of the concept of a final judgment or order, they are not final. (Maranian, supra, 81 Cal.App.4th at p. 1075.)

These orders also do not qualify as orders finally disposing of threshold issues in workers’ compensation practice. The underlying issue, i.e., whether the communication was or was not ex parte and therefore prohibited by subdivision (g) of section 4062.3, will not avoid the necessity of further litigation.

The Department of Industrial Relations (DIR) and its Division of Workers’ Compensation (DWC) posted a progress report today on the department’s continuing implementation of Independent Medical Review (IMR). IMR is the medical dispute resolution process that uses medical expertise to obtain consistent, evidence-based decisions and is one of the most important components of Senate Bill 863, Governor Brown’s landmark 2012 workers’ compensation reform.

“Independent Medical Review replaced a broken system where injured workers had to wait months for medical treatment while disputes over their care were litigated in court,” said California Labor and Workforce Development Agency Secretary David M. Lanier. “It’s encouraging to see the marked improvements in the timeliness of IMR decisions as a result of the state’s ongoing efforts to improve the system.”

The 2016 Independent Medical Review (IMR) Report charts the progress of IMR following its successful implementation in July 2013. In the second and third year of IMR, DIR and DWC took steps to reduce the average number of days to complete IMRs (from 56 days in late 2014 to 10 days by mid-2015), made enhancements to the program, and began to collect and analyze data to improve evidence-based medical decisions and outcomes for injured workers.

“The report shows IMR is working as intended,” said Christine Baker, Director of the Department of Industrial Relations (DIR). “There is an effective process to support appropriate care and stop inappropriate care. The data is showing where further improvements are needed, particularly regarding medical treatment guidelines and education, and we will continue to make adjustments.” Highlights of the report include the following:

System improvements: Working with IMR vendor Maximus, DIR has prioritized electronic filing of medical records, which led to faster resolutions of cases being reviewed and decided. Refinements in the data reporting also helped track disputed issues. DWC created a searchable database where it posts IMR decisions on its website. IMR application fees were reduced for cases that contain only pharmacy-related issues.

Who files for IMR: More than a quarter of IMR cases are filed in Los Angeles, with the Bay Area second with about 20 percent of the state total. Most injured workers with an IMR case are represented by an attorney. Ratios of case outcomes were almost identical for represented and unrepresented injured workers, with more than 80 percent of items and services deemed medically unnecessary by utilization review decision being upheld by IMR reviewers. The rate of treatment disputes overturned is between 9 and 11 percent.

What is in dispute: Pharmaceuticals were the most common treatment category in dispute (49 percent in 2015), with requests for rehabilitation services a distant second. The most requested drugs were opioids.

Further refinements: DWC is revising the IMR regulations to require electronic filing of applications and medical records, which will ensure the timeliness of decisions. The division has also launched an online physician continuing education course to improve understanding of the medical treatment utilization schedule (MTUS) and the IMR and utilization review (UR) processes.

“We continue to evaluate IMR decisions to ensure optimal care for patients, particularly with opioids,” said DWC Executive Medical Director Dr. Raymond Meister. “Helping physicians understand and follow the MTUS will improve results for injured workers.”

The Wall Street Journal reports that workplace injury is one of the main reasons doctors prescribe opioids, and dependence has become an expensive problem for those paying workers’ comp claims. Workers’ compensation payers spent $1.54 billion on opioids in 2015, or 13% of total U.S. spending on opioids, according to an analysis by CompPharma LLC.

Companies that handle claims for those injuries are trying new programs that push workers toward alternative pain treatments and that make it harder to get prescriptions for potentially addictive drugs – all intended to get people back to work without getting hooked, companies say.

Workers compensation brokers, insurers and administrators, such as Lockton Companies LLC., Liberty Mutual Group Inc. and Broadspire Services Inc. are using predictive algorithms and behavioral health screens to assess an individual’s risk for dependency, and steering some injured workers to alternate treatments such as over-the-counter drugs and mental-health counseling in lieu of prescription opioids. Such programs are aimed at preventing abuse, rather than treating it after the fact.

“We were not capturing opioids early enough. We were catching them once they were already at a high dosage,” said Jacob Lazarovic, chief medical officer of Broadspire, which administers workers comp claims for self-insured employers and insurers.

