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California Workers' Comp
West Virginia Workers'
2015 Book on Authorization, Utilization Review With 1000 IMR Decisions to Show Why
Treatment is not Being Authorized. Not only did the formalities of the WCAB and the IBR
process change but also the detail requirements in the request for authorization and to get UR
reversal by IMRs. A missed word and a left out explanation, a lack of documents, changes if the
treatment is authorized or if reversed and certified by IMR
Also receive 1500 IBR Decisions summarized
and indexed
8 WEEK 24 LESSON COURSE  IN WORK COMP TREATMENT AND
COLLECTIONS for $325.00 (INDIVIDUAL OR ENTIRE STAFF)
8 WEEK 24 LESSON COURSE  IN WORK COMP
TREATMENT AND COLLECTIONS for $325.00
(INDIVIDUAL OR ENTIRE STAFF)
Or will come to your location for 4 hour for
same fee as course,  for  lecture and
organizing  you collection and treatment
disputes
Getting Treatment Authorized: Guidelines / Common errors element What Must Be shown  In Medical Reports -As Required BY The IMRs to Get Services Treatment Authorized
URINE DRUG SCREEN    = Guidelines = Elements Required in
Documentation =Common Errors= Authorized
ISSUE IN DISPUTE Provider is dissatisfied with denial of
codes 72070 and 72110
ISSUE IN DISPUTE The reimbursement of CPT 17999
for date of service 1/31/2014
ISSUE IN DISPUTE:  Provider is dissatisfied with down
-coding of 99204 to 99203 and reimbursement for
multiple injured workers with separate dates of service.
ISSUE IN DISPUTE : Provider seeking remuneration for
the following medications and
compound medications: NDC 38779187105, NDC
38779273904 , NDC 38779039503,
NDC 38779038803, NDC 38779008202 , NDC
00591367105, NDC 76218121901,
NDC53746011005 and NDC 60505006601 dispensed to
Injured Worker on 05/05/2014
ISSUE IN DISPUTE: Provider seeking remuneration for
97530-59 x 4 Units Physical
Medicine services performed on 02/26/2014–03/05/2014
ISSUE IN DISPUTE :Provider seeking additional
remuneration for WC004 PR4 report
up to 15 pages.Upon second bill review, no additional
payment for WC004 was issued
ISSUE IN DISPUTE: Provider seeking full
remuneration for 82145, 80154,82520
,83925,83925-59,82145-59 Laboratory services
performed on 04/02/2014
ISSUE IN DISPUTE: Provider is dissatisfied with
reimbursement of DRG 454, Inpatient
Services.
ISSUE IN DISPUTE: Provide r seeking remuneration for
Lab Services CPT Codes, 82205, 82520, 83840, 83992 ,
83992, 83925, 83925 - 59, 82145 and 82055 (G4034) for
date of service 01/28/2014
6 Month  24 LESSON
COURSE  IN WORK COMP
TREATMENT AND
COLLECTIONS for $325.00
(INDIVIDUAL OR ENTIRE
STAFF)
Or will come to
your location for 4
hour for same fee
as course,  for  
lecture and
organizing  you
collection and
treatment disputes
ISSUE IN DISPUTE: Provider seeking full remuneration for  99499 Unlisted Evaluation
and Management services representing Functional Restoration Program for service dates
04/07/2014 04/11/2014.
ISSUE IN DISPUTE: Provider questioning Claims Administrator’s re-coding of 99214
Evaluation and Management service provided to Injured Worker on 01/29/214 and $0.00
reimbursement for 99070 -NDC#68453095010 submitted charge.
AMBIEN = Guidelines = Elements Required in Documentation =Common Errors= Authorized
ANAPROX  = Guidelines = Elements Required in Documentation =Common Errors= Authorized
ATIVAN = Guidelines = Elements Required in Documentation =Common Errors= Authorized
CAPSAICIN 0.025%, FLURBIPROFEN 20%, TRAMADOL 10%,MENTHOL 2%, CAMPHOR 2%=
Guidelines = Elements Required in Documentation =Common Errors= Authorized
CARAFATE = Guidelines = Elements Required in Documentation =Common Errors= Authorized
CARISOPRODOL = Guidelines = Elements Required in Documentation =Common Errors= Authorized
CELEBREX= Guidelines = Elements Required in Documentation =Common Errors= Authorized
CLONAZEPAM  = Guidelines = Elements Required in Documentation =Common Errors= Authorized
COLACE= Guidelines = Elements Required in Documentation =Common Errors= Authorized
COMPOUND CREAM= Guidelines = Elements Required in Documentation =Common Errors= Authorized
COMPOUND GABAPENTIN POWDER= Guidelines = Elements Required in Documentation =Common
Errors= Authorized
CYCLOBENZAPRINE= Guidelines = Elements Required in Documentation =Common Errors= Authorized
CYMBALTA= Guidelines = Elements Required in Documentation =Common Errors= Authorized
DENDRACIN= Guidelines = Elements Required in Documentation =Common Errors= Authorized
DIAZEPAM (VALIUM)= Guidelines = Elements Required in Documentation =Common Errors= Authorized
DICLOFENAC  = Guidelines = Elements Required in Documentation =Common Errors= Authorized
DICOPANOL (DIPHENHYDRAMINE)= Guidelines = Elements Required in Documentation =Common
Errors= Authorized
DICYCLOMINE HCL 2= Guidelines = Elements Required in Documentation =Common Errors= Authorized
DILAUDID= Guidelines = Elements Required in
Documentation =Common Errors= Authorized
CARDIAC CLEARANCE   = Guidelines = Elements Required
in Documentation =Common Errors= Authorized
CARDIOLOGY CONSULT = Guidelines = Elements
Required in Documentation =Common Errors= Authorized
CONSULT WITH PAIN MANAGEMENT = Guidelines =
Elements Required in Documentation =Common Errors=
Authorized
CT SCAN = Guidelines = Elements Required in
Documentation =Common Errors= Authorized
EKG = Guidelines = Elements Required in Documentation
=Common Errors= Authorized  EKG
ELECTROENCEPHALOGRAPHY (EEG) = Guidelines =
Elements Required in Documentation =Common Errors=
Authorized
ELECTROMYOGRAM    = Guidelines = Elements
Required in Documentation =Common Errors= Authorized
EMG/NCS   = Guidelines = Elements Required in
Documentation =Common Errors= Authorized
GROUP THERAPY = Guidelines = Elements Required in
Documentation =Common Errors= Authorized
HOME HEALTH CARE = Guidelines = Elements Required
in Documentation =Common Errors= Authorized
SLEEP EVALUATION WITH TESTING= Guidelines =
Elements Required in Documentation =Common Errors=
Authorized
INTRATHECAL PUMP = Guidelines = Elements Required in
Documentation =Common Errors= Authorized
MANIPULATION UNDER ANESTHESIA = Guidelines =
Elements Required in Documentation =Common Errors=
Authorized
NEUROLOGICAL CONSULTATION   = Guidelines =
Elements Required in Documentation =Common Errors=
Authorized
NEUROSTIMULATION THERAPY = Guidelines =
Elements Required in Documentation =Common Errors=
Authorized
REFERRAL TO NEUROSURGEON = Guidelines =
Elements Required in Documentation =Common
Errors= Authorized
NUCLEAR STRESS TEST = Guidelines = Elements
Required in Documentation =Common Errors= Authorized
OCCUPATIONAL THERAPY= Guidelines = Elements
Required in Documentation =Common Errors=
Authorized
PAIN MANAGEMENT    = Guidelines = Elements Required in
Documentation =Common Errors= Authorized
PLATELET RICH PLASMA INJECTION  = Guidelines =
Elements Required in Documentation =Common Errors=
Authorized
PNEUMATIC INTERMITTENT COMPRESSION   =
Guidelines = Elements Required in Documentation =Common
Errors= Authorized
INTERMITTENT COMPRESSION DEVICE= Guidelines =
Elements Required in Documentation =Common Errors=
Authorized
PRE-OP TESTING = Guidelines = Elements Required in
Documentation =Common Errors= Authorized
PSYCHE TREATMENT= Guidelines = Elements Required in
Documentation =Common Errors= Authorized
PSYCHIATRIC MEDICATIONS MANAGEMENT   = Guidelines = Elements Required in Documentation
=Common Errors= Authorized
PSYCHIATRY VISITS   = Guidelines = Elements Required
in Documentation =Common Errors= Authorized
PSYCHOLOGICAL EVALUATION = Guidelines = Elements
Required in Documentation =Common Errors= Authorized
PSYCHOPHARMACOLOGY MANAGEMENT    =
Guidelines = Elements Required in Documentation
=Common Errors= Authorized
PSYCHOTHERAPY      = Guidelines = Elements
Required in Documentation =Common Errors=
Authorized
SKILLED NURSING  = Guidelines = Elements
Required in Documentation =Common Errors=
Authorized
SPINAL SURGICAL CONSULTATION= Guidelines =
Elements Required in Documentation =Common Errors=
Authorized
DEBRIDEMENT OF THE RIGHT SHOULDER =
Guidelines = Elements Required in Documentation
=Common Errors= Authorized
TRIGGER POINT AND TENDER SPOT INJECTIONS =
Guidelines = Elements Required in Documentation =Common
Errors= Authorized
LUMBAR FUSION W/ INSTRUMENTATION, USE
AUTOGRAFT AND/OR ALLOGRAFT:= Guidelines =
Elements Required in Documentation =Common Errors=
Authorized
SHOULDER OPEN ROTATOR CUFF REPAIR = Guidelines =
Elements Required in Documentation =Common Errors=
Authorized
KNEE ARTHROSCOPY= Guidelines = Elements
Required in Documentation =Common Errors=
Authorized
SHOULDER ARTHROSCOPY = Guidelines = Elements
Required in Documentation =Common Errors= Authorized
WORK HARDENING VISITS = Guidelines = Elements
Required in Documentation =Common Errors= Authorized
DUEXIS= Guidelines = Elements Required in Documentation =Common Errors= Authorized
EFFEXOR= Guidelines = Elements Required in Documentation =Common Errors= Authorized
FENTANYL= Guidelines = Elements Required in Documentation =Common Errors= Authorized
FEXMID = Guidelines = Elements Required in Documentation =Common Errors= Authorized
FLECTOR= Guidelines = Elements Required in Documentation =Common Errors= Authorized
FLEXIRIL= Guidelines = Elements Required in Documentation =Common Errors= Authorized
FLURBIPROFEN CREAM,= Guidelines = Elements Required in Documentation =Common Errors= Authorized
FLURIFLEX (FLURBIPROFEN/CYCLOBENZAPRINE 15/10 %) CREAM 1= Guidelines = Elements
Required in Documentation =Common Errors= Authorized
GABAPENTIN= Guidelines = Elements Required in Documentation =Common Errors= Authorized
HYDROCODONE= Guidelines = Elements Required in Documentation =Common Errors= Authorized
DME Varies  = Guidelines = Elements Required in
Documentation =Common Errors= Authorized  EKG
IBUPR= Guidelines = Elements Required in Documentation =Common Errors= Authorized
KETOPROFEN= Guidelines = Elements Required in Documentation =Common Errors= Authorized
KLONOPIN= Guidelines = Elements Required in Documentation =Common Errors= Authorized
LIDOCAINE PAD= Guidelines = Elements Required in Documentation =Common Errors= Authorized
LIDODERM PATCH= Guidelines = Elements Required in Documentation =Common Errors= Authorized
LINZESS= Guidelines = Elements Required in Documentation =Common Errors= Authorized
LORTAB ELIXIR= Guidelines = Elements Required in Documentation =Common Errors= Authorized
LYRICA= Guidelines = Elements Required in Documentation =Common Errors= Authorized
MELOXICAM (MOBIC)= Guidelines = Elements Required in Documentation =Common Errors= Authorized
METHODERM OINTMENT= Guidelines = Elements Required in Documentation =Common Errors=
Authorized
MENTHODERM= Guidelines = Elements Required in Documentation =Common Errors= Authorized
MORPHINE SULFATE= Guidelines = Elements Required in Documentation =Common Errors= Authorized
MS CONTIN= Guidelines = Elements Required in Documentation =Common Errors= Authorized
NABUMETONE= Guidelines = Elements Required in Documentation =Common Errors= Authorized
NAPROXEN= Guidelines = Elements Required in Documentation =Common Errors= Authorized
NOCTURNAL OBSTRUCTIVE AIRWAY ORAL APPLIANCE / DECAY OR FRACTURED TEETH=
Guidelines = Elements Required in Documentation =Common Errors= Authorized
NORCO= Guidelines = Elements Required in Documentation =Common Errors= Authorized
NUCYNTA= Guidelines = Elements Required in Documentation =Common Errors= Authorized
OMEPRAZOLE= Guidelines = Elements Required in Documentation =Common Errors= Authorized
ONDANSETRON ODT = Guidelines = Elements Required in Documentation =Common Errors= Authorized
From Program: Second Review and IBR Response:    
From Program: Second Review and IBR Response:    63047-62-22 & 63048-62-22 x2 units Additional
remuneration for Co-Surgeon Services relating to 63047-62-22 Laminectomy, facetectomy and
foraminotomy (unilateral or bilateral with decompression of spinal cord, cauda equina and/or nerve
root[s], [eg, spinal or lateral recess stenosis]), single vertebral segment; lumbar & add -on code
63048-62-22 Laminectomy, facetectomy and foraminotomy (unilateral or bilateral with decompression of
spinal cord, cauda equina and/or nerve root[s], [eg, spinal or lateral recess stenosis]), single vertebral
segment; each additional segment, cervical, thoracic, or lumbar (list separately in addition to code for
primary procedure)x 2 Units, performed on 08/29/2014
From Program: Second Review and IBR Response:    IBR unable to calculate a rate of reimbursement for
4 ounces of Keratek Gel as the NDC# provided appears to be invalid and the submitted invoice does not
indicate a per bottle weight of the ’24 bottles’ reflected. 99070  NDC# 54162054004 QTY 113
From Program: Second Review and IBR Response:    As a contractual agreement between the Provider
and the Claims Administrator does not exist; OMFS will be utilized to calculate reimbursement.•Based
on information reviewed, additional reimbursement for codes 99213 and WC002 is warranted
From Program: Second Review and IBR Response:    96101 -Psychological testing (includes
psychodiagnostic assessment of emotionality, intellectual abilities, personality and psychopathology, eg,
MMPI, Rorschach, WAIS), per hour of the psychologist's or physician's time, both face-to-face time
administering Tests to the patient and time interpreting these test results and preparing the report
From Program: Second Review and IBR Response:    
From Program: Second Review and IBR Response:    
From Program: Second Review and IBR Response:    J2278-KD NDC 418860072010 documentation
indicates Prialt 100 mcg/1 ml x 6 viles of single dose ampule administered to Intrathecal Pain Pump
$3,960.00
2015 Posted Articles
From Program 2015 Papers Articles:WC:Collection Paper vs. Providers'
Receivables 10 Cents on The Dollar?
From Program 2015 Papers Articles: We Fooled Providers for So Long,
They Now Turn a Deaf Ear to Us--Help.
From Program 2015 Papers Articles: WC: Providers Have Always Been
Underpaid, Just No One Ever Told Them
From Program 2015 Papers Articles: WC: Receivables= Strategic,
Tactical,  Operational & Contingency Planning
From Program 2015 Papers Articles: WC: Reading Laws Incorrectly,
Putting Receivables on a Path of Default
From Program 2015 Papers Articles: Chiropractic Beyond 24 w/o Surgery
/ When Necessary for Wrist and Hand
