After reading the new WCAB en banc decision in Torres v. AJC Sandblasting, I was tempted to ask, “What took ya so long?”

This is a decision that is long overdue.

With it, the WCAB attempts to send a strong message to lien claimants who pursue frivolous lien claims that lack evidentiary support. This would include so-called phantom liens that are pursued years after the case-in-chief is resolved.

In Torres a lien for MRI services was filed some eight years after the claimed injury and five years after the denied injury claim was settled with the insurer. At a trial the lien claimant put into evidence no medical report demonstrating the basis of its bill, nor any evidence to establish that the claim was industrial in the first place.

Torres clarifies that the burden is on the lien claimant to prove by a preponderance of evidence all elements necessary to establish the validity of the lien before the burden of proof shifts to the defendant. Moreover, the board indicated a willingness to award sanctions, attorney fees and costs against lien claimants who proceed to trial without any evidence or evidence which is incapable of meeting the burden of proof.

The decision notes that:
“Unitech bore the burden of proving that applicant sustained an industrial injury, that it rendered medical treatment in connection with that injury and that the treatment was reasonable and necessary to cure or relieve the effects of the industrial injury. Prior to trial, Unitech was warned that the evidence it proposed to introduce was utterly incapable of proving its claim. By electing to proceed anyway with only an unauthenticated billing statement, Unitech acted in bad faith, and wasted valuable court time on a claim that was “indisputably without merit” and frivolous.”

From the facts in Torres it is not totally clear whether the lien claim was from a legitimate provider who was somehow out of the loop at the time the case settled and who failed to pursue the matter for years, or whether the lien was a “phantom lien” that had little if any factual and procedural justification.

In any event, Torres adds to the changes that are coming under Labor Code 863, making it more difficult for lien claimants who either sleep on their rights or who abuse the system. Lien claimants will no longer be able to show up to “try” liens where there is a lack of underlying documentation.

Here is a link to the Torres decision:
http://www.dir.ca.gov/wcab/EnBancdecisi … S_Tito.pdf

Stay tuned.

Julius Young
www.boxerlaw.com
www.workerscompzone.com

After reading the new WCAB en banc decision in Torres v. AJC Sandblasting, I was tempted to ask, “What took ya so long?” This is a decision that is long overdue. With it, the WCAB attempts to send a strong message to lien claimants who pursue frivolous lien claims that lack evidentiary support. This would

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Cultural attitudes towards marijuana seem to be changing fast.

Last week a majority of Colorado and Washington voters voted to loosen restrictions on marijuana production and use. Currently it is unknown what the federal response will be towards these state efforts. In the last few years in California, pot dispensaries have largely been untouched by federal regulators. But there have been exceptions, such as the 2012 crackdown against large pot dispensaries in Oakland.

Still, the trend is towards greater public acceptance of marijuana.

Against this backdrop I noted an interesting article in the LexisNexis
Workers Comp eNewletter, titled “Up in Smoke: Should Medical Marijuana be Allowed in the California Workers’ Comp System?”

The Lexis Nexis commentator notes that Labor Code Section 4600 governs medical treatment for work injuries. That treatment standard is “cure or relieve”. Labor Code 4600(a) refers to the MTUS adopted by the Administrative Director pursuant to Labor Code Section 5307.

Moreover, as the commentator notes, California Health and Safety Code Section 11362, the Compassionate Use Act of 1996, allows Californians to obtain and use medicinal marijuana that has been prescribed by a physician,

So, the question goes, could a worker be reimbursed for purchasing marijuana? If a primary treating physician prescribes marijuana, can the carrier be compelled to pay for it?

The LexisNexis article notes that this question arose in a recent California case, Cockrell V. Farmers Insurance, 2012 Cal. Wrk. Comp P.D. Lexis 456. In that case the injured worker was a lawyer who had self procured marijuana after suffering a work injury. At the trial level the worker prevailed on his reimbursement claim, obtaining a decision from the judge allowing for reimbursement of the costs of obtaining the marijuana. Apparently an AME had endorsed the idea.

But the WCAB panel reversed and remanded the case to the WCJ, relying on Health and Safety Code 11363.785(d) which says that “nothing in this article shall require a governmental, private, or any other health insurance provider or health care service plan to be liable for any claim for reimbursement for the medical use of marijuana”.

Perhaps the Cockrell case will wind up back at the WCAB panel level again, since the interplay between Labor Code 4600 and Health and Safety Code 11363.785(d) has still not been conclusively interpreted.

And in any event, this issue is likely to surface again in other cases. With marijuana use moving “more mainstream”, the issue will come up again and again, as the stigma of use is removed.

That’s not to say that this is a good thing. Workerscompzone has serious concerns about this trend.

But workers’ comp is a product of societal forces, and the pressure to have marijuana accepted by-and paid for-by comp will be substantial.

Stay tuned.

Julius Young
www.boxerlaw.com
www.workcompcentral.com

Cultural attitudes towards marijuana seem to be changing fast. Last week a majority of Colorado and Washington voters voted to loosen restrictions on marijuana production and use. Currently it is unknown what the federal response will be towards these state efforts. In the last few years in California, pot dispensaries have largely been untouched by

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Insurance Commissioner Dave Jones has scheduled a November 16 hearing that will examine the 2013 rate filing of the WCIRB.

