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Dateline Oakland.

Alas, it would be sexier if I could say this dateline was from Timbuktu,
Tunis, or Tbilisi. But the 15th Annual Workers’ Compensation Conference sponsored by the California DWC wrapped up yesterday just a few blocks from my Boxer & Gerson offices. At least the DWC puts on a good conference.

There were way more seminars than one reporter could cover. Here, though, are a few snippets from the conference that caught my attention (note: I’ve chosen to paraphrase the presenters and offer these commentary “bites” to give you a flavor of the meetings).

Workers’ Compensation Judge Colleen S. Casey and Attorney Robert Rassp lectured on “AMA Guides & Substantial Evidence”, including their riff on the top 10 mistakes in doctor’s reports under the AMA guides and how to fix them. These intellectually gifted presenters also focused on developing the record the the AMA guides. It’s great to see “home-grown” California talent taking a lead in lecturing on the AMA rather than some of the pompous self-serving experts from out of state who first helped write the Guides and then established their cottage industry in California consulting on the guides.

Here’s a plug for Rassp’s book, published by Lexis-Nexis, “The Lawyer’s Guide to the AMA Guides and Workers’ Compensation” (I must disclose here: Rassp, Casey and I serve-along with some judges and other attorneys-as consultants to Lexis-Nexis on publication of WCAB panel decisions). But don’t think that affects my plug for Rassp’s book. It’s just an excellent tome on the new interface between California law and the AMA Guides, 5th edition.

Christine King (Northern California Supervising Workers’ Comp Compliance Officer for the DWC Audit Unit) presented on the benefit notice regulations, filed with the Secretary of State on 12/11/07. These regs apply to all notices to be sent on or after 4/9/08. Here they are:
http://www.dir.ca.gov/dwc/DWCPropRegs/B … ations.htm

King (along with Suzanne Marria) also presented on “Utilization Review Investigations”. Reviewing the regs, she reminded the audience that only a physician can delay, deny or modify a treatment decision. The specific issues reviewed must be within the reviewer’s scope of practice and clinical competence. UR is not designed to address causation. All treatment requests do not have to go to UR. And an insurer could have a UR process to approve certain things without even receiving a request.
The UR enforcement regulations have varying penalties depending on the seriousness of the violation (type “a” and type “b” penalties).

Want to see those UR penalty regs adopted in June 2007? Look here for a pdf copy:
http://www.dir.ca.gov/dwc/DWCPropRegs/U … sFinal.pdf

UR organization investigations will be done by a DWC medical unit contractor; claims administrator investigations by the DWC Audit Unit. The 2007 Audit Report is seen here:
http://www.dir.ca.gov/dwc/AuditReport20 … rt2006.pdf

Suzanne Honor (Workers’ Compensation Manager, DWC Medical Unit) and Suzanne Marria (Industrial Relations Counsel III, DWC Legal Unit)
discussed the pending rulemaking on revised QME regs. That process started in November 2007 and there was a 45 day period for public comment as well as hearings in Los Angeles and Northern California.
The DWC is reviewing the comments now and will soon be releasing another version of the proposed regs which will trigger a 15 day public comment period. Want to see the regs in their current form? Look here:
http://www.dir.ca.gov/dwc/DWCPropRegs/q … ations.htm

Marria and Honor noted that the proposed changes will likely include these:
-changes in the panel process and panel request forms
-disclosure of QME conflicts of interest and specified financials
-grounds for replacing a panel QME
-QME minimum availabllity for panels
-restructuring the way QMEs are assigned based on “office locations”
-setting standards for doctor deposition availability

Martha Jones (research program specialist in the DWC’s Research Unit)
spoke on some DWC studies that were undertaken. Phase I was an analysis of return-to-work rates for permanently disabled workers (released January 2007). Phase II was a wage loss study, done in 3 steps. The bottom line? When comparing ratings between the old,
pre-Schwarzenegger rating schedule and the new schedule (the 2005 PDRS) there has been an average reduction of 48.3% in average ratings.
The link to these studies is here:
http://www.dir.ca.gov/dwc/Uncompensated … orInjuredW

Dr. Anne Searcy (Executive Medical Director of the DWC Medical Unit) and Yu-Yee Wu (Industrial Relations Counsel in the DWC Legal Unit) spoke on treatment guidelines (Searcy) and medical provider networks (Wu). Search noted that it’s now MTUS, not just ACOEM. The DWC is borrowing acupuncture guidelines from Colorado and chronic pain guidelines from ODG (Official Disability Guidelines), with some additions. ACOEM has a new chapter on the elbow and the low back but California is not adopting the low back chapter as of yet. An advisory committee of 15 healthcare providers meets with the Unit quarterly to advise on appropriate treatment guidelines. Postsurgical therapy guidelines are being adopted. The Medical Unit will be starting to focus on guidelines for the low back soon; the committee has noted up to 6 sets of guidelines in the literature.

The elbow, chronic pain, and postsurgical guidelines will soon be entering the rulemaking phase, with time for public comments and public hearings. Searcy: we “will do low back for sure”. she invited comments as to what should be done next.

Wu noted that First Health is by far the most utilized MPN. She related a tale about a claimant who was repeatedly told that treatment was authorized only to find that each time the doctor was “not on the list”, causing major treatment delay. The Medical Unit gets complaints that the MPN doctor lists are not updated and accurate. She noted that a minimum of 3 providers is required. There is currently no offical form to file complaints about MPN problems. But parties experienceing problems could contact DWCManagedCare@dir.ca.gov or Ms. Wu at Yu-YeeWu@dir.ca.gov.

Wu noted several cases which found that incomplete and delayed provider listings allow the worker to select a provider outside the MPN (see Andrade v. Ito-Ozawa 2006 Cal Wrk Comp P.D. LEXIS 13; also Metoyer v. Wilshire West Dental, 2005 CAL. WRK COMP P.D. LEXIS 48); also, Bruce Knight v. United Parcel Service , 71 CCC 1423 (2006), a WCAB en banc decision (failure to provide required notice of MPN rights can render the employer or insurer liable for reasonable self-procured medical treatment).

Also covered by Wu was the problem where MPNs are changed or terminated.

And not to be ignored was the case law update by workers compensation judges Robert Kutz, Mark Kahn, and Pamela Foust.

There’s more, particularly “The State of the Insurance Market”. I’ll cover that in the next post. Stay tuned.

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Julius Young
www.boxerlaw.com

Category: Political developments

Julius Young

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