From Program 2015 Papers Articles: WC: Why Some Providers are
Cheating Themselves out of Payments Due
From Program 2015 Papers Articles:
Adjusters-Liens, Who are They, What Did They
Do with The Old Adjusters
From Program 2015 Papers Articles :WC: Frauds
That Survived SB 863, PPOs, MPNs, Prescription
Drug Cards
From Program 2015 Papers Articles: WC: The Power Of Requests for 2nd
Bill Review and Notice to File Lien
From Program 2015 Papers Articles: UR Certification, Same as Authorized,
PBM, MPN, PPO Denied Body Part?
From Program 2015 Papers Articles: The Day of a Work Comp Collector,
That What We Perceive No Longer True
From Program 2015 Papers Articles: Mythical Search For The Answer to
94% Authorized Treatment/ Services
From Program 2015 Papers Articles: WC: Treatment / Collection Disputes
The One Thing That Can No Longer be Glossed Over
From Program 2015 Papers Articles: WC: Understanding MTUS, ODG, ACOEM
and Non-MTUS Treatment Guidelines.
From Program 2015 Papers Articles: DWC States No More Above Fee Schedule
for...
From Program 2015 Papers Articles: (PBM),
DISCOUNTED PAYMENTS FOR
PHARMACY, BIGGEST FRAUD SINCE PPOS
OR ?
From Program 2015 Papers Articles:
determination of Medical-Legal Dispute, Interpreter,
Copy Service,
From Program 2015 Papers Articles: WC: Bill
Reviews / 2nd Reviews--- Insurance Companies
Not Playing Nice
Program: 2015 Education Video Lectures
Program: Objections and Responses As Determined by decisions : ML 104:Claims Administrator reimbursed $2636.72 indicating on the Explanation of Review “In
accordance with the California Official Medical Fee Schedule, Section 9789.15.1, this service was reduced due to the non-physician practitioner (NPP) payment methodology.
(MNPR)  --incorrect
Objections to  How Law Decided If Valid and Or Response:
Program: Objections and Responses As Determined by decisions :     claims administrator denied code indicating on the Explanation of Review “Service/item included
in the value of other services per CCI edits. Related service could be on separate bill.” incorrect-    Provider billed code 96101-59 along with 99205.
Program: Objections and Responses As Determined by decisions :Claims administrator reimbursed $59.12 indicating on the Explanation of Review “The number of units
billed for this procedure code exceeds the reasonable number usually provided in a given setting as defined within the Medically Unlikely Edits (MUEs) which is published and
maintained by the Centers for Medicare and Medicaid Services” This denial is incorrect as these are lab charges not physician charges.
Program: Objections and Responses As Determined by decisions : Claims Administrator reimbursed $113.34 of billed amount $1396.80 indicating on the Explanation of
Review “Charge for pharmaceuticals exceed the fees established by the fee schedule/UCR rates” Compound Medication Claim Administrator Incorrect
Program: Objections and Responses As Determined by decisions : Provider seeking remuneration for the following Ambulatory Services performed on 11/03/2014: 64635-
SG $860.00; 64635 -SG-50 $430.00;64636-SG $568.00; & 64636-SG-50 $568.00. •Claims Administrator denial rational: “Reimbursement for this service is not payable to
Ambulatory Surgical Centers  --- Incorrect
Program: Objections and Responses As Determined by decisions :The Claims Administrator did not reimburse the Provider based on the Multiple Endoscopy guidelines as
described in the OMFS Physician Fee Schedule Regulation effective January 1, 2014. Therefore, reimbursement of code 29881 is warranted.  
Program: Objections and Responses As Determined by decisions :G0260-LT  Provider billed the disputed CPT codes on a UB04, bill type 831 for date of service
10/02/2014. •Claims Administrator reimbursement rational: “Service not paid under outpatient facility fee schedule  - incorrect
Program: Objections and Responses As Determined by decisions  Med-Legal ML104 services performed on 12/05/2014.•Claims Administrator reimbursed the Provider
$8,813.54 of $11,313.54 with the following rational: “89 Units Workers Compensation Fee Schedule Adjustment.” •CMS 1500 Form indicates the Provider billed 180 Units
Program: Objections and Responses As Determined by decisions : 95913 nerve conduction studies; 13 or more studies, performed on 9/26/2014. •Claims Administrator
denied the service with the following rational: “The documentation does not support the level of service billed. Reimbursement was made for a code that is supported by the
Documentation  submitted with the billing .” Reimbursed as 95912 Nerve conduction studies; 11-12 studies
Program: Objections and Responses As Determined by decisions :Claims administrator down coded ML 104 to ML 102 indicating on the Explanation of Review
“Documentation doesn’t support the level of services” and “Lower ML 104 to ML 102.
Program: Objections and Responses As Determined by decisions : Provider seeking full remuneration for 99214 Evaluation and Management Services performed on
10/27/2014.•Claims Administrator applied reimbursement relating to CPT 99213 with the following rational: “The documentation doesn’t support the level of service billed.
Reimbursement was made for a code that is supported by the description and documentation submitted with the billing
Program: Objections and Responses As Determined by decisions : 63012-59 and 63047-59 for date of service 4/7/2014.•Claims Administrator denied both codes indicating
on the Explanation of Review “National Correct Coding Initiative Edit–either mutually exclusive of or integral to another service performed on the same day”; “The benefit for
this service is included in the payment/allowance for another service/procedure that has already been adjudicated”and “No separate payment was made because the value of the
service is included within the value of another service performed on the same day.”
Program: Objections and Responses As Determined by decisions :CPT 26320, 26320-51 x 2 units. •Provider billed the disputed CPT codes on a UB04, bill type 831 for
date of service 11/11/2014. •Claims Administrator reimbursement rational: “Pre-Authorization Required, Reimbursement Denied.” •Authorization Letter was submitted as part
of the IBR documentation.
Program: Objections and Responses As Determined by decisions :Remuneration for Inpatient Hospital DRG 0470 for dates of service 09/14/2014 –09/20/2014.• Claims
Administrator based reimbursement with the following rational: “PPO Amount.”•Contractual agreement not available for IBR
Program: Objections and Responses As Determined by decisions : Hospital Outpatient remuneration for 22551 Neck Spine Fusion performed on 09/09/2014.• The Claims
Administrator reimbursed $3,941.21 (EOR 10/22/2014 & Additional Payment 3/31/2015) with the following rational: “This charge was adjusted to comply with the rules and
the rates of the contract indicated.”
Program: Objections and Responses As Determined by decisions :ISSUE IN DISPUTE: Provider is dissatisfied with denial of code 90837 for multiple dates of
service. •Claims Administrator denied codes indicating on the Explanation of Review “CPT code submitted is based on service time and documentation does not
support the time spent on this procedure.” • -Psychotherapy, 60 minutes with patient and/or family member
Program: Objections and Responses As Determined by decisions : CPT 29876-RT and 29881-RT. •Provider billed the disputed CPT codes on a UB04, bill type 131 for
date of service 6/13/2014. •Claims Administrator reimbursement rational: “The charge exceeds the Official Medical Fee Schedule allowance.”
Program: Objections and Responses As Determined by decisions :ML104-95 Evaluation, 96101 and 96118 Psychological Testing performed on Injured
Worker 10/07/2014. •Claims Administrator reimbursed $0.00 of $6,331.45 with the following rational: “Claim denied and is currently in litigation.
Program: Objections and Responses As Determined by decisions : Provider is billing their services as outpatient services in which the outpatient ruling does not
list long term care hospitals as being exempt from the fee schedule. They are exempt from IPPS, but not
OPPS in which case the OPPS rules would still apply to this bill. Additionally, the provider is within the PPO network and subject to further reductions.”
Program: Objections and Responses As Determined by decisions :ISSUE IN DISPUTE: Denial of CPT code 63650-59
Program: Objections and Responses As Determined by decisions :Reimbursement of code 95913.•Claims Administrator reimbursed $179.49 indicating on the
Explanation of Review “The Official medical Fee Schedule does not list this code. An allowance has been made for a comparable service”• CPT 95913, Nerve
conduction studies; 13 or more studies,is listed on the Medical Fee Schedule. •Provider submitted an EMG/NCV and Neurodiagnostic Testing and Consultation
Report of Bilateral Lower Extremities where he documented 13 different nerve conduction studies performed on date of service 9/17/2014
Program: Objections and Responses As Determined by decisions :ISSUE IN DISPUTE: Provider disputing reimbursement for ML104, 73110, 72110, 73562,
73030 and 72040 services performed on 03/27/2014. •Claims Administrator ML104 reimbursement rational: “FCE Not Requested,” and “Not Authorized.” •FCE
“Functional Capacity
Program: Objections and Responses As Determined by decisions : Denial of code 99199 Special Report.
Program: Objections and Responses As Determined by decisions : Denial of ML 104-94 - $10,687.50 ordered paid
Getting Treatment Authorized: Guidelines / Common errors element What Must Be shown  In Medical Reports -As Required BY The IMRs to Get Services Treatment Authorized
Program Files Medical Necessity RFA:  Right Elbow Cubital Tunnel Release: Overturned
Program Files Medical Necessity RFA: CT scan of the lumbar spine with 3D reconstruction : Overturned
Program Files Medical Necessity RFA: Left knee arthroscopy with partial meniscectomy, possible
chondroplasty and possible removal of loose bodies: Overturned
Program Files Medical Necessity RFA: Acupuncture QTY: 6:   Overturned
Program Files Medical Necessity RFA: DEXILANT 60 MG #30 :Overturned
Program Files Medical Necessity RFA: Electromyography (EMG) of the bilateral upper extremities:
Overturned
Program Files Medical Necessity RFA: Left total hip replacement: Overturned
Program Files Medical Necessity RFA: Six (6) sessions of physical therapy (PT) for the bilateral elbows
:Overturned
Program Files Medical Necessity RFA: Nerve Conduction Velocity (NCV) of the bilateral upper
extremities Overturned
Program Files Medical Necessity RFA: 60 Lidoderm patches 5% 5 refills  : Overturned
Program Files Medical Necessity RFA: ADDITIONAL 6 SESSIONS OF INDIVIDUAL
PSYCHOTHERAPY:   Overturned
Program Files Medical Necessity RFA: Tramadol ER 150mg, #90 : Overturned
Program Files Medical Necessity RFA: Cervical Epidural Steroid Injection at C3-C4 and C4-C5
:Overturned  
Program Files Medical Necessity RFA Cervical Epidurogram : Overturned
Program Files Medical Necessity RFA: PANTOPRAZOLE SOD. DR 40MG #30 WITH 5 REFILLS.:
Overturned
Program Files Medical Necessity RFA: Diagnostic Left L4 Medial Branch Facet Block QTY: 1.00
:Overturned
Program Files Medical Necessity RFA: CONSULTATION WITH  PAIN MANAGEMENT: Overturned
Program Files Medical Necessity RFA: LEFT CARPAL TUNNEL RELEASE SURGERY :
Overturned
Program Files Medical Necessity RFA: Additional Post op Physical therapy 3 times 4 :Overturned
Program Files Medical Necessity RFA: POST OCCUPATIONAL THERAPY: 6 SESSIONS (2X3),
FOR BILATERAL CARPAL TUNNEL SYNDROME AND LATERAL EPICONDYLITIS: Overturned
Program Files Medical Necessity RFA: Left total ankle replacement :Overturned
Program Files Medical Necessity RFA: Cervical external bone stimulator :Overturned
Program Files Medical Necessity RFA: L4-L5 EPIDURAL STEROID INJECTION W FLUOROSCOPY
:Overturned
Program Files Medical Necessity RFA: INTERNAL MEDICINE EVALUATION FOR SURGICAL
CLEARANCE PURPOSES: Overturned
Program Files Medical Necessity RFA: Lumbar ESI at L5-S1: Overturned
Program Files Medical Necessity RFA: Computed Tomography (CT) of the Cervical Spine: Overturned
Program Files Medical Necessity RFA: Anaprox DS 550mg #60: Overturned
Program Files Medical Necessity RFA: Physical Therapy (3x week/6 weeks, 18 Total Visits: Overturned
Program Files Medical Necessity RFA: Multidisciplinary Pain Rehab Program for 20 days: Overturned
Program Files Medical Necessity RFA:
Program Files Medical Necessity RFA:
Program Files Medical Necessity RFA:
Program Files Medical Necessity RFA:
Program Files Medical Necessity RFA:
Program Files Medical Necessity RFA:
Program Files Medical Necessity RFA:
Program Files Medical Necessity RFA:
Program Files Medical Necessity RFA:
Program Authorization UR Denials Overturned by IMR:
Psychotropic therapy, once per week for one week: Overturned
Program Authorization UR Denials Overturned by IMR:
TWELVE (12) PHYSIOTHERAPY VISITS :Overturned
Program Authorization UR Denials Overturned by IMR: initial
Ortho Consult for Left Elbow and Left Wrist: Overturned
Program Authorization UR Denials Overturned by IMR: Pain
management consultation: Overturned
Program Authorization UR Denials Overturned by IMR:
Clonidine 0.1mg #90: Overturned
Program Authorization UR Denials Overturned by IMR: MRI
Arthrogram Right Ankle:Overturned
Program Authorization UR Denials Overturned by IMR: Pain
Management Consultation:Overturned
Program Authorization UR Denials Overturned by IMR:
POST-OP PHYSICAL THERAPY FOR THE RIGHT SHOULDER 3
X 4:Overturned
Program Authorization UR Denials Overturned by IMR:
Follow-up internal medicine evaluation: Overturned
Program Authorization UR Denials Overturned by IMR
Neurosurgical consult: Overturned
Program Authorization UR Denials Overturned by IMR
Retrospective request for Norco 10/325 mg #60
DOS:1/24/14:Overturned
Program Authorization UR Denials Overturned by IMR: Right
Shoulder Arthroscopic Rotator Cuff Repair with Decompression:
Overturned
Program Authorization UR Denials Overturned by IMR: Med
panel to evaluate hepatic and renal function: Overturned
Program Authorization UR Denials Overturned by IMR:
Psychological Evaluation: Overturned
Program Authorization UR Denials Overturned by IMR: Left
Knee Video Arthroscopy, Medial Meniscectomy : Overturned

