Ms. Sharp is a summer intern with our firm, currently attending North Carolina Central University in Durham, NC. She is pursuing her Juris Doctorate and Masters in Public Administration (Dual Degree Candidate). We welcome her and encourage her professional development, gaining the necessary skills to pursue her future career.
Apportionment in California Workers' Compensation is posed for a dramatic change as Senate Bill 731 (SB 731) gains momentum in the California legislature. If enacted into law, SB 731 would prohibit apportionment of permanent disability based on race, religion, creed, color, national origin, age, gender, marital status, sex, sexual identity, sexual orientation, or genetic characteristics.
Currently, the law requires apportionment of the causation of the worker's permanent disability. According to Cal. Lab. Code §4663, a physician is required to determine all of the causative sources of the worker's permanent disability. Apportionment mu...
Applicant Attorneys are returning from CAAA with the same theme discussed for years. The difference this year is to apply different tactics to accomplish their goal; schedule an AME of their choosing. Although the use of AME's has diminished, Applicant Attorneys still pursue choosing a doctor they prefer.
Here are some examples I've seen this past year:
Carpal tunnel injury? Applicant Attorney wants an Internist (MMM) when it's obvious Hand (MHH) or Ortho (MOS) would be best.
Ankle sprain? Applicant Attorney wants Pain Management (MPA) when Ortho (MOS), Podiatry (POD), or even Physical Rehab (MPR) would be better.
Knee injury? Applicant Attorneys wants a Chiropractor (DCH).
Is there anything defendants can do to mitigate their efforts?
In Caggiano v. County of Monterey (2018 Cal. Wrk. Comp. P.D. LEXIS 230), the applicant requested a panel in pain management. The defendant requested a...
Okay, so this isn't a story about good and evil. I needed a good title to draw you in and get you to read about a case you really should know about. However, it is a cautionary tale and you should keep this case in the back of your mind anytime you have a cumulative trauma case involving multiple defendants.
In Ventura v. Dana Point Cleaners (2019 Cal. Wrk. Comp. P.D. LEXIS 114), the applicant filed a cumulative trauma claim involving two separate insurance carriers. The applicant entered into a compromise and release agreement (C&R) with one of the carriers (Wasco). The second carrier (Zenith) had not been joined before the C&R was finalized and was not a party to the settlement. In the settlement documents, Wasco reserved their rights to contribution from Zenith.
I begin this article with a brief history lesson. In 1996, Proposition 215, the Compassionate Use Act of 1996, was approved by 65% of the voters in California. The Proposition legalized the use, possession and cultivation of cannabis by patients with a physician's recommendation.
The initiative was criticized for its lack of structure. Consequently, in January of 2003, SB 420 was passed which established an identification card system for medical cannabis patients. The medical cannabis was to be used for treatment of cancer, anorexia, AIDS, chronic pain, glaucoma, arthritis, or any other illness for which marijuana provides relief.
In the workers' compensation arena, there was concern that a plethora of cases would spring up involving the use of medical marijuana for treatment and/or future med...
Certified Specialist, Workers' Compensation Law, The State Bar of California,
Board of Legal Specialization
If you haven't felt the pain non-IBR litigation, you are in for a treat.
Imagine a world where someone performs a service without your consent or even necessarily a need to do it, and then bills you for the service. On top of that, imagine you tell this person you never wanted the service and you give them a list of all the reasons why you do not owe them anything. In response, you receive a bill for 10 times the original amount and an order from a judge to pay. Crazy, right? Well, welcome to the world of non-IBR med-legal litigation.
In my experience, the most frequent situations involving non-IBR litigation deal with copy services. Keep in mind, this article deals with situations where Independent Bill Review (IBR) is not an option. Where the correct amount to pay is the only issue, IBR is the option and you...
Often times, our attorneys are asked broad questions as they pertain to the workers' compensation field. Why not share this insight with everyone?
"Do I have to pay TTD for medical appointments when the employee is working?"
Scott M. Tilley, Esq.:
"The short answer is, no. The answer has to do with wage loss. See, TTD is paid as wage loss. If an applicant has returned to work as MMI or because you are accommodating work restrictions, there is no wage loss. If you need some case law to back up this position, then see Ward v. WCAB (69 CCC 1179) (a copy can be found at our web site). The bottom line is an applicant is not entitled to TTD for medical appointments if they have returned to work. "
I recently had a trial at the Riverside WCAB. The applicant was without transportation and was coming in from Compton, California. During the morning session, the applicant's attorney told me the applicant would be taking public transportation including a bus and the MetroLink train. The applicant's estimated time of arrival was 1:00 PM. The trial had been set for 8:30 AM. The parties had some distance between the demand for settlement and the offer. My client had a good case and was sticking to their offer amount. There was an attempt by the judge to have the parties split the difference but we said no thank you.
Over the course of the morning, the applicant was in contact with her client. By the time the applicant's train was arriving in Riverside, it became apparent that if we were to go fo...
You might recall the King case from our case law update of several years ago. It was a BIG DEAL. We worried as we told you the decision and we wondered what impact it might have on our workers' compensation system. Well, the California Supreme Court has chimed in and the end of the world has been averted.
