Senate Bill 863 imposed a $100 “activation fee” on liens filed prior to January 1, 2013.  Angelotti Chiropractic and other lien claimants sued in federal court challenging the constitutionality of these provisions claiming that SB 863 violates the Takings Clause, the Due Process Clause, and the Equal Protection Clause of the United States Constitution.

At first the case seemed to go their way. The trial court issued a preliminary injunction in the lien claimants’ favor as to the Equal Protection claim, but not as to the other claims.  The DIR appealed the district court’s issuance of the preliminary injunction and its denial of the motion to dismiss the Equal Protection claim. The 9th Circuit Court of Appeal reversed last June, and vacated the injunction in the published case of Angelotti Chiropractic Inc. v Christine Baker.

The panel held that the district court properly dismissed the Takings Clause claim because the economic impact of SB 863 and its interference with plaintiffs’ expectations was not sufficiently severe to constitute a taking. The panel further concluded that the lien activation fee did not burden any substantive due process right to court access and also rejected plaintiffs’ claim that the retroactive nature of the lien activation fee violated the Due Process Clause.

The lien claimants file a petition for rehearing in the 9th Circuit Court of Appeal. The 9th Circuit denied the petition last week.  It is possible but highly unlikely that the lien claimants can successfully pursue an appeal with the  U.S. Supreme Court.  This would not be the typical type of case of national significance the SCOTUS would be interested in hearing.  Thus this ruling is probably the end of the road for these lien claimants efforts to avoid SB 863 activation fees.

The California Society Of Industrial Medicine (CSIMS) is the association exclusively representing the private physician practicing occupational medicine in California, has announced a new website, www.lienactivation.com, to assist lien holders to identify unresolved liens.

According to its website “unresolved liens filed prior to January 1, 2013 are subject to a $100 lien activation fee. This website will enable you to quickly and easily identify all of your unactivated liens and receive a detailed list via email. It doesn’t matter how or when your liens were filed, or if the name of the lien claimant was misspelled at the time of filing. You can find them all using our simple Lien Finder search tool.”

At this point there will be a clean up process where many of the liens will be dismissed for failure to pay an activation fee.  The few remaining will be litigated or settled, and perhaps five years after passage of  S.B. 863 the industry will achieve the desired effect of the law.

A major trend in contractual payment arrangements between medical providers and payers, intended to lower costs while improving the quality of care, triggers cost-shifting from group health plans to workers’ compensation, according to a new study reviewed by the CFO website. The shift hinders some employers from reaping the hoped-for cost benefits, study results suggest.

More medical providers are agreeing to full or partial capitation arrangements, under which they’re paid a set amount for each enrolled plan member assigned to them per period of time. It’s a counter to the fee-for-service model, under which providers have a financial motivation for ordering care that a patient may not actually need. Most recently, Blue Cross Blue Shield of Massachusetts, the state’s largest health insurer, announced new deals with three large health systems that “set budgets to care for patients and reward providers for keeping patients healthy and away from expensive hospital stays and procedures,” the Boston Globe reported.

Meanwhile, the prevalence of capitation arrangements is on the rise. A late-2014 study of reimbursements for care provided to 101 million people, conducted by Catalyst for Payment Reform, an employer-funded health policy group, found that 15% of what health insurers spend on medical bills is paid under capitation.

In some states, it’s a much bigger slice of the pie. For example, for Blue Cross Blue Shield of Massachusetts, 40% of its 2.1 million individual members will be, as of Jan. 1, covered under health plans that shift financial risk to medical providers.

That all sounds good – but there’s a little-discussed wrinkle. That is, for some common ailments, like soft-tissue back, knee, or shoulder pain, it’s often not clear whether the injury was work-related or non-occupational. Doctors are given a degree of discretion under workers’ compensation law to make that determination, which creates a conflict of interest, because they usually end up benefiting financially by classifying the injury as work-related.

A recent WCRI study found that soft-tissue injuries suffered by patients covered under capitated group health plans were 11% more likely to be classified as work-related. And that proportion rose to 31% in states where at least 22% of workers were covered by capitated plans. According to WCRI, if just 3% of soft-tissue-condition cases under group health plans were shifted to workers’ compensation, total workers’ comp costs would increase by $225 million in California alone. Providing two other examples, the institute said the comparable figures would be $100 million in Pennsylvania and $25 million in Iowa.

The Audit Unit of the Division of Workers’ Compensation (DWC) has posted draft revisions to the Benefit Notice Manual and sample benefit notices to the DWC forums for public comment. The Division welcomes suggestions from the workers’ compensation community to improve the quality and clarity of the draft notices.

The purpose of this manual is to present advice for accurate and timely completion of benefit notices and mandatory forms that meet the requirements of the Administrative Director’s regulations.The “safe harbor” provision of Title 8, Cal. Code of Regulations, section 9810(f) provides that “Benefit notices using the sample notices devised by the Administrative Director and available on the Division’s website are presumed to be adequate notice to the employee and, unless modified, shall not be subject to audit penalties.”

