We just returned from another very productive bar convention sponsored by our organization (Cal. Applicant Attorney's Association or CAAA) in beautiful San Diego. We came back refreshed and re-invigorated. We are consoled by the fact that, in spite of the difficult law (SB 863) that we now operate under, our comrades-in-arms in our struggle to get benefits to our clients that they are entitled to, continue to be totally engaged in our efforts to help the injured workers navigate through this very complicated law.
There are at least two cases worth keeping our eyes on: Dubon and Stevens. We will summarize those cases for you soon.
Independent Medical Review
One of the major aspects of the new law, SB 863, is the implementation of the new Independent Medical Review Process. It became effect on January 1, 2013 for injuries that occurred on or after January 1, 2013; and on July 1, 2013 for all other dates of injuries. It was patterned after the IMR Program for group health in the Department of Managed Health Care. Implementation however of the IMR Program in the workers' compensation system changed its complexion into something that is totally different from the group health program and harmful to the injured workers in this great State of California. The authority for this program came under Labor Code sections 4060, 4061, 4062 and 4610 and implemented through the regulations written and adopted by the Division of Worker's Compensation.
Let me explain and take you through the IMR process which I divided into five (5) steps:
1. Primary Treating Physician (PTP) writes a Request for Authorization (RFA)
Primary Treating Physician (PTP) is defined in 8 CCR 9785(a)(1); Claims Administrator (CA) is defined in 8 CCR 9785(a)(3); Request For Authorization (RFA) is contained in 8 CCR 9785.5 and 8 CCR 9792.6.1(t)
8 CCR 9785(g): As applicable in section 9792.9.1, a written request for authorization of medical treatment for a specific course of proposed medical treatment or a written confirmation of an oral request for a specific course of proposed medical treatment, must be set forth on the 'Request for Authorization" DWC Form RFA contained in section 9785.5
2. Claims Administrator (CA) receives the RFA
When the RFA is received by the CA, it has two options - approve the RFA or refer it to its Utilization Reviewer (UR). It the RFA is approved by the CA, the injured worker gets the medical treatment requested by the PTP.
In the early period of implementation, it looked like most RFA's were referred by the CA to its UR. According to records studied by our organization, CAAA, denial rate of RFA by a large insurance company was as high as 62.7% On the average, about 23% (800,000) of all (3,500,000) recommended medical treatment were denied in 2013. All of those denials were appealed through the IMR but only 60,776 (7.59) were overturned by the IMR.
3. UR Denies RFA
Who are these Utilization Reviewers?
8 CCR 9792.6.1(v) tells us that "Reviewer" means a medical doctor, doctor of osteopathy, psychologist, acupuncturist, optometrist, dentist, podiatrist or chiropractic practitioner licensed by any state or the District of Columbia, competent to evaluate the specific clinical services, where these services are within the scope of the reviewers practice.
If the UR denies, delay or modify the RFA, it is subject to independent medical review.
8 CCR 10451.2(c)(1) - Where applicable, independent medical review (IMR) applies solely to disputes over the necessity of medical treatment where a defendant has conducted a timely and otherwise procedurally proper utilization review (UR).
The UR has the following time to render its decision:
Retrospective Review [8 CCR9792.6.1(u)] - 30 days of receipt of RFA with sufficient medical information [8 CCR 9792.9.1(c)(5);
Prospective or Concurrent Review - 5 business days from the date of receipt of the RFA. 8 CCR 9792.9.1(c)(3)]
Expedited Review - 72 hours after the receipt of the written information reasonably necessary to make the determination. 8 CCR 9792.9.1(c)(4) The request for expedited review must be reasonably supported by evidence establishing that the injured worker faces an imminent and serious threat to his or her health, or that the timeframe for utilization review under subdivision (c)(3) would be detrimental to the injured worker's condition.
Once the decision is made, the UR has the following timeframe:
Except for Retrospective Review, if the UR modify, delay or deny, decision shall be communicated to the requesting physician within 24 hours of the decision initially by telephone, facsimile or electronic mail then followed by a written notice to the requesting physician, the injured worker, and the injured worker's attorney within 24 hours for concurrent review, 2 business days for prospective review and 72 hours for expedited review. 8 CCR 9792.9.1(e)(3).
The written decision modifying, delaying or denying treatment authorization shall include the Application for Independent Medical Review. 8 CCR 9792.9.1(e)(5)(G).
Unless overturned by the IMR, the UR decision shall remain effective for 12 months from the date of the decision. 8 CCR 9792.10(h).
4. Application for IMR
A request for independent medical review must be filed by an eligible party by mail, facsimile or electronic transmission within 30 days of service of the written utilization review (UR) determination by filing an Application for Independent Medical Review, DWC Form IMR. 8 CCR 9792.10.1(b)(1).
