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Requesting Consulting Physicians Within an MPN

Posted by Sure S. Log on Feb 22, 2023 12:51:44 PM

Labor Code 4616.3(c) establishes a process that allows injured employees to obtain second and third opinions from physicians within a medical provider network. It states, "If an injured employee disputes either the diagnosis or the treatment prescribed by the treating physician, the employee may seek the opinion of another physician in the medical provider network. If the injured employee disputes the diagnosis or treatment prescribed by the second physician, the employee may seek the opinion of a third physician in the medical provider network."

Per LC 4616.4(b), "If, after the third physician's opinion, the treatment or diagnostic service remains disputed, the injured employee may request an MPN independent medical review regarding the disputed treatment or diagnostic service still in dispute ... in accordance with Section 4616.3." That's referred to as an MPN IMR.

California Code of Regulations § 9767.7 supports those statutes. CCR 9767.7(a) restates that an employee may obtain a second and third opinion from physicians within an MPN if he or she disputes either the diagnosis or the treatment prescribed by the treating physician. CCR 9767.7(b) states that to invoke that right, the employee must:

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Topics: MPN, Medical Treatment, IMR, LC 4616.3

Special Report: Revisions to Medical-Legal Evaluation Regulations

Posted by Sure S. Log on Feb 7, 2023 4:24:48 PM

The Division of Workers' Compensation (DWC) revised regulations related to medical-legal evaluations effective Feb. 2, 2023. The regulations make changes to the rules for scheduling QME examinations and permanently adopt regulations allowing remote medical-legal evaluations. Specifically, the regulations make these changes to the medical-legal process:

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Topics: DWC, Medical-Legal, Evaluations

Striking a Qualified Medical Evaluator and the Mailbox Rule Revisited

Posted by Sure S. Log on Jan 18, 2023 9:00:00 AM

In represented cases in which a panel of qualified medical evaluators (QMEs) is required to resolve a disputed issue, Labor Code 4062.2(c) states, "Within 10 days of assignment of the panel by the administrative director, each party may strike one name from the panel." Pursuant to Messele v. Pitco Foods, Inc. (2011) 76 CCC 956 (appeals board en banc), it has been well recognized that the mailbox rule applies to that process. So, when a QME panel is served, a party generally is given 10 days from the assignment of it, plus five days for mail, to strike a name from the panel.

Under the current process, however, the parties do not receive the QME panel at the same time. QME panel requests must be submitted electronically via the Division of Workers' Compensation website. After the request online, the panel is generated automatically. Within one working day, the requesting party is required to serve a copy of the panel and any supporting documentation with a proof of service.

The party requesting the panel frequently receives it immediately or shortly after submitting the request. The other party receives it only after being served by the requesting party. So, must each party issue a strike by the same day?

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Topics: QME, Striking, Mailbox Rule, CCR 10607, LC 4062.2

Vocational Evidence and LC 4660.1(c)

Posted by Sure S. Log on Dec 20, 2022 9:00:00 AM

For injuries on or after Jan. 1, 2013, Labor Code 4660.1(c)(1) states that "the impairment ratings for sleep dysfunction, sexual dysfunction, or psychiatric disorder, or any combination thereof, arising out of a compensable physical injury shall not increase." LC 4660.1(c)(2)(A)(B), however, specifies two exceptions allowing an increased impairment rating for a psychiatric disorder. An employee may receive such a rating by proving that the injury resulted from either: (1) being a victim of a violent act or direct exposure to a significant violent act; or (2) a catastrophic injury. Moreover, the WCAB continues to hold that the permanent disability schedule under LC 4660.1 can be rebutted by vocational evidence.

How should LC 4660.1(c)(1) be applied if the employee is unable to return to the open labor market as a result of his or her physical injury in addition to a compensable consequence psychological disorder? The issue was addressed recently in the case of Schaan v. Jerry Thompson & Sons, 2022 Cal. Wrk. Comp. P.D. LEXIS 264.

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Topics: Ogilvie, LC 4660.1(c), catastrophic injury, vocational expert, psychiatric injury, permanent total disability

WCAB Holds That Chronic Traumatic Encephalopathy (CTE) Is an Insidious Progressive Disease

Posted by Sure S. Log on Nov 15, 2022 9:00:00 AM

Generally, the Workers' Compensation Appeals Board's jurisdiction to award new and further disability is limited to five years from the date of injury. Labor Code 5410 states, "Nothing in this chapter shall bar the right of any injured worker to institute proceedings for the collection of compensation within five years after the date of the injury upon the ground that the original injury has caused new and further disability." LC 5804 states, "No award of compensation shall be rescinded, altered, or amended after five years from the date of injury ..." unless there is a timely filed petition. The appeals board generally may not reserve jurisdiction to award additional disability more than five years from the date of injury. (Hartsuiker v. WCAB (1993) 12 Cal. App. 4th 209.)