When an injured worker is first prescribed a drug like Fentanyl, Broadspire mails an opioid education packet to both patient and doctor, and tracks refills. Claims are reviewed after 10 weeks to check whether the patient is still taking opioids. Broadspire then works with the physician to make plans for weaning the patient off the drugs, he says.

In a test of the program, opioid prescriptions fell by 14% compared with a control group, the company says.

Insurer Travelers Cos. has developed an algorithm that analyzes thousands of claims and identifies the likelihood that an injured employee will develop chronic pain. Certain conditions, such as a prior case history of anxiety or depression, increase the chance that a patient will experience chronic pain, said Adam Seidner, Travelers’ medical director.

Those deemed at risk for chronic pain and addiction receive recommendations for alternate therapies, such as physical therapy and mental-health counseling, Dr. Seidner said.

Travelers says it cannot prevent a physician from prescribing opioids for at-risk patients, but it does urge care providers to follow a plan for alternate therapies and can refuse to authorize payment for a painkiller prescription, depending on state law.

Travelers says its algorithm, used in 20,000 cases in the past year, has helped reduce individual claim costs by as much as 50%. The predictive model and other efforts have helped reduce opioid prescriptions by 23% in the past 12 months among covered workers, according to the company.

To some extent, the industry is trying to solve a problem it helped create. Researchers found that about 65% to 85% of injured workers received narcotic painkillers under workers comp, according to an analysis of 264,000 claims by the Workers Compensation Research Institute.

Insurance broker Lockton has piloted a program in which injured workers undergo behavioral health and other screenings to assess risk of developing long-term pain or addiction. Workers with telltale traits – such as a tendency to view situations in catastrophic terms – may be steered toward less-powerful drugs to treat pain or referred to therapists able to treat the underlying sources of pain, said Keith Rosenblum, a senior workers’ compensation strategist at Lockton.

“You are creating zombies when you give [injured workers] opioids and sedatives,” Mr. Rosenblum said. “This is preventable.”

According to estimates from the Survey of Occupational Injuries and Illnesses (SOII) conducted by the US Bureau of Labor Statistics (BLS) and the California Department of Industrial Relations (DIR), over 470,000 nonfatal workplace injuries and illnesses were reported by private-sector and public-sector employers in California in 2015.

However, California’s overall incidence rate of nonfatal occupational injuries and illnesses remains unchanged at 3.8 cases per 100 workers for full-time employees, the lowest rate in over a decade. There has been a steady decline in injury rates over the last decade. In 2002 the rate was 6 cases per 100 workers for full-time employees.

Of the nonfatal reportable job-related injuries and illnesses in 2015, 77 percent occurred in private industry and 23 percent in state and local government. Reported Days Away From Work incidence rates (injuries and illnesses per 10,000 workers) differ substantially between private-sector and government workers, whether state or local. In 2015, the reported rate of DAFW injury or illness among government workers was approximately twice that of private-sector employers. The Report does not speculate as to the reason for this discrepancy.

The Days Away From Work incidence rate for California private sector industries remained at 1.0 case per 100 workers, equaling the national rate. Nearly 83,000 DAFW injuries, or 76 percent of those in private industry, occurred in service-sector industries. The remaining 26,000 injuries, or 24 percent, occurred in goods-producing industries.

In 2015, employer reports for California show that occupational injuries are more prevalent and the rate of injuries per 100 higher among males than among females. Sixty percent of reported cases with days away from work (DAFW) were for male workers, with 40 percent for females. The incidence rate per 100 workers was also approximately 5 percent higher among males than females. Compared to 2014, the rates for both working men and women dropped in 2015 in private sector.

In 2015, 28 percent of reported Days Away From Work work injuries in private industry in California occurred among workers with less than a year of tenure. At goods-producing firms in the private sector, nearly 35 percent of DAFW injuries and illnesses occurred within a year of hire. In manufacturing, 25 percent of those injuries occurred within a year of hire; in construction and natural resources, however, 45 percent of those injuries occurred within a year of hire. Notably, in the natural resources and mining sector, nearly one-quarter of DAFW cases occurred during the first three months of work. The report does not speculate as to the reason why new hires have more injuries than long term workers.

The highest private-sector injury and illness rate in 2015 is among twenty- to twenty-four-year-olds, with the lowest injury or illness rates at the other end of the age spectrum, those above age sixty-five. Compared to 2014, the DAFW injury and illness incidence rate in 2015 for private-sector employers dropped among sixteen- to nineteen-year-olds, twenty-five- to thirty-four-year-olds and for those age forty-five to fifty-four, while it rose or stayed the same for other age groups.