The eligible parties are: the employee, the employee's attorney, if any; and the employee's designee if unrepresented. 8 9792.10.1(b)(2)(A).
The requesting physician may join with or assist the employee in seeking an independent medical review. 8 CCR 9792.10.1(b)(2)(A)(ii).
5. IMR Decision
If there appears to be any medical necessity issue, the dispute shall be resolved pursuant to an independent medical review. 8 CCR 9792.10.4(d).
Upon receipt of the Application for IMR, the Administrative Director of the Division of Workers' Compensation (AD) determines the eligibility for independent medical review. His decision can be appealed by filing a petition with the Workers' Compensation Appeals Board. 8 CCR 9792.10.3(e)
The AD delegated this responsibility to an independent review organization. At this time, it is known as MAXIMUS. The name of the reviewer or reviewers are confidential. 8 CCR 9792.10.7(f). By doing so, the determination by Maximus is the determination of the Administrative Director.
The parties may appeal a final determination of the Administrative Director by filing a petition with the Workers' Compensation Appeals Board. 8 CCR 9792.10.7(c)
However, the WCAB's en banc decision in Dubon II says that only the timeliness of the UR decision can be adjudicated by the WCAB, not the determination of the IMR.
This procedure is specially hard on injured workers who has an Award of Further Medical Care but are NOT actually getting the medical treatment prescribed by their doctor because the IMR upholds 84% of all UR denials.
Note: I am hoping that the Court will find this procedure unconstitutional because it lacks due process - we cannot cross examine the IMR reviewer and its decision is not subject to judicial review.
Sunday, August 3, 2014
September 1, 2014
Redula & Redula, LLP
As previously announced in this website, we have changed to Redula & Redula, LLP. We received our Certificate of Registration from the The State Bar of California on February 10, 2014. We also received our new EIN from the Internal Revenue Service on February 26, 2014. However, we still have our old EIN and will continue to use it for 2014 for accounting reasons. We expect to use our new EIN on January 1, 2015.
New Chapter President
Congratulations to my partner, Jason K. Redula, for accepting nomination and being elected Chapter President of the California Applicant Attorneys Association. As President, he will preside at all Chapter meetings, arrange for the meeting place and set the agenda for the meeting. Our meetings are intended to be informational and educational to promote and maintain the highest level of competency of members in our chosen field of law practice. It is also intended to promote friendship, respect and courtesy among our members.
Good luck Mr. President. May you have a wonderful and fruitful presidency.
July 18, 2014
Jason Redula, Esq. as of 7/1/14 has been certified as a workers' compensation specialist by the State Bar of CA Board of Legal Specializations. Congratulations!
We are also proud to announce that we are now Redula & Redula, LLP. Website changes soon to come!
October 14, 2013
We now have over three (3) months of experience with the new Independent Medical Review (IMR). Based on this short experience, we found that about two-thirds (2/3) of all medical treatment and procedures recommended by the primary treating physician is being denied by the utilization reviewers of workers' compensation insurance companies. And we are challenging most of them by filing an Application for an IMR.
In some instances, we are finding that the claims administrators are failing to meet the timeline for responding to RFA's (Request for Authorization). Section 9792.9.1(c)(3) gives claims administrators no more than five (5) business days to respond to completed RFA's. If additional information is needed, this period can be extended up to fourteen (14) days. It is our position that if the claims administrator fails to respond timely, we can take the issue to the Court by filing a Declaration of Readiness to Proceed. I will be testing this position soon and report on the results.
For those cases where we filed an application, the determination by the IRO is coming at about 50 - 50, half were upheld and half were denied.
July 7, 2013
SB 863 is here! Whether we like it or not, we will have to live with this new law and the regulations written to implement it. Some of the regulations became effective last 01/01/13. As of July 1, 2013 all the final regulations affect all dates of injury in one way or another.
The changes are complex and we will have to discuss it part by part. The biggest changes are on the medical benefits to injured workers. Let us first recall that an injured worker with an accepted workers' compensation claim has the right to all reasonable and necessary medical care needed to cure or relieve him/her from the effects of the claimed injury. The words that usually result in litigation in the past are: "reasonable", "necessary", "relieve or cure". To resolve any treatment dispute will now be referred to an IRO (Independent Review Organiation). The final determination issued by the IRO shall be deemed to be the determination of the Administrative Director and shall be binding on all parties. 9792.10.6(h). However, if the final determination is that a disputed medical treatment is medically necessary, the parties may appeal a final determination of the Administrative Director by filing a petition with the Workers' Compensation Appeals Board. 9792.10.7(a) and (c)
The IMR process does not involve the question of whether the injured worker needs medical care. That can still be addressed through the existing Qualified/Agreed Medical Evaluation Process.
