Tag: 2020 News

The Administrative Director of the Division of Workers’ Compensation has ordered that the pathology and clinical laboratory portion of the Official Medical Fee Schedule adopted in title 8, California Code of Regulations, section 9789.50, is adjusted to conform to changes to the Medicare payment system that were adopted by the Centers for Medicare & Medicaid Services (CMS) for services rendered on or after April 1, 2020.

The update includes fee schedule changes identified in CMS Transmittal 4541, Change Request CR11681, which may be accessed on the Medicare website.

The CMS has adopted two new Health Care Common Procedure Coding System (HCPCS) Level II codes, U0001 and U0002, for use in diagnosing the novel corona virus, Covid-19. The HCPCS Level two codes U0001 and U0002 are adopted for services rendered in the workers’ compensation system.

HCPCS Codes U0001 and U0002 are listed in the CMS 20CLABQ2 file, but fees are not set forth as National payment amounts are not yet set. In the meantime, Medicare uses the fees determined by the local Medicare Administrative Contractor as the Medicare rate. These fees are based upon the CMS’ Medicare Administrative Contractor’s local rate for California as published by CMS in the document entitled “Medicare Administrative Contractor (MAC) COVID-19 Test Pricing March 12, 2020”.

For workers’ compensation, the maximum reasonable fee is 120% of the Medicare rate pursuant to Labor Code section 5307.1.

Code: U0001
Short Descriptor: 2019-nCoV diagnostic P
Long Descriptor: CDC 2019 Novel Coronavirus (2019-nCoV) Real-Time RT-PCR Diagnostic Panel
Medicare Fee: $35.91
Maximum workers’ compensation fee: $43.09

Code: U0002
Short Descriptor: COVID-19 lab test non-CDC
Long Descriptor: 2019-nCoV Coronavirus, SARS-CoV-2/2019-nCoV (COVID-19), any technique, multiple types or subtypes (includes all targets), non-CDC
Medicare Fee: $51.31
Maximum workers’ compensation fee: $ 61.57

In line with Governor’s Newsom’s stay-at home order in response to the COVID-19 crisis issued on March 19, the Division of Workers’ Compensation (DWC) encourages primary treating physicians to continue to manage injured workers’ care through telehealth options whenever medically appropriate. Telehealth options include remote visits via video-conferencing, video-calling or similar such technology that allows each party to see each other via a video connection. These are viable alternatives to in-person physical examinations for medical-legal evaluations.

DWC urges all parties to work together with the primary treating physician to anticipate and resolve any potential disputes that may result from a request for a medical-legal evaluation by a Qualified Medical Evaluator (QME).

During the stay-at-home order (up to May 1, 2020), DWC finds that it may be beneficial for parties to allow telehealth for QME evaluations when an in-person physical examination is not necessary. DWC strongly recommends that all of the following conditions apply to a telehealth evaluation to promote the health and safety of all parties:

1. The injured worker is able to participate in the telehealth evaluation without violating the stay-at-home order.
2. The medical issue in dispute is determined to be essential to an injured worker’s benefits and must be addressed no later than May 1, 2020. The dispute must involve:
— a. An evaluation relating to whether or not the injury is Arising Out of Employment/Course of Employment (AOE/COE),
— b. Termination of an injured worker’s indemnity benefit payments, or
— c. Work restrictions
3. There is written agreement of the injured worker, carrier or employer, and the QME.
4. The telehealth evaluation is consistent with appropriate medical practices and ethical considerations.
5. The QME attests that the evaluation of the injured worker can be done effectively and safely by way of a telehealth evaluation and does not require an in-person physical examination.

DWC encourages all parties to evaluate whether medical-legal evaluations (which involve in-person physical evaluations) should be cancelled or postponed as part of the stay-at-home response to COVID-19. In some instances, a reasonable interpretation of compliance with the stay-at-home order could mean that medical-legal, face-to-face evaluations should be postponed or canceled, if it requires the injured worker or others to travel and interact with anyone outside of their immediate household.