Labor Code - LAB  DIVISION 4. WORKERS' COMPENSATION AND INSURANCE [3200 - 6002]

Tuesday, June 16, 2015

8:55 AM

Labor Code - LAB  DIVISION 4. WORKERS' COMPENSATION AND INSURANCE [3200 - 6002]

  ( Heading of Division 4 amended by Stats. 1979, Ch. 373. )

PART 2. COMPUTATION OF COMPENSATION [4451 - 4856]

  ( Part 2 enacted by Stats. 1937, Ch. 90. )

CHAPTER 2. Compensation Schedules [4550 - 4856]

  ( Chapter 2 enacted by Stats. 1937, Ch. 90. )

ARTICLE 2. Medical and Hospital Treatment [4600 - 4614.1]

  ( Article 2 enacted by Stats. 1937, Ch. 90. )

4600.

  

(a) Medical, surgical, chiropractic, acupuncture, and hospital treatment, including nursing, medicines, medical and surgical supplies, crutches, and apparatuses, including orthotic and prosthetic devices and services, that is reasonably required to cure or relieve the injured worker from the effects of his or her injury shall be provided by the employer. In the case of his or her neglect or refusal reasonably to do so, the employer is liable for the reasonable expense incurred by or on behalf of the employee in providing treatment.

(b) As used in this division and notwithstanding any other law, medical treatment that is reasonably required to cure or relieve the injured worker from the effects of his or her injury means treatment that is based upon the guidelines adopted by the administrative director pursuant to Section 5307.27.

(c) Unless the employer or the employer’s insurer has established or contracted with a medical provider network as provided for in Section 4616, after 30 days from the date the injury is reported, the employee may be treated by a physician of his or her own choice or at a facility of his or her own choice within a reasonable geographic area. A chiropractor shall not be a treating physician after the employee has received the maximum number of chiropractic visits allowed by subdivision (c) of Section 4604.5.

(d) (1) If an employee has notified his or her employer in writing prior to the date of injury that he or she has a personal physician, the employee shall have the right to be treated by that physician from the date of injury if the employee has health care coverage for nonoccupational injuries or illnesses on the date of injury in a plan, policy, or fund as described in subdivisions (b), (c), and (d) of Section 4616.7.

(2) For purposes of paragraph (1), a personal physician shall meet all of the following conditions:

(A) Be the employee’s regular physician and surgeon, licensed pursuant to Chapter 5 (commencing with Section 2000) of Division 2 of the Business and Professions Code.

(B) Be the employee’s primary care physician and has previously directed the medical treatment of the employee, and who retains the employee’s medical records, including his or her medical history. “Personal physician” includes a medical group, if the medical group is a single corporation or partnership composed of licensed doctors of medicine or osteopathy, which operates an integrated multispecialty medical group providing comprehensive medical services predominantly for nonoccupational illnesses and injuries.

(C) The physician agrees to be predesignated.

(3) If the employee has health care coverage for nonoccupational injuries or illnesses on the date of injury in a health care service plan licensed pursuant to Chapter 2.2 (commencing with Section 1340) of Division 2 of the Health and Safety Code, and the employer is notified pursuant to paragraph (1), all medical treatment, utilization review of medical treatment, access to medical treatment, and other medical treatment issues shall be governed by Chapter 2.2 (commencing with Section 1340) of Division 2 of the Health and Safety Code. Disputes regarding the provision of medical treatment shall be resolved pursuant to Article 5.55 (commencing with Section 1374.30) of Chapter 2.2 of Division 2 of the Health and Safety Code.

(4) If the employee has health care coverage for nonoccupational injuries or illnesses on the date of injury in a group health insurance policy as described in Section 4616.7, all medical treatment, utilization review of medical treatment, access to medical treatment, and other medical treatment issues shall be governed by the applicable provisions of the Insurance Code.

(5) The insurer may require prior authorization of any nonemergency treatment or diagnostic service and may conduct reasonably necessary utilization review pursuant to Section 4610.

(6) An employee shall be entitled to all medically appropriate referrals by the personal physician to other physicians or medical providers within the nonoccupational health care plan. An employee shall be entitled to treatment by physicians or other medical providers outside of the nonoccupational health care plan pursuant to standards established in Article 5 (commencing with Section 1367) of Chapter 2.2 of Division 2 of the Health and Safety Code.

(e) (1) When at the request of the employer, the employer’s insurer, the administrative director, the appeals board, or a workers’ compensation administrative law judge, the employee submits to examination by a physician, he or she shall be entitled to receive, in addition to all other benefits herein provided, all reasonable expenses of transportation, meals, and lodging incident to reporting for the examination, together with one day of temporary disability indemnity for each day of wages lost in submitting to the examination.

(2) Regardless of the date of injury, “reasonable expenses of transportation” includes mileage fees from the employee’s home to the place of the examination and back at the rate of twenty-one cents ($0.21) a mile or the mileage rate adopted by the Director of Human Resources pursuant to Section 19820 of the Government Code, whichever is higher, plus any bridge tolls. The mileage and tolls shall be paid to the employee at the time he or she is given notification of the time and place of the examination.

(f) When at the request of the employer, the employer’s insurer, the administrative director, the appeals board, or a workers’ compensation administrative law judge, an employee submits to examination by a physician and the employee does not proficiently speak or understand the English language, he or she shall be entitled to the services of a qualified interpreter in accordance with conditions and a fee schedule prescribed by the administrative director. These services shall be provided by the employer. For purposes of this section, “qualified interpreter” means a language interpreter certified, or deemed certified, pursuant to Article 8 (commencing with Section 11435.05) of Chapter 4.5 of Part 1 of Division 3 of Title 2 of, or Section 68566 of, the Government Code.

(g) If the injured employee cannot effectively communicate with his or her treating physician because he or she cannot proficiently speak or understand the English language, the injured employee is entitled to the services of a qualified interpreter during medical treatment appointments. To be a qualified interpreter for purposes of medical treatment appointments, an interpreter is not required to meet the requirements of subdivision (f), but shall meet any requirements established by rule by the administrative director that are substantially similar to the requirements set forth in Section 1367.04 of the Health and Safety Code. The administrative director shall adopt a fee schedule for qualified interpreter fees in accordance with this section. Upon request of the injured employee, the employer or insurance carrier shall pay for interpreter services. An employer shall not be required to pay for the services of an interpreter who is not certified or is provisionally certified by the person conducting the medical treatment or examination unless either the employer consents in advance to the selection of the individual who provides the interpreting service or the injured worker requires interpreting service in a language other than the languages designated pursuant to Section 11435.40 of the Government Code.

(h) Home health care services shall be provided as medical treatment only if reasonably required to cure or relieve the injured employee from the effects of his or her injury and prescribed by a physician and surgeon licensed pursuant to Chapter 5 (commencing with Section 2000) of Division 2 of the Business and Professions Code, and subject to Section 5307.1 or 5703.8. The employer shall not be liable for home health care services that are provided more than 14 days prior to the date of the employer’s receipt of the physician’s prescription.

(Amended by Stats. 2014, Ch. 217, Sec. 1. Effective January 1, 2015.)

4600.1.

  

(a) Subject to subdivision (b), any person or entity that dispenses medicines and medical supplies, as required by Section 4600, shall dispense the generic drug equivalent.

(b) A person or entity shall not be required to dispense a generic drug equivalent under either of the following circumstances:

(1) When a generic drug equivalent is unavailable.

(2) When the prescribing physician specifically provides in writing that a nongeneric drug must be dispensed.

(c) For purposes of this section, “dispense” has the same meaning as the definition contained in Section 4024 of the Business and Professions Code.

(d) Nothing in this section shall be construed to preclude a prescribing physician, who is also the dispensing physician, from dispensing a generic drug equivalent.

(Repealed and added by Stats. 2003, Ch. 639, Sec. 24. Effective January 1, 2004.)

4600.2.

  

(a) Notwithstanding Section 4600, when a self-insured employer, group of self-insured employers, insurer of an employer, or group of insurers contracts with a pharmacy, group of pharmacies, or pharmacy benefit network to provide medicines and medical supplies required by this article to be provided to injured employees, those injured employees that are subject to the contract shall be provided medicines and medical supplies in the manner prescribed in the contract for as long as medicines or medical supplies are reasonably required to cure or relieve the injured employee from the effects of the injury.

(b) Nothing in this section shall affect the ability of employee-selected physicians to continue to prescribe and have the employer provide medicines and medical supplies that the physicians deem reasonably required to cure or relieve the injured employee from the effects of the injury.

(c) Each contract described in subdivision (a) shall comply with standards adopted by the administrative director. In adopting those standards, the administrative director shall seek to reduce pharmaceutical costs and may consult any relevant studies or practices in other states. The standards shall provide for access to a pharmacy within a reasonable geographic distance from an injured employee’s residence.

(Added by Stats. 2002, Ch. 6, Sec. 60. Effective January 1, 2003.)

4600.3.

  

(a) (1) Notwithstanding Section 4600, when a self-insured employer, group of self-insured employers, or the insurer of an employer contracts with a health care organization certified pursuant to Section 4600.5 for health care services required by this article to be provided to injured employees, those employees who are subject to the contract shall receive medical services in the manner prescribed in the contract, providing that the employee may choose to be treated by a personal physician, personal chiropractor, or personal acupuncturist that he or she has designated prior to the injury, in which case the employee shall not be treated by the health care organization. Every employee shall be given an affirmative choice at the time of employment and at least annually thereafter to designate or change the designation of a health care organization or a personal physician, personal chiropractor, or personal acupuncturist. The choice shall be memorialized in writing and maintained in the employee’s personnel records. The employee who has designated a personal physician, personal chiropractor, or personal acupuncturist may change their designated caregiver at any time prior to the injury. Any employee who fails to designate a personal physician, personal chiropractor, or personal acupuncturist shall be treated by the health care organization selected by the employer. If the health care organization offered by the employer is the workers’ compensation insurer that covers the employee or is an entity that controls or is controlled by that insurer, as defined by Section 1215 of the Insurance Code, this information shall be included in the notice of contract with a health care organization.

(2) Each contract described in paragraph (1) shall comply with the certification standards provided in Section 4600.5, and shall provide all medical, surgical, chiropractic, acupuncture, and hospital treatment, including nursing, medicines, medical and surgical supplies, crutches, and apparatus, including artificial members, that is reasonably required to cure or relieve the effects of the injury, as required by this division, without any payment by the employee of deductibles, copayments, or any share of the premium. However, an employee may receive immediate emergency medical treatment that is compensable from a medical service or health care provider who is not a member of the health care organization.

(3) Insured employers, a group of self-insured employers, or self-insured employers who contract with a health care organization for medical services shall give notice to employees of eligible medical service providers and any other information regarding the contract and manner of receiving medical services as the administrative director may prescribe. Employees shall be duly notified that if they choose to receive care from the health care organization they must receive treatment for all occupational injuries and illnesses as prescribed by this section.

(b) Notwithstanding subdivision (a), no employer which is required to bargain with an exclusive or certified bargaining agent which represents employees of the employer in accordance with state or federal employer-employee relations law shall contract with a health care organization for purposes of Section 4600.5 with regard to employees whom the bargaining agent is recognized or certified to represent for collective bargaining purposes pursuant to state or federal employer-employee relations law unless authorized to do so by mutual agreement between the bargaining agent and the employer. If the collective bargaining agreement is subject to the National Labor Relations Act, the employer may contract with a health care organization for purposes of Section 4600.5 at any time when the employer and bargaining agent have bargained to impasse to the extent required by federal law.

(c) (1) When an employee is not receiving or is not eligible to receive health care coverage for nonoccupational injuries or illnesses provided by the employer, if 90 days from the date the injury is reported the employee who has been receiving treatment from a health care organization or his or her physician, chiropractor, acupuncturist, or other agent notifies his or her employer in writing that he or she desires to stop treatment by the health care organization, he or she shall have the right to be treated by a physician, chiropractor, or acupuncturist or at a facility of his or her own choosing within a reasonable geographic area.