Basically, the IMR process is very straight forward. If the primary treating physician's request is delayed, modified or denied, the dispute is resolved through the IMR.
The problem is on the details.
The primary treating physician sends an RFA (Request for Approval) together with his/her medical report. Upon receipt, the claims administrator can do one of two things: 1) Disputes its liability for the requested medical treatment; or 2) Sends the request to its Utilization Reviewer.
IF LIABILITY FOR THE REQUESTED MEDICAL TREATMENT IS DISPUTED:
No later than five (5) business days from receipt of the RFA, it will issue a written decision deferring utilization review to the requesting physician, the injured worker, and if the injured worker has an attorney, the injured worker's attorney. This dispute will be resolved either by agreement of the parties or through the dispute resolution process of the Workers' Compensation Appeals Board.
IF CLAIMS ADMINISTRATOR SENDS THE RFA TO ITS UTILIZATION REVIEWER
There are several types of utilization review - Expedited Review, Concurrent Review, Prospective Review and Retrospective Review. To get an Expedited Review, the requesting physician must indicate the need for an expedited review upon submission of the request. For the other types of review, please see CCR 9792.6.1
(To be Continued)
December 12, 2012
What a date! 12-12-12! Well, Merry Christmas everyone!
We are currently preparing and participating in drafting the regulations that will implement the new law popularly known as SB863 (please see below).
Everyone must be aware that most of its provisions will affect all pending cases as to every issue that is not final in every case regardless of the date of injury. For this reason, we are carefully monitoring the regulations as they are posted for comments and for public hearings.
We will keep you informed.
September 6, 2012
The Legislature passed Senate Bill 863 by a landslide, 34 to 4 in the Senate and 66 to 4 in the Assembly. California Governor Jerry Brown will most certainly sign the bill as he had issued a statement last Friday night praising bipartisan support of the bill and said Democrats and Republicans working together to fix the state’s workers’ compensation system could be “a portent of good things to come.”
Brown has until Sept 30th to sign SB 863 and the bill would take effect on January 1st, 2013
The Bill is said to save employers an estimated $770 million in 2013 and $330 million in 2014.
Although the Bill aims to increase workers compensation benefits such as permanent disability indemnity in terms of strictly numbers [Indemnity means compensation for damage sustained], there is a lot of language in the Bill to suggest hardship for injured workers. We will update you with more information as it becomes available.
June 9, 2012
We are very excited about the change in our office - we have started the change over to a paperless office as we announced previously. In addition to a more efficient office and better service to our client, we can now accept more clients without any concern that we may not cope with the additional workload.
In addition, there are two court decisions that seems to indicate that the pendulum is swinging back to the side of the oppressed - the injured workers.
The first and foremost is the Court of Appeal, Second Appellate District's reversal of the en banc decision by the WCAB in the case of Elayne Valdez v. WCAB (Warehouse Demo Service) Let us review this case.
Elayne Valdez was a demonstrator who sustained injury to her neck, back and right hip, and claims to have also sustained injury to her right ankle, right foot, right lower extremities and both knees.
She received initial treatment from one of the defendant insurance company's physician in its Medical Provider Network (MPN) a couple of days after her date of injury on 10/07/09. She complained to her attorney that the treatment being provided by the MPN doctor was doing her more harm than good. Her attorney then wrote to the insurance company demanding a change of primary treating physician on 10/23/09. When no response was received from defendant insurance company (Zurich), her attorney referred her to Mark Nario, D.C. Dr. Nario found her totally temporarily disabled beginning 11/02/2009. Based on this, temporary disability indemnities (TDI) was demanded by her attorney. In the meantime, she also applied for and received State Disability Indemnities (SDI) from the Employment Development Department based on Dr. Nario's disability certification.
I suspect that no TDI was forthcoming so that the case proceeded to trial on 07/22/10 on the issues of temporary disability indemnities and attorney's fees. Defendant raised the issue of "MPN" contending that reports of non-MPN doctors are inadmissible. The trial judge deferred that issue as unrelated to temporary disability. At trial, Ms. Valdez testified that her initial doctor's treatment was not helping her. She also testified that she was not told how to go about changing doctors within the MPN.
Relying on Dr. Nario's opinion, the trial judge found Ms. Valdez totally temporarily disabled from 11/02/09 and was entitled to TID from said date less SDI payments received and allowed EDD's lien.
Defendant filed a petition for reconsideration. Applicant's attorney did not file an Answer.
On 04/20/11 the WCAB issued its first en banc decision. Commissioners Brass and Caplane dissented in part. It held that: 1) Where unauthorized treatment is obtained outside a validly established and properly noticed MPN, reports from the non-MPN doctors are inadmissible and therefore may not be relied upon; and 2) Where unauthorized treatment was obtained outside the MPN, a defendant is not liable for the cost of the inadmissible reports from the non-MPN physicians.