A note on telehealth visits during this emergency: The decision as to when a telehealth visit can be employed must rest on the principles of appropriate and ethical medical practice. An in-person physical examination is necessary if the injured employee’s relevant health issues are such that a physical examination done in person has significant likelihood to contribute to the examiner’s ability to formulate an accurate diagnosis, or to more accurately gauge the outcome of treatment already provided. In such an instance, parties should evaluate whether the evaluation can be cancelled or postponed. If such circumstances do not require an in-person examination, then a telehealth visit should be allowed.

DWC understands that strict adherence to the time limits for scheduling, canceling or rescheduling a medical-legal evaluation, or for serving a medical-legal report, may be impractical or impossible during this public health crisis. During the month of April, DWC encourages parties to agree upon reasonable allowances and agreements.

The issue of whether a medical-legal report is admissible or constitutes substantial medical evidence is determined in accordance with applicable laws and is not altered by these emergency measures.

At the end of April, DWC will reevaluate whether additional emergency responses related to QME telehealth evaluations are necessary due to the COVID-19 crisis.

The California Insurance Commissioner issued a Notice requesting that all insurance companies provide their policyholders with at least a 60-day grace period to pay insurance premiums. The Commissioner made the request to ensure policies are not canceled for nonpayment of premium due to the novel coronavirus (COVID-19) public health emergency.

The Notice follows Governor Gavin Newsom’s State of Emergency declaration to make additional resources available, formalize emergency actions already underway across multiple state agencies and departments, and help the state prepare and mitigate against the broader spread of COVID-19. The Commissioner’s Notice is directed to all admitted and non-admitted insurance companies that provide any insurance coverage in California including, life, health, auto, property, casualty, and other types of insurance.

Commissioner Lara is also requesting that all insurance agents, brokers, and other licensees who accept premium payments on behalf of insurers take steps to ensure that customers have the ability to make prompt insurance payments, if and where possible. This includes alternate methods of payment, such as online payments, to eliminate the need for in-person payment methods in order to protect the health and safety of both workers and customers.

In addition, in a separate Notice, the Commissioner requested the assistance of all automobile insurers, producers, and other licensees transacting automobile insurance in California. The California Department of Motor Vehicles (DMV) recently asked California law enforcement to exercise discretion for 60 days in their enforcement of driver license and vehicle registration expirations beginning March 16, 2020, in order to have at-risk populations, including seniors and those with underlying conditions, avoid required visits to DMV field offices.

To achieve this important objective, Commissioner Lara called on auto insurers to refrain from using the expiration of policyholders’ drivers licenses or vehicle registrations for 60 days, from March 16, 2020, for any of the following reasons:

— To affect a driver’s ability to secure and maintain auto insurance coverage;
— To affect a driver’s eligibility for a Good Driver discount;
— To determine eligibility for a California Low Cost Automobile policy;
— To impact the rates charged to any driver.

“The evolving COVID-19 pandemic continues to test all segments of our communities, including motorists,” said Commissioner Lara. “While we address this evolving crisis, Californians should not have to worry about driving with an expired license or losing their insurance coverage and driver discounts during this extraordinarily challenging time.”

This second Notice regarding driver license and vehicle registration expirations will be reevaluated at the end of the 60-day period.

Maria Fraire was awarded 100% permanent disability twice, in two out of three cases she filed against the California Department of Corrections and Rehabilitation, without any apportionment. A split panel decision in Fraire v California Department of Corrections reversed this result.

In the first case, Maria Fraire, sustained industrial injury to her right hand and fingers, cervical spine, bilateral knees, cervical spine, lumbar spine and head on May 23, 2005. The WCJ found that the permanent disability for this injury will be addressed in the two companion cases.

In the second case, the WCJ found that Fraire sustained industrial. injury to her bilateral knees, internal organs, both eyes, left shoulder, diabetes, cardiovascular system, psyche, and hypertension on September 11, 2006, which caused permanent total disability (i.e. , 100%) based on the provision of Labor Code section 4662(a)(1) that the loss of both eyes or the sight thereof is conclusively presumed to have resulted in permanent total disability.