(2) When an employee is receiving or is eligible to receive health care coverage for nonoccupational injuries or illnesses provided by the employer, and has agreed to receive care for occupational injuries and illnesses from a health care organization provided by the employer, the employee may be treated for occupational injuries and diseases by a physician, chiropractor, or acupuncturist of his or her own choice or at a facility of his or her own choice within a reasonable geographic area if the employee or his or her physician, chiropractor, acupuncturist, or other agent notifies his or her employer in writing only after 180 days from the date the injury was reported, or upon the date of contract renewal or open enrollment of the health care organization, whichever occurs first, but in no case until 90 days from the date the injury was reported.

(3) For purposes of this subdivision, an employer shall be deemed to provide health care coverage for nonoccupational injuries and illnesses if the employer pays more than one-half the costs of the coverage, or if the plan is established pursuant to collective bargaining.

(d) An employee and employer may agree to other forms of therapy pursuant to Section 3209.7.

(e) An employee enrolled in a health care organization shall have the right to no less than one change of physician on request, and shall be given a choice of physicians affiliated with the health care organization. The health care organization shall provide the employee a choice of participating physicians within five days of receiving a request. In addition, the employee shall have the right to a second opinion from a participating physician on a matter pertaining to diagnosis or treatment from a participating physician.

(f) Nothing in this section or Section 4600.5 shall be construed to prohibit a self-insured employer, a group of self-insured employers, or insurer from engaging in any activities permitted by Section 4600.

(g) Notwithstanding subdivision (c), in the event that the employer, group of employers, or the employer’s workers’ compensation insurer no longer contracts with the health care organization that has been treating an injured employee, the employee may continue treatment provided or arranged by the health care organization. If the employee does not choose to continue treatment by the health care organization, the employer may control the employee’s treatment for 30 days from the date the injury was reported. After that period, the employee may be treated by a physician of his or her own choice or at a facility of his or her own choice within a reasonable geographic area.

(Amended by Stats. 2002, Ch. 6, Sec. 61. Effective January 1, 2003.)

4600.35.

  

Any entity seeking to reimburse health care providers for health care services rendered to injured workers on a capitated, or per person per month basis, shall be licensed pursuant to the Knox-Keene Health Care Service Plan Act of 1975 (Chapter 2.2 (commencing with Section 1340) of Division 2 of the Health and Safety Code).

(Added by Stats. 2002, Ch. 6, Sec. 61.5. Effective January 1, 2003.)

4600.4.

  

(a) A workers’ compensation insurer, third-party administrator, or other entity that requires, or pursuant to regulation requires, a treating physician to obtain either utilization review or prior authorization in order to diagnose or treat injuries or diseases compensable under this article, shall ensure the availability of those services from 9 a.m. to 5:30 p.m. Pacific coast time of each normal business day.

(b) For purposes of this section “normal business day” means a business day as defined in Section 9 of the Civil Code.

(Added by Stats. 1999, Ch. 124, Sec. 1. Effective January 1, 2000.)

4600.5.

  

(a) Any health care service plan licensed pursuant to the Knox-Keene Health Care Service Plan Act, a disability insurer licensed by the Department of Insurance, or any entity, including, but not limited to, workers’ compensation insurers and third-party administrators authorized by the administrative director under subdivision (e), may make written application to the administrative director to become certified as a health care organization to provide health care to injured employees for injuries and diseases compensable under this article.

(b) Each application for certification shall be accompanied by a reasonable fee prescribed by the administrative director, sufficient to cover the actual cost of processing the application. A certificate is valid for the period that the director may prescribe unless sooner revoked or suspended.

(c) If the health care organization is a health care service plan licensed pursuant to the Knox-Keene Health Care Service Plan Act, and has provided the Managed Care Unit of the Division of Workers’ Compensation with the necessary documentation to comply with this subdivision, that organization shall be deemed to be a health care organization able to provide health care pursuant to Section 4600.3, without further application duplicating the documentation already filed with the Department of Managed Health Care. These plans shall be required to remain in good standing with the Department of Managed Health Care, and shall meet the following additional requirements:

(1) Proposes to provide all medical and health care services that may be required by this article.

(2) Provides a program involving cooperative efforts by the employees, the employer, and the health plan to promote workplace health and safety, consultative and other services, and early return to work for injured employees.

(3) Proposes a timely and accurate method to meet the requirements set forth by the administrative director for all carriers of workers’ compensation coverage to report necessary information regarding medical and health care service cost and utilization, rates of return to work, average time in medical treatment, and other measures as determined by the administrative director to enable the director to determine the effectiveness of the plan.

(4) Agrees to provide the administrative director with information, reports, and records prepared and submitted to the Department of Managed Health Care in compliance with the Knox-Keene Health Care Service Plan Act, relating to financial solvency, provider accessibility, peer review, utilization review, and quality assurance, upon request, if the administrative director determines the information is necessary to verify that the plan is providing medical treatment to injured employees in compliance with the requirements of this code.

Disclosure of peer review proceedings and records to the administrative director shall not alter the status of the proceedings or records as privileged and confidential communications pursuant to Sections 1370 and 1370.1 of the Health and Safety Code.

(5) Demonstrates the capability to provide occupational medicine and related disciplines.

(6) Complies with any other requirement the administrative director determines is necessary to provide medical services to injured employees consistent with the intent of this article, including, but not limited to, a written patient grievance policy.

(d) If the health care organization is a disability insurer licensed by the Department of Insurance, and is in compliance with subdivision (d) of Sections 10133 and 10133.5 of the Insurance Code, the administrative director shall certify the organization to provide health care pursuant to Section 4600.3 if the director finds that the plan is in good standing with the Department of Insurance and meets the following additional requirements:

(1) Proposes to provide all medical and health care services that may be required by this article.

(2) Provides a program involving cooperative efforts by the employees, the employer, and the health plan to promote workplace health and safety, consultative and other services, and early return to work for injured employees.

(3) Proposes a timely and accurate method to meet the requirements set forth by the administrative director for all carriers of workers’ compensation coverage to report necessary information regarding medical and health care service cost and utilization, rates of return to work, average time in medical treatment, and other measures as determined by the administrative director to enable the director to determine the effectiveness of the plan.

(4) Agrees to provide the administrative director with information, reports, and records prepared and submitted to the Department of Insurance in compliance with the Insurance Code relating to financial solvency, provider accessibility, peer review, utilization review, and quality assurance, upon request, if the administrative director determines the information is necessary to verify that the plan is providing medical treatment to injured employees consistent with the intent of this article.

Disclosure of peer review proceedings and records to the administrative director shall not alter the status of the proceedings or records as privileged and confidential communications pursuant to subdivision (d) of Section 10133 of the Insurance Code.

(5) Demonstrates the capability to provide occupational medicine and related disciplines.

(6) Complies with any other requirement the administrative director determines is necessary to provide medical services to injured employees consistent with the intent of this article, including, but not limited to, a written patient grievance policy.

(e) If the health care organization is a workers’ compensation insurer, third-party administrator, or any other entity that the administrative director determines meets the requirements of Section 4600.6, the administrative director shall certify the organization to provide health care pursuant to Section 4600.3 if the director finds that it meets the following additional requirements:

(1) Proposes to provide all medical and health care services that may be required by this article.

(2) Provides a program involving cooperative efforts by the employees, the employer, and the health plan to promote workplace health and safety, consultative and other services, and early return to work for injured employees.

(3) Proposes a timely and accurate method to meet the requirements set forth by the administrative director for all carriers of workers’ compensation coverage to report necessary information regarding medical and health care service cost and utilization, rates of return to work, average time in medical treatment, and other measures as determined by the administrative director to enable the director to determine the effectiveness of the plan.

(4) Agrees to provide the administrative director with information, reports, and records relating to provider accessibility, peer review, utilization review, quality assurance, advertising, disclosure, medical and financial audits, and grievance systems, upon request, if the administrative director determines the information is necessary to verify that the plan is providing medical treatment to injured employees consistent with the intent of this article.

Disclosure of peer review proceedings and records to the administrative director shall not alter the status of the proceedings or records as privileged and confidential communications pursuant to subdivision (d) of Section 10133 of the Insurance Code.

(5) Demonstrates the capability to provide occupational medicine and related disciplines.

(6) Complies with any other requirement the administrative director determines is necessary to provide medical services to injured employees consistent with the intent of this article, including, but not limited to, a written patient grievance policy.

(7) Complies with the following requirements:

(A) An organization certified by the administrative director under this subdivision may not provide or undertake to arrange for the provision of health care to employees, or to pay for or to reimburse any part of the cost of that health care in return for a prepaid or periodic charge paid by or on behalf of those employees.

(B) Every organization certified under this subdivision shall operate on a fee-for-service basis. As used in this section, fee for service refers to the situation where the amount of reimbursement paid by the employer to the organization or providers of health care is determined by the amount and type of health care rendered by the organization or provider of health care.

(C) An organization certified under this subdivision is prohibited from assuming risk.

(f) (1) A workers’ compensation health care provider organization authorized by the Department of Corporations on December 31, 1997, shall be eligible for certification as a health care organization under subdivision (e).

(2) An entity that had, on December 31, 1997, submitted an application with the Commissioner of Corporations under Part 3.2 (commencing with Section 5150) shall be considered an applicant for certification under subdivision (e) and shall be entitled to priority in consideration of its application. The Commissioner of Corporations shall provide complete files for all pending applications to the administrative director on or before January 31, 1998.

(g) The provisions of this section shall not affect the confidentiality or admission in evidence of a claimant’s medical treatment records.

(h) Charges for services arranged for or provided by health care service plans certified by this section and that are paid on a per-enrollee-periodic-charge basis shall not be subject to the schedules adopted by the administrative director pursuant to Section 5307.1.

(i) Nothing in this section shall be construed to expand or constrict any requirements imposed by law on a health care service plan or insurer when operating as other than a health care organization pursuant to this section.

(j) In consultation with interested parties, including the Department of Corporations and the Department of Insurance, the administrative director shall adopt rules necessary to carry out this section.

(k) The administrative director shall refuse to certify or may revoke or suspend the certification of any health care organization under this section if the director finds that:

(1) The plan for providing medical treatment fails to meet the requirements of this section.

(2) A health care service plan licensed by the Department of Managed Health Care, a workers’ compensation health care provider organization authorized by the Department of Corporations, or a carrier licensed by the Department of Insurance is not in good standing with its licensing agency.

(3) Services under the plan are not being provided in accordance with the terms of a certified plan.

(l) (1) When an injured employee requests chiropractic treatment for work-related injuries, the health care organization shall provide the injured worker with access to the services of a chiropractor pursuant to guidelines for chiropractic care established by paragraph (2). Within five working days of the employee’s request to see a chiropractor, the health care organization and any person or entity who directs the kind or manner of health care services for the plan shall refer an injured employee to an affiliated chiropractor for work-related injuries that are within the guidelines for chiropractic care established by paragraph (2). Chiropractic care rendered in accordance with guidelines for chiropractic care established pursuant to paragraph (2) shall be provided by duly licensed chiropractors affiliated with the plan.

(2) The health care organization shall establish guidelines for chiropractic care in consultation with affiliated chiropractors who are participants in the health care organization’s utilization review process for chiropractic care, which may include qualified medical evaluators knowledgeable in the treatment of chiropractic conditions. The guidelines for chiropractic care shall, at a minimum, explicitly require the referral of any injured employee who so requests to an affiliated chiropractor for the evaluation or treatment, or both, of neuromusculoskeletal conditions.

(3) Whenever a dispute concerning the appropriateness or necessity of chiropractic care for work-related injuries arises, the dispute shall be resolved by the health care organization’s utilization review process for chiropractic care in accordance with the health care organization’s guidelines for chiropractic care established by paragraph (2).

Chiropractic utilization review for work-related injuries shall be conducted in accordance with the health care organization’s approved quality assurance standards and utilization review process for chiropractic care. Chiropractors affiliated with the plan shall have access to the health care organization’s provider appeals process and, in the case of chiropractic care for work-related injuries, the review shall include review by a chiropractor affiliated with the health care organization, as determined by the health care organization.

(4) The health care organization shall inform employees of the procedures for processing and resolving grievances, including those related to chiropractic care, including the location and telephone number where grievances may be submitted.

(5) All guidelines for chiropractic care and utilization review shall be consistent with the standards of this code that require care to cure or relieve the effects of the industrial injury.

(m) Individually identifiable medical information on patients submitted to the division shall not be subject to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code).

(n) (1) When an injured employee requests acupuncture treatment for work-related injuries, the health care organization shall provide the injured worker with access to the services of an acupuncturist pursuant to guidelines for acupuncture care established by paragraph (2). Within five working days of the employee’s request to see an acupuncturist, the health care organization and any person or entity who directs the kind or manner of health care services for the plan shall refer an injured employee to an affiliated acupuncturist for work-related injuries that are within the guidelines for acupuncture care established by paragraph (2). Acupuncture care rendered in accordance with guidelines for acupuncture care established pursuant to paragraph (2) shall be provided by duly licensed acupuncturists affiliated with the plan.

(2) The health care organization shall establish guidelines for acupuncture care in consultation with affiliated acupuncturists who are participants in the health care organization’s utilization review process for acupuncture care, which may include qualified medical evaluators. The guidelines for acupuncture care shall, at a minimum, explicitly require the referral of any injured employee who so requests to an affiliated acupuncturist for the evaluation or treatment, or both, of neuromusculoskeletal conditions.

(3) Whenever a dispute concerning the appropriateness or necessity of acupuncture care for work-related injuries arises, the dispute shall be resolved by the health care organization’s utilization review process for acupuncture care in accordance with the health care organization’s guidelines for acupuncture care established by paragraph (2).

Acupuncture utilization review for work-related injuries shall be conducted in accordance with the health care organization’s approved quality assurance standards and utilization review process for acupuncture care. Acupuncturists affiliated with the plan shall have access to the health care organization’s provider appeals process and, in the case of acupuncture care for work-related injuries, the review shall include review by an acupuncturist affiliated with the health care organization, as determined by the health care organization.