As you might recall, Mr. Kirk King was an applicant whose medication (Klonopin) was non-certified by utilization review. The medication was abruptly cut off (no weaning) and Mr. King suffered serious ramifications including four seizures. Mr. King and his wife both filed suit in superior court against the UR vendor, CompPartners, and the UR doctor, Dr. Sharma. The Kings claimed negligence, professional negligence, loss of consortium and intentional and negligent infliction of emotional di...
Certified Specialist, Workers' Compensation Law, The State Bar of California, Board of Legal Specialization
Labor Code §4610 provides the ground rules for the Utilization Review (UR) process. This section first appeared in the Labor Code in 2003.
Labor Code §4610(i)(1) deals with the timeframe for issuing prospective or concurrent decisions to certify or deny recommended medical treatment. The decision shall be made in a timely fashion as appropriate for the nature of the employee's condition, not to exceed five (5) working days from the receipt of a Request for Authorization for Medical Treatment and supporting information reasonably necessary to make the determination, but in no event more than 14 days from the date of the medical treatment recommendation by the physician.
Since 2003, the term “working days" was interpreted as Monday through Friday, with Saturday and Sunday excluded. Thus, if a Request for A...
A chiropractor in Riverside is free on bond following his May 11th arrest after being charged with receiving $300,000.00 in kickbacks. Curtis Wayne Montgomery, 59, is charged with 3 counts of insurance fraud, 28 counts of receiving commission for referring clients and 16 counts of money laundering.
Curtis Wayne Montgomery allegedly received money from Providence Scheduling and would make patient treatment referrals to companies owned by those who made referrals to him resulting in a cycle of unnecessary or useless treatments.
The owners of Providence Scheduling, Carlos Arguello and Fermin Iglesias, have entered pleas in San Diego federal court in connection with a workers' compensation fraud scheme which was indicted in January of 2016. Providence Scheduling allegedly directed patients to medical companies, also owned by them, for equipment, imaging and treatments and would then bill the insurance companies for the work and providers who cooperated with them for kickbacks.
Mrs. Stepp was hired by Fidelity National Title Group in May 2010 as an in-house attorney. On her first day of work, she told her manager that she was pregnant and intended to take maternity leave in September 2010. Her manager at the time indicated that was fine and that he was happy to have her working there. However, one coworker, Mr. Rygh, was not happy that Mrs. Stepp failed to inform the company of her pregnancy when she was interviewed. Later that same year, Mr. Rygh became Mrs. Stepp's supervisor. When Mrs. Stepp returned from maternity leave, Mr. Rygh was unaccommodating in a variety of ways: not providing a lactation room, failing to provide a lock to Mrs. Stepp's office for lactation purposes, refusing to provide refrigeration for breast milk, forcing the applicant to share a hotel room during a mo...
As I am sure all of you know, our country continues to struggle with an opioid crisis. It impacts every level of our society and there is probably not one of you that has not been impacted, either knowingly or unknowingly, by this issue. Statistics show that every day more than 115 Americans die after overdosing on opioids. Opioid addiction is a crisis that not only impacts the health of our citizens and workers but also the social and economic well-being of our country. In California, opioids represent the largest category of medications prescribed to injured workers (according to the California Workers' Compensation Institute) and they lead to more serious issues than the pain they are intended to prevent. However, there are signs of progress and avenues of hope in this crisis.
The recent decrease in qualified medical evaluators may upset and delay the settlement of disputed workers' compensation claims in California. The California Workers Compensation Institute recently released a study which showed the number of qualified medical evaluators has decreased 20% between January 2012 and September 2017.
An article published by Business Insurance states, "If you look at the average age of the people who do most of the medical legal evaluations, they are a lot of the baby boomers," said William Zachry, San Francisco-based senior fellow at the Sedgwick Institute. "Baby boomers are retiring or leaving the industry for various reasons as they get older. In California, there has always been a problem with getting good medical legal evaluations in the rural area ... that is one of the challenges that has been problematic for as long as there has been comp in California."
Regardless of the reduced number of QME's, it is noted QME's are taking on more eva...
The State Bar of California, Board of Legal Specialization
As our country inches closer and closer to legalizing marijuana for recreational use, the issue of what role the budding medication plays in workers' compensation is quickly evolving. Courts and state legislatures around the country are addressing this issue.
Six states - Connecticut, Maine, Massachusetts, Minnesota, New Jersey and New Mexico - have found medical marijuana treatment is reimbursable under their workers' compensation laws. Six states preclude a carrier from being ordered to pay for medical marijuana in a workers' compensation case - Arizona, Colorado (of all places), Michigan, Montana, Oregon and Vermont. Now another state is joining the party.
On September 13, t he Maine Supreme Judicial Court heard oral arguments to decide if state law requires a workers' com...
The State Bar of California, Board of Legal Specialization
As you might recall, Labor Code section 4656 was amended in 2007 and changed the time limitations for TTD. Previously, for dates of injury between 4/19/2004 and 12/31/2007, TTD benefits were limited to 104 weeks within a two-year period and the period began to run with the first payment of benefits. This was amended in 2007 and Labor Code section 4656(c)(2) provided that for dates of injury after 1/1/2008 the limitation was 104 weeks within a period of five years from the date of injury.
Labor Code section 4656(c)(2) has been widely thought of as having two limitations. One, an applicant was entitled to only 104 weeks of TTD for a single date of injury. Two, the payments had to be made within five years from the date of injury. This was a significant change from the old provisi...