Applicant filed a Petition for Reconsideration which was denied by the WCAB. Again, Commissioners Brass and Caplane dissented in part.
The dissent is of the opinion that Non-MPN physician's reports are admissible.
Applicant filed its Petition for Writ of Review which was granted by the Appeals Court. The Court stated, "We conclude that the rule of exclusion laid down by section 4616.6 applies only when there has been an independent medical review performed under the authority of section 4616.4"
SIGNIFICANCE OF THIS DECISION
We believe that this reversal by the Appeals Court allows the injured worker to be freed from the shackles of the oppressive opinions by doctors authorized by the insurance company to treat injured workers through its MPN. Most of the time, injured workers are released back to work by said doctors causing aggravation of their symptoms, delaying their recovery and deprivation of benefits.
With this decision, there is at least an independent medical opinion coming from a doctor chosen by the injured worker. It does not however means that the trial judge will follow this doctor's opinion, only allows him to consider it and follow it if it is the most persuasive.
The only unfortunate part of this decision is that it is unpublished and cannot be cited yet. Hopefully, it will be published soon.
The second court decision is a Panel Decision that is not binding upon the trial judges but may be persuasive. In the case of Doreen Dahl v. Contra Costa County, the Appeals Board held that the 2005 PDRS can be rebutted with the use of an Independent Vocational Expert as held in Ogilvie. Furthermore, the loss of future earnings capacity does not need to be a total loss. The panel stated, "Application of a LeBoeuf type of analysis in cases of partial permanent disability requires expert opinion on the effect of the injury's impairment on the worker's amenability to rehabilitation and the effect of that on DFEC. Such an analysis can be done even where there is less than total permanent disability, as in this case where the employee has rebutted the PDRS by showing that she will have a greater DFEC than reflected in the PDRS rating.
June 6, 2012
Our office has a Case Management System up and running!
We closed our office for one day for Meruscase training. Vic, Brenda, Esme and I have all been trained in Meruscase and will be working towards a more efficient and web-based system for our office. I'm excited to see how much more efficient and more organized our office will become.
In addition, I am in the works on starting a new podcast - probably something like Jason on Comp. I will be taking workers comp questions that I will answer on the podcast. If you have any suggestions, or any questions, email me at email@example.com.
April 26, 2012
In re: Daniel Escamilla (En Banc decision)
From 2003 to 2011, this attorney had been sanctioned in the amounts of: $750, $500, $500, $2500, $500, $900, $900, $750, $3150, $1000, and $2500. Not to mention reasonable costs and fees to be paid to other parties. Eventually, the WCAB stated "It has become apparent that sanctions are ineffective in causing Mr. Escamilla to conform his conduct to the Appeals Board's Rules of Practice and Procedure."
This attorney's conduct was an example of how an attorney should NOT behave. In various petitions, this attorney willfully misrepresented material facts. He made frivolous contentions. He engaged in various bad faith conduct.
Our attorneys do not behave as such.
The attorneys here at the Law Office of Vic R. Redula zealously represent injured workers and we do it in an honorable and good faith manner. We do not misrepresent material facts. We tell it like it is and make arguments within the law to ensure that the Applicant receives the benefits he or she is owed according to the Labor Code.
March 2, 2012
Part of a client's testimonial
"After all we have been through for the past two years, I wanted to let you know that I am so very grateful and appreciative for all you have done for me. Thank you for tirelessly pioneering on this quest and expertly guiding me through the complicated workers compensation process."
"I need to mention that I was always impressed that your father and your staff remembered my name and acknowledged me whenever I walked into the office. Although you were often busy with your other cases, you tried to make time to meet with me when I asked to meet with you, and you always responded to my e-mails in remarkable time. Not once did you speak down to me. All of this was quite exceptional. I very much appreciate you, your father, and your staff for their hard word, professionalism, and most importantly for treating me like a human being."
"I understand the personal and professional sacrifices you have had to make to keep me as a client, and for that commitment you went above and beyond to help me because you believed in yourself, and you believed in me. I am forever grateful for all that you did for me."
January 3, 2012
New Year's Resolution Anyone?
Most of us make new year resolutions and resolve to actually do it. Let me suggest one more - HIRE A LAWYER IF YOU GET INJURED AT WORK.
If answer NO to any of the following questions, you need a workers' compensation lawyer in my opinion:
1. Did you get injured more than a month ago and your pain is gone completely?
2. Do you know what to do if your doctor released you back to work, does not wish to see you anymore and you believe you need further medical care?