(4) The health care organization shall inform employees of the procedures for processing and resolving grievances, including those related to acupuncture care, including the location and telephone number where grievances may be submitted.

(5) All guidelines for acupuncture care and utilization review shall be consistent with the standards of this code that require care to cure or relieve the effects of the industrial injury.

(Amended by Stats. 2002, Ch. 866, Sec. 10. Effective January 1, 2003.)

4600.6.

  

Any workers’ compensation insurer, third-party administrator, or other entity seeking certification as a health care organization under subdivision (e) of Section 4600.5 shall be subject to the following rules and procedures:

(a) Each application for authorization as an organization under subdivision (e) of Section 4600.5 shall be verified by an authorized representative of the applicant and shall be in a form prescribed by the administrative director. The application shall be accompanied by the prescribed fee and shall set forth or be accompanied by each and all of the following:

(1) The basic organizational documents of the applicant, such as the articles of incorporation, articles of association, partnership agreement, trust agreement, or other applicable documents and all amendments thereto.

(2) A copy of the bylaws, rules, and regulations, or similar documents regulating the conduct of the internal affairs of the applicant.

(3) A list of the names, addresses, and official positions of the persons who are to be responsible for the conduct of the affairs of the applicant, which shall include, among others, all members of the board of directors, board of trustees, executive committee, or other governing board or committee, the principal officers, each shareholder with over 5 percent interest in the case of a corporation, and all partners or members in the case of a partnership or association, and each person who has loaned funds to the applicant for the operation of its business.

(4) A copy of any contract made, or to be made, between the applicant and any provider of health care, or persons listed in paragraph (3), or any other person or organization agreeing to perform an administrative function or service for the plan. The administrative director by rule may identify contracts excluded from this requirement and make provision for the submission of form contracts. The payment rendered or to be rendered to the provider of health care services shall be deemed confidential information that shall not be divulged by the administrative director, except that the payment may be disclosed and become a public record in any legislative, administrative, or judicial proceeding or inquiry. The organization shall also submit the name and address of each provider employed by, or contracting with, the organization, together with his or her license number.

(5) A statement describing the organization, its method of providing for health services, and its physical facilities. If applicable, this statement shall include the health care delivery capabilities of the organization, including the number of full-time and part-time physicians under Section 3209.3, the numbers and types of licensed or state-certified health care support staff, the number of hospital beds contracted for, and the arrangements and the methods by which health care will be provided, as defined by the administrative director under Sections 4600.3 and 4600.5.

(6) A copy of the disclosure forms or materials that are to be issued to employees.

(7) A copy of the form of the contract that is to be issued to any employer, insurer of an employer, or a group of self-insured employers.

(8) Financial statements accompanied by a report, certificate, or opinion of an independent certified public accountant. However, the financial statements from public entities or political subdivisions of the state need not include a report, certificate, or opinion by an independent certified public accountant if the financial statement complies with any requirements that may be established by regulation of the administrative director.

(9) A description of the proposed method of marketing the organization and a copy of any contract made with any person to solicit on behalf of the organization or a copy of the form of agreement used and a list of the contracting parties.

(10) A statement describing the service area or areas to be served, including the service location for each provider rendering professional services on behalf of the organization and the location of any other organization facilities where required by the administrative director.

(11) A description of organization grievance procedures to be utilized as required by this part, and a copy of the form specified by paragraph (3) of subdivision (j).

(12) A description of the procedures and programs for internal review of the quality of health care pursuant to the requirements set forth in this part.

(13) Evidence of adequate insurance coverage or self-insurance to respond to claims for damages arising out of the furnishing of workers’ compensation health care.

(14) Evidence of adequate insurance coverage or self-insurance to protect against losses of facilities where required by the administrative director.

(15) Evidence of adequate workers’ compensation coverage to protect against claims arising out of work-related injuries that might be brought by the employees and staff of an organization against the organization.

(16) Evidence of fidelity bonds in such amount as the administrative director prescribes by regulation.

(17) Other information that the administrative director may reasonably require.

(b) (1) An organization, solicitor, solicitor firm, or representative may not use or permit the use of any advertising or solicitation that is untrue or misleading, or any form of disclosure that is deceptive. For purposes of this chapter:

(A) A written or printed statement or item of information shall be deemed untrue if it does not conform to fact in any respect that is or may be significant to an employer or employee, or potential employer or employee.

(B) A written or printed statement or item of information shall be deemed misleading whether or not it may be literally true, if, in the total context in which the statement is made or the item of information is communicated, the statement or item of information may be understood by a person not possessing special knowledge regarding health care coverage, as indicating any benefit or advantage, or the absence of any exclusion, limitation, or disadvantage of possible significance to an employer or employee, or potential employer or employee.

(C) A disclosure form shall be deemed to be deceptive if the disclosure form taken as a whole and with consideration given to typography and format, as well as language, shall be such as to cause a reasonable person, not possessing special knowledge of workers’ compensation health care, and the disclosure form therefor, to expect benefits, service charges, or other advantages that the disclosure form does not provide or that the organization issuing that disclosure form does not regularly make available to employees.

(2) An organization, solicitor, or representative may not use or permit the use of any verbal statement that is untrue, misleading, or deceptive or make any representations about health care offered by the organization or its cost that does not conform to fact. All verbal statements are to be held to the same standards as those for printed matter provided in paragraph (1).

(c) It is unlawful for any person, including an organization, subject to this part, to represent or imply in any manner that the person or organization has been sponsored, recommended, or approved, or that the person’s or organization’s abilities or qualifications have in any respect been passed upon, by the administrative director.

(d) (1) An organization may not publish or distribute, or allow to be published or distributed on its behalf, any advertisement unless (A) a true copy thereof has first been filed with the administrative director, at least 30 days prior to any such use, or any shorter period as the administrative director by rule or order may allow, and (B) the administrative director by notice has not found the advertisement, wholly or in part, to be untrue, misleading, deceptive, or otherwise not in compliance with this part or the rules thereunder, and specified the deficiencies, within the 30 days or any shorter time as the administrative director by rule or order may allow.

(2) If the administrative director finds that any advertisement of an organization has materially failed to comply with this part or the rules thereunder, the administrative director may, by order, require the organization to publish in the same or similar medium, an approved correction or retraction of any untrue, misleading, or deceptive statement contained in the advertising.

(3) The administrative director by rule or order may classify organizations and advertisements and exempt certain classes, wholly or in part, either unconditionally or upon specified terms and conditions or for specified periods, from the application of subdivision (a).

(e) (1) The administrative director shall require the use by each organization of disclosure forms or materials containing any information regarding the health care and terms of the workers’ compensation health care contract that the administrative director may require, so as to afford the public, employers, and employees with a full and fair disclosure of the provisions of the contract in readily understood language and in a clearly organized manner. The administrative director may require that the materials be presented in a reasonably uniform manner so as to facilitate comparisons between contracts of the same or other types of organizations. The disclosure form shall describe the health care that is required by the administrative director under Sections 4600.3 and 4600.5, and shall provide that all information be in concise and specific terms, relative to the contract, together with any additional information as may be required by the administrative director, in connection with the organization or contract.

(2) All organizations, solicitors, and representatives of a workers’ compensation health care provider organization shall, when presenting any contract for examination or sale to a prospective employee, provide the employee with a properly completed disclosure form, as prescribed by the administrative director pursuant to this section for each contract so examined or sold.

(3) In addition to the other disclosures required by this section, every organization and any agent or employee of the organization shall, when representing an organization for examination or sale to any individual purchaser or the representative of a group consisting of 25 or fewer individuals, disclose in writing the ratio of premium cost to health care paid for contracts with individuals and with groups of the same or similar size for the organization’s preceding fiscal year. An organization may report that information by geographic area, provided the organization identifies the geographic area and reports information applicable to that geographic area.

(4) Where the administrative director finds it necessary in the interest of full and fair disclosure, all advertising and other consumer information disseminated by an organization for the purpose of influencing persons to become members of an organization shall contain any supplemental disclosure information that the administrative director may require.

(f) When the administrative director finds it necessary in the interest of full and fair disclosure, all advertising and other consumer information disseminated by an organization for the purpose of influencing persons to become members of an organization shall contain any supplemental disclosure information that the administrative director may require.

(g) (1) An organization may not refuse to enter into any contract, or may not cancel or decline to renew or reinstate any contract, because of the age or any characteristic listed or defined in subdivision (b) or (e) of Section 51 of the Civil Code of any contracting party, prospective contracting party, or person reasonably expected to benefit from that contract as an employee or otherwise.

(2) The terms of any contract shall not be modified, and the benefits or coverage of any contract shall not be subject to any limitations, exceptions, exclusions, reductions, copayments, coinsurance, deductibles, reservations, or premium, price, or charge differentials, or other modifications because of the age or any characteristic listed or defined in subdivision (b) or (e) of Section 51 of the Civil Code of any contracting party, potential contracting party, or person reasonably expected to benefit from that contract as an employee or otherwise; except that premium, price, or charge differentials because of the sex or age of any individual when based on objective, valid, and up-to-date statistical and actuarial data are not prohibited. Nothing in this section shall be construed to permit an organization to charge different rates to individual employees within the same group solely on the basis of the employee’s sex.

(3) It shall be deemed a violation of subdivision (a) for any organization to utilize marital status, living arrangements, occupation, gender, beneficiary designation, ZIP Codes or other territorial classification, or any combination thereof for the purpose of establishing sexual orientation. Nothing in this section shall be construed to alter in any manner the existing law prohibiting organizations from conducting tests for the presence of human immunodeficiency virus or evidence thereof.

(4) This section shall not be construed to limit the authority of the administrative director to adopt or enforce regulations prohibiting discrimination because of sex, marital status, or sexual orientation.

(h) (1) An organization may not use in its name any of the words “insurance,” “casualty,” “health care service plan,” “health plan,” “surety,” “mutual,” or any other words descriptive of the health plan, insurance, casualty, or surety business or use any name similar to the name or description of any health care service plan, insurance, or surety corporation doing business in this state unless that organization controls or is controlled by an entity licensed as a health care service plan or insurer pursuant to the Health and Safety Code or the Insurance Code and the organization employs a name related to that of the controlled or controlling entity.

(2) Section 2415 of the Business and Professions Code, pertaining to fictitious names, does not apply to organizations certified under this section.

(3) An organization or solicitor firm may not adopt a name style that is deceptive, or one that could cause the public to believe the organization is affiliated with or recommended by any governmental or private entity unless this affiliation or endorsement exists.

(i) Each organization shall meet the following requirements:

(1) All facilities located in this state, including, but not limited to, clinics, hospitals, and skilled nursing facilities, to be utilized by the organization shall be licensed by the State Department of Health Services, if that licensure is required by law. Facilities not located in this state shall conform to all licensing and other requirements of the jurisdiction in which they are located.

(2) All personnel employed by or under contract to the organization shall be licensed or certified by their respective board or agency, where that licensure or certification is required by law.

(3) All equipment required to be licensed or registered by law shall be so licensed or registered and the operating personnel for that equipment shall be licensed or certified as required by law.

(4) The organization shall furnish services in a manner providing continuity of care and ready referral of patients to other providers at any time as may be appropriate and consistent with good professional practice.

(5) All health care shall be readily available at reasonable times to all employees. To the extent feasible, the organization shall make all health care readily accessible to all employees.

(6) The organization shall employ and utilize allied health manpower for the furnishing of health care to the extent permitted by law and consistent with good health care practice.

(7) The organization shall have the organizational and administrative capacity to provide services to employees. The organization shall be able to demonstrate to the department that health care decisions are rendered by qualified providers, unhindered by fiscal and administrative management.

(8) All contracts with employers, insurers of employers, and self-insured employers and all contracts with providers, and other persons furnishing services, equipment, or facilities to or in connection with the workers’ compensation health care organization, shall be fair, reasonable, and consistent with the objectives of this part.

(9) Each organization shall provide to employees all workers’ compensation health care required by this code. The administrative director shall not determine the scope of workers’ compensation health care to be offered by an organization.

(j) (1) Every organization shall establish and maintain a grievance system approved by the administrative director under which employees may submit their grievances to the organization. Each system shall provide reasonable procedures in accordance with regulations adopted by the administrative director that shall ensure adequate consideration of employee grievances and rectification when appropriate.

(2) Every organization shall inform employees upon enrollment and annually thereafter of the procedures for processing and resolving grievances. The information shall include the location and telephone number where grievances may be submitted.

(3) Every organization shall provide forms for complaints to be given to employees who wish to register written complaints. The forms used by organizations shall be approved by the administrative director in advance as to format.

(4) The organization shall keep in its files all copies of complaints, and the responses thereto, for a period of five years.

(k) Every organization shall establish procedures in accordance with regulations of the administrative director for continuously reviewing the quality of care, performance of medical personnel, utilization of services and facilities, and costs. Notwithstanding any other provision of law, there shall be no monetary liability on the part of, and no cause of action for damages shall arise against, any person who participates in quality of care or utilization reviews by peer review committees that are composed chiefly of physicians, as defined by Section 3209.3, for any act performed during the reviews if the person acts without malice, has made a reasonable effort to obtain the facts of the matter, and believes that the action taken is warranted by the facts, and neither the proceedings nor the records of the reviews shall be subject to discovery, nor shall any person in attendance at the reviews be required to testify as to what transpired thereat. Disclosure of the proceedings or records to the governing body of an organization or to any person or entity designated by the organization to review activities of the committees shall not alter the status of the records or of the proceedings as privileged communications.

The above prohibition relating to discovery or testimony does not apply to the statements made by any person in attendance at a review who is a party to an action or proceeding the subject matter of which was reviewed, or to any person requesting hospital staff privileges, or in any action against an insurance carrier alleging bad faith by the carrier in refusing to accept a settlement offer within the policy limits, or to the administrative director in conducting surveys pursuant to subdivision (o).