In the final case, Fraire injured her her eyes, psyche, and cardiovascular system on June 28, 2012. The WCJ found that her June 28, 2012 injury caused permanent total disability (i.e., 100%) based on the provision of section 4662( a)( 1) that the loss of both eyes or the sight thereof is conclusively presumed to have caused permanent total disability.

And as in the 2006 case, the WCJ found that although the medical evidence establishes that only half of applicant’s permanent total disability was caused by her June 28, 2012 industrial injury, the conclusive presumption of section 4662(a)(l) precludes the apportionment of applicant’s permanent total disability.

SCIF’ s petition for reconsideration contends that the injuries involving the loss of both eyes or the sight thereof under section 4662(a)(l) are subject to apportionment under section 4663. Reconsideration was granted, in the split panel decision of Fraire v California Department of Corrections.

The WCAB concluded that section 4662(a) conclusive presumption does not preclude apportionment. With respect to apportionment to causation under sections 4663 and 4664 (b), there is no reasonable rationale for distinguishing between permanent disabilities that are conclusively presumed to be total in character pursuant to section 4662(a) and those that are factually determined to have caused 100% overall permanent disability pursuant to sections 4662(b) and 4660.

“On remand, the WCJ should redecide permanent disability and apportionment in applicant’s three cases in light of the correct legal principle that permanent disabilities that are conclusively presumed to be total under section 4662(a) are  subject to apportionment to causation under sections 4663 and 4664(a).”

Commissioner Katherine A. Zalewski dissented. She said that “the Appeals Board has repeatedly held that permanent disabilities that “shall be conclusively presumed to be total in character” pursuant to section 4662(a ) are not subject to apportionment to causation under section 4663 or 4664(a).”

“Nevertheless, in his Joint Opinion on Decision, the WCJ does not even address how, if at all, this provision of section 4664( c) could justify two separate 100% permanent disability awards in these cases. Accordingly, for this limited reason, I would have rescinded WCJ’s decisions and returned these cases to the WCJ to consider whether two separate 100% permanent disability awards are justified.”

The Division of Workers’ Compensation (DWC) appreciates the efforts of the workers’ compensation community to provide care for injured workers during the COVID-19 pandemic. Of paramount importance is that everyone follow all guidance from the Governor as well as federal, state and local public health agencies regarding COVID-19.

After adherence to all public health guidance and orders, DWC encourages all parties to consider creative solutions appropriate to providing care to injured workers. The increased use of telehealth services for medical treatment may be appropriate.

The California Business and Professions Code section 2290.5 requires that – “the health care provider initiating the use of telehealth shall inform the patient about the use of telehealth and obtain verbal or written consent from the patient for the use of telehealth as an acceptable mode of delivering health care services and public health. The consent shall be documented.”

DWC is currently evaluating the feasibility of telemedicine for QME evaluations and will continue to do so.

The use of telemedicine for a QME evaluation may be appropriate where all parties agree that there is a medical issue in dispute which involves whether or not the injury is AOE/COE (Arising Out of Employment / Course of Employment), and all parties to the action, including the physician, agree to a telemedicine evaluation in order to resolve this dispute.

Although DWC is not authorizing any particular course of action, the division recognizes that in this time of medical emergency, creative delivery methods of essential medical treatment and evaluation services may be needed.

DWC realizes that QME appointments may be affected. When cancelling or rescheduling an appointment, please document the reason in the file and inform all parties as soon as possible. Given the current COVID-19 emergency, QMEs that cancel appointments fewer than 6 business days before an appointment may assert that they had good cause to do so.

The current state of emergency regarding the COVID-19 pandemic presents serious public health concerns, and parties and evaluators are encouraged to work together to take any action that may be necessary to protect the health of doctors, their staff and injured workers.

The QME examination scheduled for April 18, 2020 will be postponed. The exam will be rescheduled and a new date will be announced.