3. If you are receiving temporary disability indemnity, do you know if you are getting paid correctly?
4. Do you know what to do if temporary disability payments stop?
5. Do you know what a Qualified Medical Evaluator is?
6. Do you know when you need a Qualified Medical Evaluator?
7. Do you know what to do if your prescription medication is denied by the insurance company?
8. Do you know what to do if the Qualified Medical Examiner writes a report saying that you only sustained 3% WPI?
9. Did you receive a letter from the insurance company and know what to do?
December 20, 2011
Merry Christmas and a Prosperous New Year Everyone!
The year 2011 is a very good year - relatively speaking. Let us count the ways:
- We did not hear of any new law that took away more rights of injured workers;
- Ogilvie was upheld by the Appeals Court;
- Almaraz/Guzman was not overruled by the Appeals Court; and
- Some appointments by the Governor appear to be promising: Christine Baker as Director of Industrial Relations; Judge Rosa Moran as Administrative Director; and Ronnie Caplane as Chair of the Workers' Compensation Appeals Board.
Have a wonderful 2012!
November 30, 2011
It seems like Workers Compensation law gets more and more complex as SB-899 gets older and older. Ogilvie III changed everything around again by dispatching with the formula given to us in Ogilvie II.
Although, there is some good news happening at the WCAB in Salinas. Lately, Judges have been deferring to the primary treating physician's recommendations if that PTP is within the Medical Provider Network of the insurance company. One judge believes that the insurance company should not be getting two bites of the apple - i.e. creating their own MPN and then denying the PTP's recommendation with their own Utilization Review. Another Judge is under the belief that UR reports should be stricken because they are not MPN reports per Valdez.
So if an MPN doctor makes a recommendation, it's in the client's best interest for their attorney to file for Expedited Hearing as soon as possible!
- Jason Redula, esq.
April 25, 2011
Happy Easter everyone! Unfortunately, I have another bad news for the injured workers of California.
On April 20, 2011, the Workers' Compensation Appeals Board, en banc, issued its decision on the issue of free choice of doctors for the injured workers when there is an approved Medical Provider Network (MPN) in the cause of, Valdez v. Warehouse Demo Services. In one word, they said, "None". Injured workers have NO right to choose the doctor who will treat them for their injury/injuries if the workers' compensation insurance of their employers ave an approved Medical Provider Network. How unfair!
Since this is an en banc decision, it it binding to all workers' compensation judges in California. In other words, all workers' compensation judges MUST follow this decision unless reversed by a higher court. If an injured worker selects his/her doctor outside of the MPN, that doctor's opinion does NOT count. It is NOT substantial evidence from which the judge can based his/her decision on.
January 27, 2011
We just got back from our CAAA Bar Convention in San Diego, and we are now more optimistic that before. There should be some improvement in the field of Workers' Compensation. We are hopeful that Gov. Brown's appointments will be more sympathetic to the plight of the injured workers in California. We are also helpful that the very oppressive law passed in April, 2004 can be changed at this time.
Last year, I reviewed in this site the cases of Alamraz/Guzman I and Almaraz/Guzman II. Since then, the Guzman case had been reviewed and upheld by the Court of Appeal, Sixth Appellate District last August 19, 2010. There, the WCAB en banc held that, "Whether in the initial determination of WPI or in rebuttal, a physician could "utilize any chapter, table, or method in the AMA Guides that most accurately reflects the injured employee's impairment", but was not permitted to go outside the four corners of the AMA Guides. The biggest impact of this decision is on rating the pain suffered by injured workers. It is no longer limited to 3% because Chapter 18 of the Guides permits the evaluating doctor to rate pain to as high as 80% WPI!! (page 584 of the Guides, 5th Edition).
January 03, 2011
I just finished listening to Governor Jerry Brown's inaugural speech - and I am pleased. There is hope and expectations that the long oppressed injured workers can look forward to be better tomorrow.
It is time to remove SB899 from the books that has resulted in mountains of disappointments and unfair court decisions!
December 06, 2010
Merry Christmas Everyone!
We just finished attending a very educational seminar on how to accurately rate the whole person of an injured worker as a result of an industrial injury - very tricky. It confirmed my suspicion that each case, no matter how small, now requires a lot more time and care. The recent court decisions allow us to be more creative and require us to be more knowledgeable of the detailed provisions of the AMA Guides, 5th Edition which is the current basis for determining an accurate assessment of the injured worker's whole person impairment resulting from the industrial injury.
It is now clear that even if one has a simple case, most injured workers will require legal assistance. With proper care and direction, the injured worker can receive better medical care and probably higher monetary benefits.
October 12, 2010
When was the last time you saw or talked to your workers' compensation attorney? The most frequent complaint by clients is that his/her attorney never talks to them or never call them back. That is NOT true with our office.