This section shall not be construed to confer immunity from liability on any workers’ compensation health care organization. In any case in which, but for the enactment of the preceding provisions of this section, a cause of action would arise against an organization, the cause of action shall exist notwithstanding the provisions of this section.

(l) Nothing in this chapter shall be construed to prevent an organization from utilizing subcommittees to participate in peer review activities, nor to prevent an organization from delegating the responsibilities required by subdivision (i) as it determines to be appropriate, to subcommittees including subcommittees composed of a majority of nonphysician health care providers licensed pursuant to the Business and Professions Code, as long as the organization controls the scope of authority delegated and may revoke all or part of this authority at any time. Persons who participate in the subcommittees shall be entitled to the same immunity from monetary liability and actions for civil damages as persons who participate in organization or provider peer review committees pursuant to subdivision (i).

(m) Every organization shall have and shall demonstrate to the administrative director that it has all of the following:

(1) Adequate provision for continuity of care.

(2) A procedure for prompt payment and denial of provider claims.

(n) Every contract between an organization and an employer or insurer of an employer, and every contract between any organization and a provider of health care, shall be in writing.

(o) (1) The administrative director shall conduct periodically an onsite medical survey of the health care delivery system of each organization. The survey shall include a review of the procedures for obtaining health care, the procedures for regulating utilization, peer review mechanisms, internal procedures for assuring quality of care, and the overall performance of the organization in providing health care and meeting the health needs of employees.

(2) The survey shall be conducted by a panel of qualified health professionals experienced in evaluating the delivery of workers’ compensation health care. The administrative director shall be authorized to contract with professional organizations or outside personnel to conduct medical surveys. These organizations or personnel shall have demonstrated the ability to objectively evaluate the delivery of this health care.

(3) Surveys performed pursuant to this section shall be conducted as often as deemed necessary by the administrative director to assure the protection of employees, but not less frequently than once every three years. Nothing in this section shall be construed to require the survey team to visit each clinic, hospital, office, or facility of the organization.

(4) Nothing in this section shall be construed to require the medical survey team to review peer review proceedings and records conducted and compiled under this section or in medical records. However, the administrative director shall be authorized to require onsite review of these peer review proceedings and records or medical records where necessary to determine that quality health care is being delivered to employees. Where medical record review is authorized, the survey team shall ensure that the confidentiality of the physician-patient relationship is safeguarded in accordance with existing law and neither the survey team nor the administrative director or the administrative director’s staff may be compelled to disclose this information except in accordance with the physician-patient relationship. The administrative director shall ensure that the confidentiality of the peer review proceedings and records is maintained. The disclosure of the peer review proceedings and records to the administrative director or the medical survey team shall not alter the status of the proceedings or records as privileged and confidential communications.

(5) The procedures and standards utilized by the survey team shall be made available to the organizations prior to the conducting of medical surveys.

(6) During the survey, the members of the survey team shall offer such advice and assistance to the organization as deemed appropriate.

(7) The administrative director shall notify the organization of deficiencies found by the survey team. The administrative director shall give the organization a reasonable time to correct the deficiencies, and failure on the part of the organization to comply to the administrative director’s satisfaction shall constitute cause for disciplinary action against the organization.

(8) Reports of all surveys, deficiencies, and correction plans shall be open to public inspection, except that no surveys, deficiencies or correction plans shall be made public unless the organization has had an opportunity to review the survey and file a statement of response within 30 days, to be attached to the report.

(p) (1) All records, books, and papers of an organization, management company, solicitor, solicitor firm, and any provider or subcontractor providing medical or other services to an organization, management company, solicitor, or solicitor firm shall be open to inspection during normal business hours by the administrative director.

(2) To the extent feasible, all the records, books, and papers described in paragraph (1) shall be located in this state. In examining those records outside this state, the administrative director shall consider the cost to the organization, consistent with the effectiveness of the administrative director’s examination, and may upon reasonable notice require that these records, books, and papers, or a specified portion thereof, be made available for examination in this state, or that a true and accurate copy of these records, books, and papers, or a specified portion thereof, be furnished to the administrative director.

(q) (1) The administrative director shall conduct an examination of the administrative affairs of any organization, and each person with whom the organization has made arrangements for administrative, or management services, as often as deemed necessary to protect the interest of employees, but not less frequently than once every five years.

(2) The expense of conducting any additional or nonroutine examinations pursuant to this section, and the expense of conducting any additional or nonroutine medical surveys pursuant to subdivision (o) shall be charged against the organization being examined or surveyed. The amount shall include the actual salaries or compensation paid to the persons making the examination or survey, the expenses incurred in the course thereof, and overhead costs in connection therewith as fixed by the administrative director. In determining the cost of examinations or surveys, the administrative director may use the estimated average hourly cost for all persons performing examinations or surveys of workers’ compensation health care organizations for the fiscal year. The amount charged shall be remitted by the organization to the administrative director.

(3) Reports of all examinations shall be open to public inspection, except that no examination shall be made public, unless the organization has had an opportunity to review the examination report and file a statement or response within 30 days, to be attached to the report.

(Amended by Stats. 2008, Ch. 682, Sec. 9. Effective January 1, 2009.)

4600.7.

  

(a) The Workers’ Compensation Managed Care Fund is hereby created in the State Treasury for the administration of Sections 4600.3 and 4600.5 by the Division of Workers’ Compensation. The administrative director shall establish a schedule of fees and revenues to be charged to certified health care organizations and applicants for certification to fully fund the administration of these provisions and to repay amounts received as a loan from the General Fund. All fees and revenues shall be deposited in the Workers’ Compensation Managed Care Fund and shall be used when appropriated by the Legislature solely for the purpose of carrying out the responsibilities of the Division of Workers’ Compensation under Section 4600.3 or 4600.5.

(b) On and after July 1, 1998, no funds received as a loan from the General Fund shall be used to support the administration of Sections 4600.3 and 4600.5. The loan amount shall be repaid to the General Fund by assessing a surcharge on the enrollment fee for each of the next five fiscal years. In the event the surcharge does not produce sufficient revenue over this period, the surcharge shall be adjusted to fully repay the loan over the following three fiscal years, with the final assessment calculated by dividing the balance of the loan by the enrollees at the end of the final fiscal year.

(Amended by Stats. 1998, Ch. 282, Sec. 1. Effective January 1, 1999.)

4601.

  

(a) If the employee so requests, the employer shall tender the employee one change of physician. The employee at any time may request that the employer tender this one-time change of physician. Upon request of the employee for a change of physician, the maximum amount of time permitted by law for the employer or insurance carrier to provide the employee an alternative physician or, if requested by the employee, a chiropractor, or an acupuncturist shall be five working days from the date of the request. Notwithstanding the 30-day time period specified in Section 4600, a request for a change of physician pursuant to this section may be made at any time. The employee is entitled, in any serious case, upon request, to the services of a consulting physician, chiropractor, or acupuncturist of his or her choice at the expense of the employer. The treatment shall be at the expense of the employer.

(b) If an employee requesting a change of physician pursuant to subdivision (a) has notified his or her employer in writing prior to the date of injury that he or she has a personal chiropractor, the alternative physician tendered by the employer to the employee, if the employee so requests, shall be the employee’s personal chiropractor. For the purpose of this article, “personal chiropractor” means the employee’s regular chiropractor licensed pursuant to Chapter 2 (commencing with Section 1000) of Division 2 of the Business and Professions Code, who has previously directed treatment of the employee, and who retains the employee’s chiropractic treatment records, including his or her chiropractic history.

(c) If an employee requesting a change of physician pursuant to subdivision (a) has notified his or her employer in writing prior to the date of injury that he or she has a personal acupuncturist, the alternative physician tendered by the employer to the employee, if the employee so requests, shall be the employee’s personal acupuncturist. For the purpose of this article, “personal acupuncturist” means the employee’s regular acupuncturist licensed pursuant to Chapter 12 (commencing with Section 4935) of Division 2 of the Business and Professions Code, who has previously directed treatment of the employee, and who retains the employee’s acupuncture treatment records, including his or her acupuncture history.

(Amended by Stats. 1998, Ch. 440, Sec. 5. Effective January 1, 1999.)

4602.

  

If the employee so requests, the employer shall procure certification by either the administrative director or the appeals board as the case may be of the competency, for the particular case, of the consulting or additional physicians.

(Amended by Stats. 1965, Ch. 1513.)

4603.

  

If the employer desires a change of physicians or chiropractor, he may petition the administrative director who, upon a showing of good cause by the employer, may order the employer to provide a panel of five physicians, or if requested by the employee, four physicians and one chiropractor competent to treat the particular case, from which the employee must select one.

(Repealed and added by Stats. 1975, Ch. 1259.)

4603.2.

  

(a) (1) Upon selecting a physician pursuant to Section 4600, the employee or physician shall notify the employer of the name and address, including the name of the medical group, if applicable, of the physician. The physician shall submit a report to the employer within five working days from the date of the initial examination, as required by Section 6409, and shall submit periodic reports at intervals that may be prescribed by rules and regulations adopted by the administrative director.

(2) If the employer objects to the employee’s selection of the physician on the grounds that the physician is not within the medical provider network used by the employer, and there is a final determination that the employee was entitled to select the physician pursuant to Section 4600, the employee shall be entitled to continue treatment with that physician at the employer’s expense in accordance with this division, notwithstanding Section 4616.2. The employer shall be required to pay from the date of the initial examination if the physician’s report was submitted within five working days of the initial examination. If the physician’s report was submitted more than five working days after the initial examination, the employer and the employee shall not be required to pay for any services prior to the date the physician’s report was submitted.

(3) If the employer objects to the employee’s selection of the physician on the grounds that the physician is not within the medical provider network used by the employer, and there is a final determination that the employee was not entitled to select a physician outside of the medical provider network, the employer shall have no liability for treatment provided by or at the direction of that physician or for any consequences of the treatment obtained outside the network.

(b) (1) Any provider of services provided pursuant to Section 4600, including, but not limited to, physicians, hospitals, pharmacies, interpreters, copy services, transportation services, and home health care services, shall submit its request for payment with an itemization of services provided and the charge for each service, a copy of all reports showing the services performed, the prescription or referral from the primary treating physician if the services were performed by a person other than the primary treating physician, and any evidence of authorization for the services that may have been received. Nothing in this section shall prohibit an employer, insurer, or third-party claims administrator from establishing, through written agreement, an alternative manual or electronic request for payment with providers for services provided pursuant to Section 4600.

(A) Notwithstanding the requirements of this paragraph, a copy of the prescription shall not be required with a request for payment for pharmacy services, unless the provider of services has entered into a written agreement, as provided in this paragraph, that requires a copy of a prescription for a pharmacy service.

(B) Notwithstanding timely billing and payment rules established by the Division of Workers’ Compensation, any entity submitting a pharmacy bill for payment, on or after January 1, 2013, and denied payment for not including a copy of the prescription from the treating physician, may resubmit those bills for payment until March 31, 2014.

(C) Nothing in this section shall preclude an employer, insurer, pharmacy benefits manager, or third-party claims administrator from requesting a copy of the prescription during a review of any records of prescription drugs that were dispensed by a pharmacy.

(2) Except as provided in subdivision (d) of Section 4603.4, or under contracts authorized under Section 5307.11, payment for medical treatment provided or prescribed by the treating physician selected by the employee or designated by the employer shall be made at reasonable maximum amounts in the official medical fee schedule, pursuant to Section 5307.1, in effect on the date of service. Payments shall be made by the employer with an explanation of review pursuant to Section 4603.3 within 45 days after receipt of each separate, itemization of medical services provided, together with any required reports and any written authorization for services that may have been received by the physician. If the itemization or a portion thereof is contested, denied, or considered incomplete, the physician shall be notified, in the explanation of review, that the itemization is contested, denied, or considered incomplete, within 30 days after receipt of the itemization by the employer. An explanation of review that states an itemization is incomplete shall also state all additional information required to make a decision. Any properly documented list of services provided and not paid at the rates then in effect under Section 5307.1 within the 45-day period shall be paid at the rates then in effect and increased by 15 percent, together with interest at the same rate as judgments in civil actions retroactive to the date of receipt of the itemization, unless the employer does both of the following:

(A) Pays the provider at the rates in effect within the 45-day period.

(B) Advises, in an explanation of review pursuant to Section 4603.3, the physician, or another provider of the items being contested, the reasons for contesting these items, and the remedies available to the physician or the other provider if he or she disagrees. In the case of an itemization that includes services provided by a hospital, outpatient surgery center, or independent diagnostic facility, advice that a request has been made for an audit of the itemization shall satisfy the requirements of this paragraph.

An employer’s liability to a physician or another provider under this section for delayed payments shall not affect its liability to an employee under Section 5814 or any other provision of this division.

(3) Notwithstanding paragraph (1), if the employer is a governmental entity, payment for medical treatment provided or prescribed by the treating physician selected by the employee or designated by the employer shall be made within 60 days after receipt of each separate itemization, together with any required reports and any written authorization for services that may have been received by the physician.

(4) Duplicate submissions of medical services itemizations, for which an explanation of review was previously provided, shall require no further or additional notification or objection by the employer to the medical provider and shall not subject the employer to any additional penalties or interest pursuant to this section for failing to respond to the duplicate submission. This paragraph shall apply only to duplicate submissions and does not apply to any other penalties or interest that may be applicable to the original submission.

(c) Any interest or increase in compensation paid by an insurer pursuant to this section shall be treated in the same manner as an increase in compensation under subdivision (d) of Section 4650 for the purposes of any classification of risks and premium rates, and any system of merit rating approved or issued pursuant to Article 2 (commencing with Section 11730) of Chapter 3 of Part 3 of Division 2 of the Insurance Code.

(d) (1) Whenever an employer or insurer employs an individual or contracts with an entity to conduct a review of an itemization submitted by a physician or medical provider, the employer or insurer shall make available to that individual or entity all documentation submitted together with that itemization by the physician or medical provider. When an individual or entity conducting an itemization review determines that additional information or documentation is necessary to review the itemization, the individual or entity shall contact the claims administrator or insurer to obtain the necessary information or documentation that was submitted by the physician or medical provider pursuant to subdivision (b).