Various events in the life of a workers’ compensation claim trigger the requirement to issue a notice to the employee or claimant. There are required contents for each notice.

These regulations are effective as of January 1, 2016 The regulations apply to all workers’ compensation dates of injury, except as otherwise noted. The Division cautions the claims community that the revised notices may not be used until the regulations take effect on January 1.

The model notices presented in this 85 page manual are in English and Spanish and are the result of a combined effort of workers’ compensation professionals from insurers, self-insured employers, third-party administrators, and employer and employee representative groups working together with the Division of Workers’ Compensation. The intent of this effort is to provide forms which, if used in conjunction with the instructions provided, will improve communication with the injured worker and make it easier for the claims administrator to comply with the regulations governing the issuance of benefit notices.The Division anticipates posting the final revised Benefit Notice Manual and sample benefits notices to the Division’s website on or about October 15, 2015.

Ultimately, the claims administrator is responsible for compliance with the regulations governing the issuance of benefit notices, regardless of whether these model notices are used.  Failure to provide a correct and timely notice is one of the most often cited offense in the audit report prepared following the mandatory routine claim audit process.  Adherence to the guidance in the Manual would likely result in a much improved audit score.

Governor Brown vetoed a bill (AB 305) that would have prohibited medical problems primarily affecting women from being considered pre-existing conditions when calculating workers’ compensation permanent disability and apportionment. The veto was made after signing legislation to give California women the strongest equal-pay protection in the nation.

This bill attempted to prohibit apportionment if pregnancy or menopause is contemporaneous with the injured worker’s claimed injury. This bill also required that breast cancer not be less than the comparable impairment rating for prostate cancer. It also tried to prohibit apportionment in cases of psychiatric injury caused by sexual harassment or any of the conditions listed above if the conditions are contemporaneous with the psychiatric injury. Senate Floor Amendments of 9/3/15 remove “osteoporosis casually related to menopause” from the list of conditions where apportionment would have been prohibited.

According to state Sen. Marty Block (D-San Diego), the bill was part of an effort to end gender bias in the workplace. Some proponents of the bill have argued that the AMA Guides are not objective, specifically in the area of gender-specific injuries. Specifically, proponents point to the fact that the AMA Guides rate the removal of female breasts at a WPI of 0%, while the removal of a prostate would rate a 16%-20% WPI, arguing that such a rating shows bias against women.

Opponents argued that AB 305 was an attempt to undermine an employer’s use of apportionment when determining liability for permanent disability awards. Specifically, opponents noted that apportionment is more than a decade old and ensures that employers do not need to pay for non-industrial injuries. Further, opponents pointed to case law and statute which protects injured workers from abusive apportionment, including apportionment on the basis of gender. Opponents further argue that AB 305 will increase litigation, raise indemnity costs on employers, and increase systemic instability and subjectivity.

The Democratic governor’s veto message said “The workers compensation system must be free of gender-bias. No group should receive less in benefits because of an immutable characteristic. However, this bill is based on a misunderstanding of the American Medical Associations’ evidence-based standard which is the foundation of the permanent disability ratings, and replaces it with an ill-defined and unscientific standard.”

A researcher at McGill University in Quebec says her study of treadmill workstations show them to be potentially more beneficial and able to help diminish work-related musculoskeletal disorders. Kinesiology researchers are studying ways to reduce or even prevent muscular and skeletal stresses and pains. The study as summarized in Reuters Health shows that walking while working on a computer may lead to healthier muscular patterns. The research was published this year in the European Journal of Applied Physiology.

“There are studies recently that show that you lose weight because you would exert more calories, but we were more interested in knowing about the muscles that do the work. The muscles in the neck/shoulder region are the ones that feel the pain and experience fatigue,” says Julie Cote, an Associate Professor in the Department of Kinesiology and Physical Education whose research focuses on biomechanics and ergonomics.

Cote’s lab asked 20 healthy participants to complete a 90-minute typing task on a computer while sitting or walking on a treadmill. This typing task measured both speed and accuracy. “We found out that in terms of performance – typing performance – there was no difference between how fast or how many mistakes people were making whether they were walking or seated,” said Cote.

For the experiment, they placed electrodes on certain parts of the body to measure muscle activity in the neck, shoulders, forearms, wrists and lower back. Cote said the electrodes collected three points of data – blood flow, muscle activity and movement or posture – with the help of motion capture. Her lab asked participants to rate their level of discomfort while performing tasks. Results showed that upper limb discomfort was higher when the subjects were sitting and increased the longer they sat.

“We found in terms of muscle activity there were patterns that seemed to be healthier in the neck and shoulder while people were walking,” said Cote. They discovered that there was lower, but more variable, muscle activity when subjects were walking compared with sitting, all of which translated into less discomfort. When people were walking, “the muscles worked together in a more independent way,” said Cote

Cote’s lab is in the process of preparing results of desk standing versus sitting, to submit for publication, but she is already convinced that the former is healthier for workers. “What I can say in terms of performance, people seem to be performing better when they were standing,” said Cote.