Either I or my staff will return our client's call if they follow the following guidelines which we usually explain at the First Meeting with our clients:
1) Call between 08:30 A.M. and 12 Noon; then from 01:30 through 4 P.M., Monday through Friday except on holidays. If you call during this time, there is a good chance that your question will be answered either by me or my staff. If not, we will call you back;
2) Call only if necessary. If you call every time you receive a copy of our letter to the insurance company or its attorney, we will not call you back. The copy sent to you is only a courtesy copy. It will be in English. It is your responsibility to know what it says. Only call us back if the letter was addressed to you asking you to call back;
3) Call at reasonable intervals. Workers' Compensation system is a very slow system. Usually it takes at least 10 days for the defendant to respond. In most cases, the court will allow defendant reasonable time to respond - usually 30 days;
4) If you call and no one answers your call, it is probably lunchtime or all of us were busy at the time you call. If you leave us your name, telephone number and a short message telling us what you need, we will usually return your call within 24 hours except on weekends. If not, it is probably because we did not understand your message, you did not give us your name and your correct telephone number, or we just talked to you and there really is nothing new to tell you.
We usually see our client every time there is need to confer with you - for coming medical evaluation, prior to settlement conference or before trial.
If you are a client reading this, please print it for future reference. For prospective clients, please compare the above with how your current attorney serves you. It is probably way better!
September 28, 2010
According to the latest study released by the Census Bureau, 1 in 7 Americans lives in poverty. That is 43.6 million people! Guess what is a very significant contributing factor for people to join this group? Work injury!
In California, if you were injured at work, your "income" drops by one-third immediately. This is because temporary disability indemnities are equal to two-thirds (2/3) of your average weekly earnings up to a certain maximum depending on the date of your injury. This is specially true with minimum wage earners and one-wage earner families.
Let us take a family of 5 - 2 parents and 3 children. Dad works and Mom stays home with the children. He makes $31,200.00 ($15.00 per hour, 40 hours per week, 52 weeks per year, or $600.00 per week). If Dad gets injured, his earnings goes down immediately to $400.00 per week (2/3 x $600.00). That means, that family just join the ranks of people in poverty because the household earnings will drop to $20,800.00 per year and poverty level for a family of 5 is $25,790.00 On top of this, he might lose his family's medical insurance if he cannot pay his part of the premium. And how can he? There are also employers who can cut the medical insurance of the injured worker because the medical insurance was provided under ERISA, They can do it and the Court (WCAB) cannot do anything about it.
June 28, 2010
We just came back from a very interesting and educational bar convention in Monterey. It confirmed my suspicion that our practice in the field of workers' compensation law has become very complicated. It means spending more time in the initial interview, closer monitoring of medical treatment provided our clients and to watch closely the time constraints in the regulations.
One of the new en banc cases that we discussed was the Blackledge case. This case finally clarified for us the roles of the evaluating doctors, the DEU raters and the Judges. It held that:
1. The physician's role is to assess the injured employee's whole person impairment percentage(s) by a report that sets forth facts and reasoning to support its conclusions and that comports wth the AMA Guides and case law. This holding must be looked at in light of the Almaraz/Guzman II decision. As we earlier reported, that case allows the evaluating doctor to analogize the medical condition of the injured worker so that he/she can make an accurate assessment of the whole person impairment resulting from the industrial injury. We have seen in our practice that a successful Almaraz/Guzman II analysis can double the resulting whole person impairment. We can then dovetail that with rebutting the resulting diminished future earning capacity of the injured worker per Ogilvie to further increase the value of the recovery. Most of the time, it appears that a vocational expert will be necessary to accomplish this.
2. The DEU rater's role is to issue a recommended permanent disability rating based solely on the judge's formal rating instructions; and unless specifically instructed to do so, a rater has no authority to issue a rating based on the rater's own assessment of whether the whole person impairment rating(s) referred to in the judge's instructions are based on substantial evidence or are consistent with the AMA Guides.
This is a very welcome decision. In the past, we have minimized requesting the DEU raters to do the rating for us because they sometimes do an independent analysis of the doctor's opinions regarding whole person impairment. Most of the time, the resulting rating was less than our own rating. Because of this, the insurance industry preferred to get a DEU rating first before they participate in settlement negotiations.
Another benefit from this decision is that, there will probably be less and less cross-examination of the rating expert.
3. The Judge is not bound by a rater's recommended permanent disability rating and the judge may elect to independently rate an employee's permanent disability; however, a judge's rating still must be based on substantial evidence.