(2) An individual or entity reviewing an itemization of service submitted by a physician or medical provider shall not alter the procedure codes listed or recommend reduction of the amount of the payment unless the documentation submitted by the physician or medical provider with the itemization of service has been reviewed by that individual or entity. If the reviewer does not recommend payment for services as itemized by the physician or medical provider, the explanation of review shall provide the physician or medical provider with a specific explanation as to why the reviewer altered the procedure code or changed other parts of the itemization and the specific deficiency in the itemization or documentation that caused the reviewer to conclude that the altered procedure code or amount recommended for payment more accurately represents the service performed.

(e) (1) If the provider disputes the amount paid, the provider may request a second review within 90 days of service of the explanation of review or an order of the appeals board resolving the threshold issue as stated in the explanation of review pursuant to paragraph (5) of subdivision (a) of Section 4603.3. The request for a second review shall be submitted to the employer on a form prescribed by the administrative director and shall include all of the following:

(A) The date of the explanation of review and the claim number or other unique identifying number provided on the explanation of review.

(B) The item and amount in dispute.

(C) The additional payment requested and the reason therefor.

(D) The additional information provided in response to a request in the first explanation of review or any other additional information provided in support of the additional payment requested.

(2) If the only dispute is the amount of payment and the provider does not request a second review within 90 days, the bill shall be deemed satisfied and neither the employer nor the employee shall be liable for any further payment.

(3) Within 14 days of a request for second review, the employer shall respond with a final written determination on each of the items or amounts in dispute. Payment of any balance not in dispute shall be made within 21 days of receipt of the request for second review. This time limit may be extended by mutual written agreement.

(4) If the provider contests the amount paid, after receipt of the second review, the provider shall request an independent bill review as provided for in Section 4603.6.

(f) Except as provided in paragraph (4) of subdivision (e), the appeals board shall have jurisdiction over disputes arising out of this subdivision pursuant to Section 5304.

(Amended by Stats. 2013, Ch. 129, Sec. 1. Effective August 19, 2013.)

4603.3.

  

(a) Upon payment, adjustment, or denial of a complete or incomplete itemization of medical services, an employer shall provide an explanation of review in the manner prescribed by the administrative director that shall include all of the following:

(1) A statement of the items or procedures billed and the amounts requested by the provider to be paid.

(2) The amount paid.

(3) The basis for any adjustment, change, or denial of the item or procedure billed.

(4) The additional information required to make a decision for an incomplete itemization.

(5) If a denial of payment is for some reason other than a fee dispute, the reason for the denial.

(6) Information on whom to contact on behalf of the employer if a dispute arises over the payment of the billing. The explanation of review shall inform the medical provider of the time limit to raise any objection regarding the items or procedures paid or disputed and how to obtain an independent review of the medical bill pursuant to Section 4603.6.

(b) The administrative director may adopt regulations requiring the use of electronic explanations of review.

(Added by Stats. 2012, Ch. 363, Sec. 37. Effective January 1, 2013.)

4603.4.

  

(a) The administrative director shall adopt rules and regulations to do all of the following:

(1) Ensure that all health care providers and facilities submit medical bills for payment on standardized forms.

(2) Require acceptance by employers of electronic claims for payment of medical services.

(3) Ensure confidentiality of medical information submitted on electronic claims for payment of medical services.

(b) To the extent feasible, standards adopted pursuant to subdivision (a) shall be consistent with existing standards under the federal Health Insurance Portability and Accountability Act of 1996.

(c) The rules and regulations requiring employers to accept electronic claims for payment of medical services shall be adopted on or before January 1, 2005, and shall require all employers to accept electronic claims for payment of medical services on or before July 1, 2006.

(d) Payment for medical treatment provided or prescribed by the treating physician selected by the employee or designated by the employer shall be made with an explanation of review by the employer within 15 working days after electronic receipt of an itemized electronic billing for services at or below the maximum fees provided in the official medical fee schedule adopted pursuant to Section 5307.1. If the billing is contested, denied, or incomplete, payment shall be made with an explanation of review of any uncontested amounts within 15 working days after electronic receipt of the billing, and payment of the balance shall be made in accordance with Section 4603.2.

(Amended by Stats. 2012, Ch. 363, Sec. 38. Effective January 1, 2013.)

4603.5.

  

The administrative director shall adopt rules pertaining to the format and content of notices required by this article; define reasonable geographic areas for the purposes of Section 4600; specify time limits for all such notices, and responses thereto; and adopt any other rules necessary to make effective the requirements of this article.

Employers shall notify all employees of their rights under this section.

(Added by Stats. 1975, Ch. 1259.)

4603.6.

  

(a) If the only dispute is the amount of payment and the provider has received a second review that did not resolve the dispute, the provider may request an independent bill review within 30 calendar days of service of the second review pursuant to Section 4603.2 or 4622. If the provider fails to request an independent bill review within 30 days, the bill shall be deemed satisfied, and neither the employer nor the employee shall be liable for any further payment. If the employer has contested liability for any issue other than the reasonable amount payable for services, that issue shall be resolved prior to filing a request for independent bill review, and the time limit for requesting independent bill review shall not begin to run until the resolution of that issue becomes final, except as provided for in Section 4622.

(b) A request for independent review shall be made on a form prescribed by the administrative director, and shall include copies of the original billing itemization, any supporting documents that were furnished with the original billing, the explanation of review, the request for second review together with any supporting documentation submitted with that request, and the final explanation of the second review. The administrative director may require that requests for independent bill review be submitted electronically. A copy of the request, together with all required documents, shall be served on the employer. Only the request form and the proof of payment of the fee required by subdivision (c) shall be filed with the administrative director. Upon notice of assignment of the independent bill reviewer, the requesting party shall submit the documents listed in this subdivision to the independent bill reviewer within 10 days.

(c) The provider shall pay to the administrative director a fee determined by the administrative director to cover no more than the reasonable estimated cost of independent bill review and administration of the independent bill review program. The administrative director may prescribe different fees depending on the number of items in the bill or other criteria determined by regulation adopted by the administrative director. If any additional payment is found owing from the employer to the medical provider, the employer shall reimburse the provider for the fee in addition to the amount found owing.

(d) Upon receipt of a request for independent bill review and the required fee, the administrative director or the administrative director’s designee shall assign the request to an independent bill reviewer within 30 days and notify the medical provider and employer of the independent reviewer assigned.

(e) The independent bill reviewer shall review the materials submitted by the parties and make a written determination of any additional amounts to be paid to the medical provider and state the reasons for the determination. If the independent bill reviewer deems necessary, the independent bill reviewer may request additional documents from the medical provider or employer. The employer shall have no obligation to serve medical reports on the provider unless the reports are requested by the independent bill reviewer. If additional documents are requested, the parties shall respond with the documents requested within 30 days and shall provide the other party with copies of any documents submitted to the independent reviewer, and the independent reviewer shall make a written determination of any additional amounts to be paid to the medical provider and state the reasons for the determination within 60 days of the receipt of the administrative director’s assignment. The written determination of the independent bill reviewer shall be sent to the administrative director and provided to both the medical provider and the employer.

(f) The determination of the independent bill reviewer shall be deemed a determination and order of the administrative director. The determination is final and binding on all parties unless an aggrieved party files with the appeals board a verified appeal from the medical bill review determination of the administrative director within 20 days of the service of the determination. The medical bill review determination of the administrative director shall be presumed to be correct and shall be set aside only upon clear and convincing evidence of one or more of the following grounds for appeal:

(1) The administrative director acted without or in excess of his or her powers.

(2) The determination of the administrative director was procured by fraud.

(3) The independent bill reviewer was subject to a material conflict of interest that is in violation of Section 139.5.

(4) The determination was the result of bias on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, or disability.

(5) The determination was the result of a plainly erroneous express or implied finding of fact, provided that the mistake of fact is a matter of ordinary knowledge based on the information submitted for review and not a matter that is subject to expert opinion.

(g) If the determination of the administrative director is reversed, the dispute shall be remanded to the administrative director to submit the dispute to independent bill review by a different independent review organization. In the event that a different independent bill review organization is not available after remand, the administrative director shall submit the dispute to the original bill review organization for review by a different reviewer within the organization. In no event shall the appeals board or any higher court make a determination of ultimate fact contrary to the determination of the bill review organization.

(h) Once the independent bill reviewer has made a determination regarding additional amounts to be paid to the medical provider, the employer shall pay the additional amounts per the timely payment requirements set forth in Sections 4603.2 and 4603.4.

(Added by Stats. 2012, Ch. 363, Sec. 39. Effective January 1, 2013.)

4604.

  

Controversies between employer and employee arising under this chapter shall be determined by the appeals board, upon the request of either party, except as otherwise provided by Section 4610.5.

(Amended by Stats. 2012, Ch. 363, Sec. 40. Effective January 1, 2013.)

4604.5.

  

(a) The recommended guidelines set forth in the medical treatment utilization schedule adopted by the administrative director pursuant to Section 5307.27 shall be presumptively correct on the issue of extent and scope of medical treatment. The presumption is rebuttable and may be controverted by a preponderance of the scientific medical evidence establishing that a variance from the guidelines reasonably is required to cure or relieve the injured worker from the effects of his or her injury. The presumption created is one affecting the burden of proof.

(b) The recommended guidelines set forth in the schedule adopted pursuant to subdivision (a) shall reflect practices that are evidence and scientifically based, nationally recognized, and peer reviewed. The guidelines shall be designed to assist providers by offering an analytical framework for the evaluation and treatment of injured workers, and shall constitute care in accordance with Section 4600 for all injured workers diagnosed with industrial conditions.

(c) (1) Notwithstanding the medical treatment utilization schedule, for injuries occurring on and after January 1, 2004, an employee shall be entitled to no more than 24 chiropractic, 24 occupational therapy, and 24 physical therapy visits per industrial injury.

(2) (A) Paragraph (1) shall not apply when an employer authorizes, in writing, additional visits to a health care practitioner for physical medicine services. Payment or authorization for treatment beyond the limits set forth in paragraph (1) shall not be deemed a waiver of the limits set forth by paragraph (1) with respect to future requests for authorization.

(B) The Legislature finds and declares that the amendments made to subparagraph (A) by the act adding this subparagraph are declaratory of existing law.

(3) Paragraph (1) shall not apply to visits for postsurgical physical medicine and postsurgical rehabilitation services provided in compliance with a postsurgical treatment utilization schedule established by the administrative director pursuant to Section 5307.27.

(d) For all injuries not covered by the official utilization schedule adopted pursuant to Section 5307.27, authorized treatment shall be in accordance with other evidence-based medical treatment guidelines that are recognized generally by the national medical community and scientifically based.

(Amended by Stats. 2012, Ch. 363, Sec. 41. Effective January 1, 2013.)

4605.

  

Nothing contained in this chapter shall limit the right of the employee to provide, at his or her own expense, a consulting physician or any attending physicians whom he or she desires. Any report prepared by consulting or attending physicians pursuant to this section shall not be the sole basis of an award of compensation. A qualified medical evaluator or authorized treating physician shall address any report procured pursuant to this section and shall indicate whether he or she agrees or disagrees with the findings or opinions stated in the report, and shall identify the bases for this opinion.

(Amended by Stats. 2012, Ch. 363, Sec. 42. Effective January 1, 2013.)

4606.

  

Any county, city and county, city, school district, or other public corporation within the state which was a self-insured employer under the “Workmen’s Compensation, Insurance and Safety Act,” enacted by Chapter 176 of the Statutes of 1913, may provide such medical, and hospital treatment, including nursing, medicines, medical and surgical supplies, crutches, and apparatus, including artificial members, which is reasonably required to cure or relieve from the effects of an injury to a former employee who was covered under such act, without regard to the 90-day limitation of subdivision (a) of Section 15 of such act for medical treatment. The provisions of this section shall not be operative in any such county, city and county, city, school district, or other public corporation unless adopted by a resolution of the governing body of such public entity.

(Added by Stats. 1972, Ch. 451.)

4607.

  

Where a party to a proceeding institutes proceedings to terminate an award made by the appeals board to an applicant for continuing medical treatment and is unsuccessful in such proceedings, the appeals board may determine the amount of attorney’s fees reasonably incurred by the applicant in resisting the proceeding to terminate the medical treatment, and may assess such reasonable attorney’s fees as a cost upon the party instituting the proceedings to terminate the award of the appeals board.

(Added by Stats. 1973, Ch. 663.)

4608.

  

No workers’ compensation insurer, self-insured employer, or agent of an insurer or self-insured employer, shall refuse to pay pharmacy benefits solely because the claim form utilized is reproduced by the person providing the pharmacy benefits, provided the reproduced form is an exact copy of that used by the insurer, self-insured employer, or agent.

(Added by Stats. 1984, Ch. 137, Sec. 1.)

4609.

  

(a) In order to prevent the improper selling, leasing, or transferring of a health care provider’s contract, it is the intent of the Legislature that every arrangement that results in any payor paying a health care provider a reduced rate for health care services based on the health care provider’s participation in a network or panel shall be disclosed by the contracting agent to the provider in advance and shall actively encourage employees to use the network, unless the health care provider agrees to provide discounts without that active encouragement.

(b) Beginning July 1, 2000, every contracting agent that sells, leases, assigns, transfers, or conveys its list of contracted health care providers and their contracted reimbursement rates to a payor, as defined in subparagraph (A) of paragraph (3) of subdivision (d), or another contracting agent shall, upon entering or renewing a provider contract, do all of the following:

(1) Disclose whether the list of contracted providers may be sold, leased, transferred, or conveyed to other payors or other contracting agents, and specify whether those payors or contracting agents include workers’ compensation insurers or automobile insurers.