Transportation and material-moving occupations, food service workers, building and ground maintenance, and office and administrative support work were the occupational groupings with the largest number of lost-time injuries and illnesses. Service occupations also showed high number of injuries and illnesses with reported days away from work in 2015.

Among private-sector workers, the highest number of lost-time injuries were caused by overexertion and bodily reaction, by contact with an object or piece of equipment, and by falls, trips, and slips. Other major causes of lost-time injuries and illness included exposure to harmful substances or environments, transportation incidents and workplace violence.

California employers have been dealing with the ramifications of legal medicinal marijuana for years. Now that voters have passed Proposition 64, legalizing so-called “recreational” marijuana use, the CWCI expects that employers face a new reality of potentially outdated workplace policies, employee accommodation, and the applicability of drug-free workplace guidelines. Workers’ compensation carriers and self-insured employers in particular must begin to consider the impact that Proposition 64 may have on claims processing.

According to the CWCI report “Working Through the Haze: Implications of Legalized Marijuana for California Workers’ Compensation System,” last August the National Conference of State Legislatures adopted a resolution asking the federal government to remove marijuana from Schedule I. But the following day, the Drug Enforcement Agency announced that it would not remove marijuana from its Schedule I classification, reaffirming its determination that the drug’s therapeutic value has not been scientifically proven. Thus it remains illegal under federal law. As a Schedule I drug under the Controlled Substances Act, marijuana may not be prescribed, administered, or dispensed, and it is illegal to possess, use, purchase, sell, or cultivate.

Thus, even in states where medical marijuana is legal, doctors can only write a “recommendation” for the remedy.

But the federal government has decided it has higher priorities than enforcement of its anti marijuana stance. The US Department of Justice has actually formalized a “hands-off’ policy, leaving enforcement of minor drug activity up to the states, while the federal government’s priorities have been restricted to eight significant issues, including the operation of drug cartels, narcotics activity leading to violence, and preventing drugs from being provided to minors. “For states … that have enacted laws to authorize the production, distribution, and possession of marijuana, the Department expects these states to establish strict regulatory schemes that protect the [priority] interests identified by the Department,” leaving the decision on whether to enforce restrictions on marijuana being sold to minors or trafficked to other states, federal authorities could step in with enforcement. Otherwise, states can decide to legalize, tax, and regulate marijuana.

Out of 25 states that allow medical marijuana, only five explicitly exempt workers’ compensation payers from liability for medical marijuana. And at least one state has no legislation or judicial case law either requiring or prohibiting workers’ compensation payers from reimbursing an injured worker for medical marijuana.

The remainder of the states that allow medical marijuana, including California, rely on analogous statutory language that precludes a private health insurer from being forced to pay for marijuana. In California, Health and Safety Code Section 11362.785(d) specifically provides that nothing in the state’s medical marijuana program shall require any other health insurance provider or health care service plan to be liable for reimbursement for the medical use of marijuana.

But there may be a developing trend toward compelled compensation, if other states follow the lead of New Mexico. Beginning with a New Mexico Supreme Court case in 2014, New Mexico has required reimbursement for medical marijuana pursuant to that state’s workers’ compensation statute requiring provision of “reasonable and necessary” medical treatment services to an injured worker.

And the trend toward finding compensability for marijuana treatment seems to be spreading. Beyond New Mexico, workers’ compensation payers have been required to reimburse payments for medical cannabis in Minnesota, Maine, Connecticut, and Massachusetts. In two cases from Maine, for example, the Appellate Division of the workers’ compensation system upheld rulings from an administrative law judge that marijuana could be a compensable form of medical treatment for injured workers.

Only two reported cases at the California WCAB have addressed a claims administrator’s liability for marijuana treatment. The first, in 2012, Cockrell v. Farmers, did not directly resolve the question of compensability for medical marijuana. Instead, the Appeals Board merely returned the matter to the trial level for consideration of the impact, if any, of the prohibition against payment for marijuana by health insurance providers under Health and Safety Code §11362.785(d). It appears the case was thereafter resolved by settlement. But in 2013, a second case, Pedro de Dios v. Carroll’s Tire Warehouse, specifically found that the workers’ compensation carrier was not liable for reimbursement of medical marijuana under the Health and Safety Code exemption.