In addition to the above, there is a footnote 10 that can be used as instructions to the lawyers representing the injured workers. It says, "Of course, a physician will not necessarily be able to produce a legally proper report without some assistance from the parties." It continued by stating that, "We do not comprehend how the parties can expect any physician to properly report in workers' compensation matters unless he is advised of the controlling legal principles." We translate this to mean that we must improve our cover letters to the evaluating doctor. We must present to him/her our theory of the case and explain to the doctor the "controlling legal principles" if we expect them to submit a "legally proper report".
To those who did not attend the convention, you folks missed a lot!
March 29, 2010
In the midst of interviewing a prospective client, he asked me what my office will do for him if he retains us to represent him in his workers' compensation claim.
This seems like a very ordinary question but it is a question that is not asked enough by injured workers. I suggest that every injured worker who may read this to ask your lawyer what he/she can do for you!
The usual answer is: "We will zealously represent you before the Workers' Compensation Appeals Board and secure for you the benefits you are entitled to under the workers' compensation laws of the great state of California." Very impressive? Yes, but what does that really mean?
In my effort to answer clearly, my prospective client, let me first explain the usual benefits an injured worker is entitled to after an industrial injury. They are:
1. All MEDICAL TREATMENT reasonably necessary to cure relieve the effects of the industrial injury;
2. TEMPORARY DISABILITY INDEMNITY - money the insurance company is required to pay the injured worker every two weeks while recovering from the effects of the industrial injury while the worker is unable to return to work;
3. PERMANENT DISABILITY - money the insurance company is required to pay the injured workers at bi-weekly intervals if the injured worker sustained any whole person impairment as a result of the industrial injury; and
4. SUPPLEMENTAL JOB DISPLACEMENT BENEFIT - money to be used by the injured worker for retraining purposes if he/she was unable to return to his/her former job as a result of the industrial injury, and the employer cannot reasonably accommodate the limitations resulting from the industrial injury.
In addition to the above, we also assist our client in the following areas:
1. Searching and choosing an appropriate medical provider (doctor, osteopath, chiropractor, acupuncturist, etc.). This is especially helpful because the choice of the primary treating physician is required to be within the Medical Provider Network of the employer, if it has an MPN. Most of them do;
2. Enforcing the choice of physician if not timely authorized by the insurance company by taking them to court using the Expedited Hearing process;
3. Forcing the insurance company to pay benefits in a timely manner by filing petitions for delay penalties if the benefit was unreasonably delayed;
4. Expedite settlement by taking the defendants to court in a timely manner if it refuses to respond to our demand for settlement; and
5. Use other resources to maximize the injured workers' benefits with the prudent use of vocational experts as allowed by case laws;
December 16, 2009
We will close our office for Christmas beginning Monday, December 21, 2009 and re-open Monday, December 28, 2009.
Have a very Merry Christmas everyone!
September 21, 2009
We just received the latest interpretation by the Workers' Compensation Appeals Board on how to rebut the 2005 Schedule for Rating Permanent Disabilities (the Schedule hereinafter). In its previous Decision, it held that the Schedule is rebutted by showing that an impairment rating based on the AMA Guides would result in a permanent disability award that would be inequitable, disproportionate, and not a fair and accurate measure of the employee's permanent disability; and when an impairment rating based on the AMA Guides has been rebutted, the Workers' Compensation Appeals Board (WCAB) may make an impairment determination that considers medical opinions that are not based or are only partially based on the AMA Guides. Alamaraz/Guzman
The "newly aggrieved" party, State Compensation Insurance Fund filed a timely petition for reconsideration against the above decision. The WCAB granted this petition, amended its previous Findings and Award issued its Opinion and Decision After Reconsideration (en banc) last September 3, 2009. Almaraz/Guzman II It may be appealed but in the meantime, this new decision is binding upon all WCAB Judges.
It now holds that,
(1) the language of Labor Code section 4660(c) unambiguously means that a permanent disability rating established by the Schedule is rebuttable;
(2) the burden of rebutting a scheduled permanent disability rating rests wth the party disputing that rating;
(3) one method of rebutting a scheduled permanent disability rating is to successfully challenge one of the component elements of that rating , such as the injured employee's whole person impairment (WPI) under the AMA Guides; and
(4) when determining an injured employee's WPI, it is not permissible to go outside the four corners of the AMA Guides; however a physician may utilize any chapter, table, or method in the AMA Guides that most accurately reflects the injured employee's impairment.
By these holdings, the WCAB specifically rejects the 'inequitable, disproportionate and not a fair and accurate measure of the employee's "permanent disability" standard set forth in its February 3, 2009 opinion.
The above just do not make any sense. The only reason we will try to rebut the scheduled permanent disability rating is because it is "inequitable, disproportionate and not a fair and accurate measure of the employee's permanent disability. If it is, then the rating must be upheld!
