Twice a year, the California Applicants’ Attorneys Association has a conference to discuss everything from changes in Workers’ Compensation Law, to developing new strategies to increase recoveries for their clients. The 2023 Winter CAAA and Summer conferences were no exception; this year’s conferences covered a range of topics including expediting medical treatment, strategies to obtain QME panel lists in their preferred specialties, increasing permanent disability, and pursuing penalties.
1) Medical Discovery - Securing Authorization for Treating Physicians, Consulting Physicians, and Additional QMEs
Following a work injury, the first medical treatment an applicant receives is typically at an occupational medicine clinic, at the behest of the employer. As occupational medicine is conservative in nature, applicant’s attorneys were urged to immediately transfer the care of their clients to more liberal doctors within the employer’s medical provider network (MPN), the idea being that these more liberal doctors will request treatment plans that will prolong the time for recovery, thereby delaying an immediate return to work, and increasing defendants’ costs.
Continuing the conference’s focus on medical treatment, one panel discussion dealt primarily with the growing dissatisfaction with the delivery of medical care from the employer’s MPN. Namely, applicant attorneys viewed MPN doctors as underestimating applicant’s injury for fear of being blackballed by the defense and therefore producing biased reports. Much discussion centered on strategies to secure treatment outside of MPNs, and on shifting the burden of providing medical treatment back on the defense. It was suggested that a written demand letter be sent to the defense so they can identify, provide, schedule, and send the medical records to the primary treating physician. One of the suggested methods was through the Medical Access Assistant (MAA), a requirement of all MPNs under CCR section 9767.5(h)(1). The timeframes in section 9767.5 set forth tight deadlines for complying with MAA requests. In the near future, we can expect an increase in expedited hearings in situations where immediate action is not taken in response to their demand letter.
There was also a dissatisfaction among the conference panelists with the perceived significant delay between applicant’s date of injury and the first medical treatment consult. The delay was in large part viewed as an issue arising from claims examiners who failed to authorize treatment timely. To incentivize the provision of immediate care, it was suggested that Applicant’s attorney should pursue penalties. Obviously, we should treat every request for treatment quickly and within the allotted timeframes, even though it may not always be possible. However, we can expect applicants’ attorneys to be much more aggressive with authorization of treatment, changes of treaters, or requests for medical access assistant information, as petitions for penalties will likely follow even small delays in treatment. As a reminder, claims examiners have five business days from first receipt of the request for treatment authorization, unless additional reasonable medical information is needed to make the decision. If more information is needed, the additional reasonable medical information must be requested by the fifth business day from the date of the request. In addition, section 9767(f) calls for the first treatment under the MPN to be “available within 3 business days of…notice to an MPN medical access assistant that treatment is needed.”
When treatment authorizations are set for an expedited hearing, the WCAB Judges have found that the DOR is notice itself of the treatment request, and an argument for lack of notice cannot be upheld. Under these circumstances, applicants’ attorneys were urged to seek penalties in expedited hearings and to not miss this opportunity. We should expect a renewed fervor in applicant’s attorneys utilizing these provisions and their tight time windows to either treat outside the MPN where allowed, or to obtain penalties on delayed treatment benefits.
2) Case Law Review—Selection and Assignment of Panel Qualified Medical Evaluators
After several legislative changes to the panel QME process, including the introduction of the online process, the Legislature hoped that there would be less litigation around the panel QME process. However, getting the right evaluator can make or break a case, and if anything, there has been more litigation around panel QMEs in the years after the changes. In disputed cases, parties often rush to request a panel QME in a desired specialty. However, that rush has led to a rash of recent decisions from the WCAB addressing the proper way to begin the QME process. Special attention to clearly written objection letters is important to prevent any delay in the QME panel process.
Several recent cases have laid the groundwork that proper notice of the disputed issues must be given to trigger the QME panel process. In one such case, Hazen (Daniel) v. Porterville Unified School District (2022) 87 Cal. Comp. Cases 932, the WCAB invalidated a panel list when the objection letter failed to list with specificity the disputed issues. The court reasoned that permanent disability notices that have a general disagreement with the findings of a treating physician is simply not enough; the objection letter must put the opposing party “on notice” of a specific finding to which they are objecting. Furthermore, the WCAB in dicta reiterated that the party seeking a Romero replacement panel must follow Labor Code §4062.2, and send a new objection letter before submitting the request.
In a bizarre decision involving the 10 day strike window, the WCAB in Kowal v. County of LA (2002) 87 CCC 699, found that an applicant’s attorney’s untimely panel strike did not prevent him from scheduling an evaluation with the stricken doctor. The Board reasoned that as applicant’s attorney’s strike was untimely, both parties had the right to schedule an appointment with either of the two remaining physicians on the panel. The court found that applicant properly exercised his right to set an evaluation, even though he set it with the doctor he meant to strike. The court strangely permitted the applicant to benefit from his own delay.
Finally, stemming from the Summer CAAA Conference of June 22nd, panelists discussed several seminal cases involving permanent total disability . The panelists urged attorneys to revisit the holdings of cases like Ogilvie, LeBoeuf, Dahl, and Montana. It is no coincidence that all of those cases are in the toolbox of an attorney mounting an argument for 100% permanent total disability. This coincides with a rise in the use of vocational evidence, even in cases where the possibility of a 100% award might not be immediately apparent. It is also important for defense practitioners to be familiar with the holdings of these cases, as we are finding much more occasion in recent years to use or rebut them.
While there was much more discussed at the conferences than included in this article (including a push to raise their hourly rates to $800 per hour), we can distill a general trend from the topics presented. Applicant’s attorneys continue to probe for new and renewed methods to control treatment and QME specialties, and, of course, to increase compensation for their clients and themselves. As always, we will continue to quell these tactics whenever we can, and make sure that our clients are ahead of the curve.