These hearings have usually been held in San Francisco but in this instance the hearing is slated for Sacramento.

Estimates of the projected savings and projected increased costs under SB 863 have been all over the map. Before passage of the bill, Bickmore did an analysis of projected costs and savings. The ultimate bill was somewhat different than the bill that Bickmore analyzed. A later analysis by Aon questioned some of the assumptions regarding costs and savings.

For whatever reason, the Department of Industrial Relations has been very resistant to unveiling any studies or analyses it conducted or obtained that would shed light on costs and savings of SB 863. Parties that have sought such information have been rebuffed, leading to further perception of a lack of transparency at DIR.

In the runup to passage of SB 863, Christine Baker and several prominent stakeholder advocates were quoting projected benefit increases and cost savings, but, aside from Bickmore, the source of those estimates has never been publicly revealed by the DIR.

Meanwhile, the WCIRB did a rate filing which requests no increase in the 2013 pure premium advisory rate (actual workers’ comp rates that insurers charge can follow the recommended rate but are not required to do so).

This created something of a controversy since the WCIRB actuaries had projected increased costs under SB 863. The WCIRB amended its cost projections downward to some extent but after estimating that advisory rates should be $2.61 per $100 of payroll, decided not to amend the filing that recommends $2.38 per $100 of payroll.

Specifically, in a press release dated October 12, 2012 the WCIRB made this interesting statement:
“The WCIRB now estimates the net savings of the provisions of SB 863 that can be evaluated at this time on the costs underlying 2013 policies is 4.4%. (The estimated net savings reflected in the evaluation in the WCIRB’s October 1, 2012 amended filing submission was 4.9%.) This updated evaluation of SB 863 does not affect the pure premium rates proposed in the WCIRB’s Amended January 1, 2013 Pure Premium Rate Filing, which, on average, were targeted at the industry average filed pure premium rate of $2.38 per $100 of payroll. The updated evaluation does increase the actuarially indicated average pure premium rate based on June 30, 2012 experience and the WCIRB’s estimated impact of SB 863 from $2.60 to $2.61 per $100 of payroll. “

Some observers have speculated that these WCIRB rate pricing decisions were political. In any event, the varying studies by Bickmore, Aon, and WCIRB actuaries leads to a sense that the numbers are “funny”.

To some extent this is expected since regulatory implementation of SB 863 will determine the extent of some of the savings.

In any event, the upcoming hearing could be interesting as various analysts weigh in about the costs and savings of SB 863. The upcoming hearing also may give Insurance Commissioner Jones an opportunity to obtain more data directly from the DIR about studies they have commissioned or obtained from other parties about the costs and savings.

Here the statement by the WCIRB on the October 1, 2012 rate filing:
“On August 21, 2012, the WCIRB submitted its January 1, 2013 Pure Premium Rate Filing to the California Insurance Commissioner. In that filing, the WCIRB proposed January 1, 2013 advisory pure premium rates that averaged $2.68 per $100 of payroll, which was 12.6% higher than the industry average filed pure premium rate as of July 1, 2012. Those proposed advisory pure premium rates were based on March 31, 2012 premium and loss experience. In the filing, the Commissioner was advised that the August 21 filing could potentially be amended pending the enactment of Senate Bill No. 863 (SB 863) and the receipt of insurer premium and loss experience valued as of June 30, 2012. “

The WCIB statement continued:

“The WCIRB has completed its review of June 30, 2012 insurer experience and SB 863, which was signed into law by the Governor on September 18, 2012. Loss development continued to deteriorate in the second quarter, resulting in a 2% deterioration in the indicated pure premium rates based on June 30, 2012 experience. In addition, the WCIRB estimates that the SB 863 provisions that could be evaluated at this time will reduce the cost of losses and loss adjustment expenses on 2013 policies by 4.9%. The average indicated January 1, 2013 advisory pure premium rate based on June 30, 2012 experience and the WCIRB current evaluation of SB 863 is $2.60 per $100 of payroll, which is 9.3% above the industry average filed pure premium rate as of July 1, 2012 of $2.38. Typically, the WCIRB proposes pure premium rates consistent with the most current actuarial indication. However, given the unusually high level of uncertainty surrounding SB 863, including regulations that have not yet been promulgated, and the potential for significant additional cost savings beyond that which is currently quantifiable, the WCIRB is not recommending a January 1, 2013 increase in the advisory pure premium rate level. Instead, the WCIRB is proposing January 1, 2013 pure premium rates that average $2.38 per $100 of payroll, which is the industry average filed pure premium rate as of July 1, 2012. Earlier today, the WCIRB submitted its amended January 1, 2013 Pure Premium Rate Filing to the Insurance Commissioner which incorporated new proposed advisory pure premium rates as well as proposed changes to the reporting requirements of the California Workers’ Compensation Uniform Statistical Reporting Plan – 1995 and to the eligibility threshold of the California Workers’ Compensation Experience Rating Plan – 1995.
As SB 863’s enabling regulations take shape over the next several months and beyond, and as additional information is obtained, the WCIRB will continue its analysis and provide ongoing updates to the Commissioner on the cost impact of the reform legislation and its effect on advisory pure premium rates.”

Stay tuned.

Julius Young
www.workerscompzone.com
www.boxerlaw.com