It is very noteworthy that three (3) of the seven (7) Commissioners dissented from the above opinion. They disagreed that a party may never go outside of the AMA Guides to rebut a scheduled permanent disability rating!
We are hopeful that the Appeals Court will side with the dissenting commissioners who makes more sense that the majority.
July 13, 2009
We just came back from the Applicant Attorney's Bar Convention in Lake Tahoe and we feel envigorated by the seminar, recharged our batteries and more determined to help and defend the rights of the injured workers. We were reminded that we continue to be the last hope of the oppressed - the injured workers of the Great State of California.
Enblazoned on the walls of the convention room were the words - "JUSTICE WILL COME WHEN THOSE WHO ARE NOT INJURED START TO CARE - Tolstoy" These words are still relevant and very appropriate today after all those years.
In spite of the fact that workers' compensation benefits were lowered as much as 80% in 2004 by SB 899, the myth that injured workers get on the gravy train still persists. The truth is - there is NO gravy train. Injured workers continue to lose their homes, their cars, their medical insurance and sometimes, their spouses. Very sad indeed.
When will the uninjured start to care? Perhaps soon - all we can do is continue the fight and hope.
There has been a very significant drop in new clients calling our office for appointment. I think it is probably caused by the high unemployment rate in our area of practice - the tri-county area of Monterey, Santa Cruz and San Benito Counties.
And because of this high unemployment rate, injured workers are terrified to file a claim no matter how serious the resulting injury was. They don't report the accident and continue to work wth pain hoping that the pain and discomfort will go away. And if it doesn't, then they will file and hope that their employers will appreciate the fact that they continued to work in pain. Wrong!
What usually happens is - their claim is denied as fraudulent or at least a violation of company policy requiring "all accidents be reported immediately." Worse, they can get terminated before the claim is filed and the claim will be barred because it is a "post termination claim".
I just finished interviewing an injured worker who was so scared to report his accident at work and waited until he could no longer continue to work because of pain caused by the injury. He told me that he "honored his employer" by continuing to work in pain. Well, when he finally reported the accident to his employer, he was terminated for violating a company policy that requires all accidents be reported immediately. He told me that in spite of that policy, accidents are frowned upon and the injured workers are scorned in their workplace. They make you feel like it was your fault for gettng injured on the job. So he was terrified when he finally got injured and did not report the accident immediately.
I will probably file an allegation that the termination was discriminatory because it was caused by his filing a workers' compensation claim in violation of Labor Code section 132a. I can already see the employer's defense - bonafide personnel action. They will claim that the termination was caused by the injured worker's violation of their company policy. A supervisor may testify that the injured worker was told about this policy during his orientation and they might even produce a copy of the "Employee's Handbook". The employer will probably lose because this will not be the first of this type of cases that the experienced judges in the Salinas WCAB will hear this year. Unfortunately, it is getting more and more prevalent. The closer the termination in time to the filing of the claim, the better is our chance of winning discrimination in the workplace.
The moral of the story - report ALL accidents immediately. It is your right to receive workers' compensation benefits if you get injured on the job. It is a no-fault system with very few exceptions.
I just finished a trial before the Salinas WCAB on the issue of back benefits resulting from the delay by the insurance company in providing and paying vocational rehabilitation benefits. Initially, this issue would have settled for about $17,000.00 To avoid litigation, the injured worker was willing to accept this amount last year but the insurance company disagreed and only offered $2,500.00
After trial, defendant is now facing an Award of more than $76,000.00 because the benefit will be paid at the delayed rate existing at this time up to two-thirds of the injured worker's average weekly earnings. The insurance company was claiming that it was entitled to a reduction of the award by the earnings of the injured worker who was forced to work because the insurance company refused to provide vocational rehabilitation benefits. She was terminated by her employer because she could no longer do her regular duties as a result of her injury at work. Then the insurance company refused to provide retraining as required by law. How callous can they be? Totally heartless? There is no court decision that supports their outrageous position. On the contrary, the court explicitly held that they are NOT entitled to credit for the injured worker's hard-earned wages during the delay period.
We expect the decision to come down in about 30 days.
EAMS has gone live!
EAMS (Electronic Adjudication Management System) is now in effect. It went "live" last August 25, 2008 and is now mandatory for all except the unrepresented injured workers.
Forms must now be submitted via very specifically formatted forms called Optical Character Recognition, or OCR forms or via the internet through e-Forms. Law Firms practicing before the Workers Compensation Appeals Board are mostly comfortable with the system. But it continues to evolve. We must continue to be diligent and vigilant to adopt to all these changes. Unfortunately, it has resulted in more pages added to the regular mail costing everyone more because of the cover pages and the separator pages required for each filing. It is ironic because the change was intended to make the system paperless.
Click here to see our advertisement in the yellow pages.