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Topics: LC 5410, Insidious Disease, CTE

WCAB's Denial of 132a Claim Does Not Bar Civil Claim Under FEHA

Posted by Sure S. Log on Oct 18, 2022 9:00:00 AM

Generally, workers' compensation is the exclusive remedy for injuries occurring at the workplace. A worker normally must pursue claims for work-related injuries before the Workers' Compensation Appeals Board (WCAB) rather than sue the employer in civil court.

Nevertheless, certain types of intentional conduct take the employer beyond the boundaries of the compensation bargain. In City of Moorpark v. Superior Court of Ventura County (Dillon) (1998) 18 Cal.4th 1143, the California Supreme Court held that discrimination falls outside of the compensation bargain. It concluded that Labor Code 132a does not provide the exclusive remedy for discrimination based on a work-related injury.

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Topics: 132a, res judicata, Fair Employment and Housing Act, FEHA, collateral estoppel

Analysis of Senate Bill 1127

Posted by Sure S. Log on Oct 5, 2022 11:43:19 AM

Yesterday we issued a summary of workers' compensation bills recently signed into law. The most significant is SB 1127, which is outlined in depth here. A webinar will be scheduled shortly to delve into these changes and their implications.

On Sept. 29, 2022, Gov. Gavin Newsom signed into law SB 1127. The bill makes several changes to coverage by a statutory presumption of compensability. As explained in the Assembly Floor Analysis, "presumptions of compensability have been adopted, some many decades ago, to reflect unique circumstances where injuries or illnesses appear to logically be work related, but it is difficult for the injured worker to prove it is work related."[1]

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Topics: Red Alerts, California, Laws, Statutory Presumption, 240 Weeks

California Workers' Compensation Bills

Posted by Sure S. Log on Oct 3, 2022 4:00:00 PM

The 2022 legislative season is over. The Legislature had until Aug 31, 2022 to pass bills, and Governor Gavin Newsom had until Sept. 30, 2022 to sign or veto bills. The bills signed by the Governor take effect on Jan. 1, 2023. Below is a list of bills affecting California workers' compensation.

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Topics: Special Reports, Urgent Reports, California, Laws

Receipt of a Request for Authorization by a Defense Attorney

Posted by Sure S. Log on Sep 21, 2022 3:00:00 PM

Labor Code § 4600(g)(2)(A) states, "Unless otherwise indicated in this section, a physician providing treatment under Section 4600 shall send any request for authorization for medical treatment, with supporting documentation, to the claims administrator for the employer, insurer, or other entity according to rules adopted by the administrative director." The statute directs that a request for authorization for medical treatment (RFA) must be sent to a claims administrator, rather than somewhere else, although the claims administrator may designate where the RFA is sent (CCR 9792.6.1(t)(3)).

That language was added effective Jan. 1, 2017, by AB 2503. Pursuant to the Senate Floor Analysis, "[I]t is often difficult for health care providers in the workers' compensation system to obtain timely approval for treatment of injured workers because it is difficult to know where to send RFAs." So, the bill was "intended to clarify where the RFA and related materials must be sent, so that the time frames specified in statute will be more effective." Pursuant to the Assembly Floor Analysis, "AB 2503 requires that a RFA is submitted directly to a claims administrator, rather than a UR vendor or some other third party."

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Topics: Utilization Review, RFA, defense

Liability for Cumulative Trauma Injury Under LC 5500.5

Posted by Sure S. Log on Aug 16, 2022 8:00:00 AM

Multiple employers or insurers can be liable for a cumulative trauma (CT) injury, and it's common for employers or insurers to dispute whether and how much liability they have for such an injury. Pursuant to Labor Code 5500.5(a), liability for a CT injury is limited to employers who employed the worker during the one-year period immediately preceding the date of injury (LC 5412), or the last date of injurious exposure, whichever occurs first.

So there's no single point from which the liability period is determined. It could be based on either the date of injury under LC 5412 or the last date of injurious exposure. Furthermore, the date of injury under LC 5412 requires the concurrence of: (1) compensable disability; and (2) knowledge of industrial causation. The liability period for a CT injury is a frequent source of contention.

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Topics: cumulative trauma, LC 5412, CT injury, multiple employers, date of injury, LC 5500.5, compensable disability

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