(2) Disclose what specific practices, if any, payors utilize to actively encourage employees to use the list of contracted providers when obtaining medical care that entitles a payor to claim a contracted rate. For purposes of this paragraph, a payor is deemed to have actively encouraged employees to use the list of contracted providers if the employer provides information directly to employees during the period the employer has medical control advising them of the existence of the list of contracted providers through the use of a variety of advertising or marketing approaches that supply the names, addresses, and telephone numbers of contracted providers to employees; or in advance of a workplace injury, or upon notice of an injury or claim by an employee, the approaches may include, but are not limited to, the use of provider directories, the use of a list of all contracted providers in an area geographically accessible to the posting site, the use of wall cards that direct employees to a readily accessible listing of those providers at the same location as the wall cards, the use of wall cards that direct employees to a toll-free telephone number or Internet Web site address, or the use of toll-free telephone numbers or Internet Web site addresses supplied directly during the period the employer has medical control. However, Internet Web site addresses alone shall not be deemed to satisfy the requirements of this paragraph. Nothing in this paragraph shall prevent contracting agents or payors from providing only listings of providers located within a reasonable geographic range of an employee. A payor who otherwise meets the requirements of this paragraph is deemed to have met the requirements of this paragraph regardless of the employer’s ability to control medical treatment pursuant to Sections 4600 and 4600.3.

(3) Disclose whether payors to which the list of contracted providers may be sold, leased, transferred, or conveyed may be permitted to pay a provider’s contracted rate without actively encouraging the employees to use the list of contracted providers when obtaining medical care. Nothing in this subdivision shall be construed to require a payor to actively encourage the employees to use the list of contracted providers when obtaining medical care in the case of an emergency.

(4) Disclose, upon the initial signing of a contract, and within 15 business days of receipt of a written request from a provider or provider panel, a payor summary of all payors currently eligible to claim a provider’s contracted rate due to the provider’s and payor’s respective written agreements with any contracting agent.

(5) Allow providers, upon the initial signing, renewal, or amendment of a provider contract, to decline to be included in any list of contracted providers that is sold, leased, transferred, or conveyed to payors that do not actively encourage the employees to use the list of contracted providers when obtaining medical care as described in paragraph (2). Each provider’s election under this paragraph shall be binding on the contracting agent with which the provider has the contract and any other contracting agent that buys, leases, or otherwise obtains the list of contracted providers.

A provider shall not be excluded from any list of contracted providers that is sold, leased, transferred, or conveyed to payors that actively encourage the employees to use the list of contracted providers when obtaining medical care, based upon the provider’s refusal to be included on any list of contracted providers that is sold, leased, transferred, or conveyed to payors that do not actively encourage the employees to use the list of contracted providers when obtaining medical care.

(6) If the payor’s explanation of benefits or explanation of review does not identify the name of the network that has a written agreement signed by the provider whereby the payor is entitled, directly or indirectly, to pay a preferred rate for the services rendered, the contracting agent shall do the following:

(A) Maintain a Web site that is accessible to all contracted providers and updated at least quarterly and maintain a toll-free telephone number accessible to all contracted providers whereby providers may access payor summary information.

(B) Disclose through the use of an Internet Web site, a toll-free telephone number, or through a delivery or mail service to its contracted providers, within 30 days, any sale, lease assignment, transfer or conveyance of the contracted reimbursement rates to another contracting agent or payor.

(7) Nothing in this subdivision shall be construed to impose requirements or regulations upon payors, as defined in subparagraph (A) of paragraph (3) of subdivision (d).

(c) Beginning July 1, 2000, a payor, as defined in subparagraph (B) of paragraph (3) of subdivision (d), shall do all of the following:

(1) Provide an explanation of benefits or explanation of review that identifies the name of the network with which the payor has an agreement that entitles them to pay a preferred rate for the services rendered.

(2) Demonstrate that it is entitled to pay a contracted rate within 30 business days of receipt of a written request from a provider who has received a claim payment from the payor. The provider shall include in the request a statement explaining why the payment is not at the correct contracted rate for the services provided. The failure of the provider to include a statement shall relieve the payor from the responsibility of demonstrating that it is entitled to pay the disputed contracted rate. The failure of a payor to make the demonstration to a properly documented request of the provider within 30 business days shall render the payor responsible for the lesser of the provider’s actual fee or, as applicable, any fee schedule pursuant to this division, which amount shall be due and payable within 10 days of receipt of written notice from the provider, and shall bar the payor from taking any future discounts from that provider without the provider’s express written consent until the payor can demonstrate to the provider that it is entitled to pay a contracted rate as provided in this subdivision. A payor shall be deemed to have demonstrated that it is entitled to pay a contracted rate if it complies with either of the following:

(A) Describes the specific practices the payor utilizes to comply with paragraph (2) of subdivision (b), and demonstrates compliance with paragraph (1).

(B) Identifies the contracting agent with whom the payor has a written agreement whereby the payor is not required to actively encourage employees to use the list of contracted providers pursuant to paragraph (5) of subdivision (b).

(d)  For the purposes of this section, the following terms have the following meanings:

(1) “Contracting agent” means an insurer licensed under the Insurance Code to provide workers’ compensation insurance, a health care service plan, including a specialized health care service plan, a preferred provider organization, or a self-insured employer, while engaged, for monetary or other consideration, in the act of selling, leasing, transferring, assigning, or conveying a provider or provider panel to provide health care services to employees for work-related injuries.

(2) “Employee” means a person entitled to seek health care services for a work-related injury.

(3) (A) For the purposes of subdivision (b), “payor” means a health care service plan, including a specialized health care service plan, an insurer licensed under the Insurance Code to provide disability insurance that covers hospital, medical, or surgical benefits, automobile insurance, or workers’ compensation insurance, or a self-insured employer that is responsible to pay for health care services provided to beneficiaries.

(B) For the purposes of subdivision (c), “payor” means an insurer licensed under the Insurance Code to provide workers’ compensation insurance, a self-insured employer, a third-party administrator or trust, or any other third party that is responsible to pay health care services provided to employees for work-related injuries, or an agent of an entity included in this definition.

(4) “Payor summary” means a written summary that includes the payor’s name and the type of plan, including, but not limited to, a group health plan, an automobile insurance plan, and a workers’ compensation insurance plan.

(5) “Provider” means any of the following:

(A) Any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code.

(B) Any person licensed pursuant to the Chiropractic Initiative Act or the Osteopathic Initiative Act.

(C) Any person licensed pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code.

(D) A clinic, health dispensary, or health facility licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code.

(E) Any entity exempt from licensure pursuant to Section 1206 of the Health and Safety Code.

(e)  This section shall become operative on July 1, 2000.

(Amended by Stats. 2001, Ch. 159, Sec. 159. Effective January 1, 2002.)

4610.

  

(a) For purposes of this section, “utilization review” means utilization review or utilization management functions that prospectively, retrospectively, or concurrently review and approve, modify, delay, or deny, based in whole or in part on medical necessity to cure and relieve, treatment recommendations by physicians, as defined in Section 3209.3, prior to, retrospectively, or concurrent with the provision of medical treatment services pursuant to Section 4600.

(b) Every employer shall establish a utilization review process in compliance with this section, either directly or through its insurer or an entity with which an employer or insurer contracts for these services.

(c) Each utilization review process shall be governed by written policies and procedures. These policies and procedures shall ensure that decisions based on the medical necessity to cure and relieve of proposed medical treatment services are consistent with the schedule for medical treatment utilization adopted pursuant to Section 5307.27. These policies and procedures, and a description of the utilization process, shall be filed with the administrative director and shall be disclosed by the employer to employees, physicians, and the public upon request.

(d) If an employer, insurer, or other entity subject to this section requests medical information from a physician in order to determine whether to approve, modify, delay, or deny requests for authorization, the employer shall request only the information reasonably necessary to make the determination. The employer, insurer, or other entity shall employ or designate a medical director who holds an unrestricted license to practice medicine in this state issued pursuant to Section 2050 or Section 2450 of the Business and Professions Code. The medical director shall ensure that the process by which the employer or other entity reviews and approves, modifies, delays, or denies requests by physicians prior to, retrospectively, or concurrent with the provision of medical treatment services, complies with the requirements of this section. Nothing in this section shall be construed as restricting the existing authority of the Medical Board of California.

(e) No person other than a licensed physician who is competent to evaluate the specific clinical issues involved in the medical treatment services, and where these services are within the scope of the physician’s practice, requested by the physician may modify, delay, or deny requests for authorization of medical treatment for reasons of medical necessity to cure and relieve.

(f) The criteria or guidelines used in the utilization review process to determine whether to approve, modify, delay, or deny medical treatment services shall be all of the following:

(1) Developed with involvement from actively practicing physicians.

(2) Consistent with the schedule for medical treatment utilization adopted pursuant to Section 5307.27.

(3) Evaluated at least annually, and updated if necessary.

(4) Disclosed to the physician and the employee, if used as the basis of a decision to modify, delay, or deny services in a specified case under review.

(5) Available to the public upon request. An employer shall only be required to disclose the criteria or guidelines for the specific procedures or conditions requested. An employer may charge members of the public reasonable copying and postage expenses related to disclosing criteria or guidelines pursuant to this paragraph. Criteria or guidelines may also be made available through electronic means. No charge shall be required for an employee whose physician’s request for medical treatment services is under review.

(g) In determining whether to approve, modify, delay, or deny requests by physicians prior to, retrospectively, or concurrent with the provisions of medical treatment services to employees all of the following requirements shall be met:

(1) Prospective or concurrent decisions shall be made in a timely fashion that is appropriate for the nature of the employee’s condition, not to exceed five working days from the receipt of the 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. In cases where the review is retrospective, a decision resulting in denial of all or part of the medical treatment service shall be communicated to the individual who received services, or to the individual’s designee, within 30 days of receipt of information that is reasonably necessary to make this determination. If payment for a medical treatment service is made within the time prescribed by Section 4603.2, a retrospective decision to approve the service need not otherwise be communicated.

(2) When the employee’s condition is such that the employee faces an imminent and serious threat to his or her health, including, but not limited to, the potential loss of life, limb, or other major bodily function, or the normal timeframe for the decisionmaking process, as described in paragraph (1), would be detrimental to the employee’s life or health or could jeopardize the employee’s ability to regain maximum function, decisions to approve, modify, delay, or deny requests by physicians prior to, or concurrent with, the provision of medical treatment services to employees shall be made in a timely fashion that is appropriate for the nature of the employee’s condition, but not to exceed 72 hours after the receipt of the information reasonably necessary to make the determination.

(3) (A) Decisions to approve, modify, delay, or deny requests by physicians for authorization prior to, or concurrent with, the provision of medical treatment services to employees shall be communicated to the requesting physician within 24 hours of the decision. Decisions resulting in modification, delay, or denial of all or part of the requested health care service shall be communicated to physicians initially by telephone or facsimile, and to the physician and employee in writing within 24 hours for concurrent review, or within two business days of the decision for prospective review, as prescribed by the administrative director. If the request is not approved in full, disputes shall be resolved in accordance with Section 4610.5, if applicable, or otherwise in accordance with Section 4062.

(B) In the case of concurrent review, medical care shall not be discontinued until the employee’s physician has been notified of the decision and a care plan has been agreed upon by the physician that is appropriate for the medical needs of the employee. Medical care provided during a concurrent review shall be care that is medically necessary to cure and relieve, and an insurer or self-insured employer shall only be liable for those services determined medically necessary to cure and relieve. If the insurer or self-insured employer disputes whether or not one or more services offered concurrently with a utilization review were medically necessary to cure and relieve, the dispute shall be resolved pursuant to Section 4610.5, if applicable, or otherwise pursuant to Section 4062. Any compromise between the parties that an insurer or self-insured employer believes may result in payment for services that were not medically necessary to cure and relieve shall be reported by the insurer or the self-insured employer to the licensing board of the provider or providers who received the payments, in a manner set forth by the respective board and in such a way as to minimize reporting costs both to the board and to the insurer or self-insured employer, for evaluation as to possible violations of the statutes governing appropriate professional practices. No fees shall be levied upon insurers or self-insured employers making reports required by this section.

(4) Communications regarding decisions to approve requests by physicians shall specify the specific medical treatment service approved. Responses regarding decisions to modify, delay, or deny medical treatment services requested by physicians shall include a clear and concise explanation of the reasons for the employer’s decision, a description of the criteria or guidelines used, and the clinical reasons for the decisions regarding medical necessity. If a utilization review decision to deny or delay a medical service is due to incomplete or insufficient information, the decision shall specify the reason for the decision and specify the information that is needed.

(5) If the employer, insurer, or other entity cannot make a decision within the timeframes specified in paragraph (1) or (2) because the employer or other entity is not in receipt of all of the information reasonably necessary and requested, because the employer requires consultation by an expert reviewer, or because the employer has asked that an additional examination or test be performed upon the employee that is reasonable and consistent with good medical practice, the employer shall immediately notify the physician and the employee, in writing, that the employer cannot make a decision within the required timeframe, and specify the information requested but not received, the expert reviewer to be consulted, or the additional examinations or tests required. The employer shall also notify the physician and employee of the anticipated date on which a decision may be rendered. Upon receipt of all information reasonably necessary and requested by the employer, the employer shall approve, modify, or deny the request for authorization within the timeframes specified in paragraph (1) or (2).

(6) A utilization review decision to modify, delay, or deny a treatment recommendation shall remain effective for 12 months from the date of the decision without further action by the employer with regard to any further recommendation by the same physician for the same treatment unless the further recommendation is supported by a documented change in the facts material to the basis of the utilization review decision.

(7) Utilization review of a treatment recommendation shall not be required while the employer is disputing liability for injury or treatment of the condition for which treatment is recommended pursuant to Section 4062.

(8) If utilization review is deferred pursuant to paragraph (7), and it is finally determined that the employer is liable for treatment of the condition for which treatment is recommended, the time for the employer to conduct retrospective utilization review in accordance with paragraph (1) shall begin on the date the determination of the employer’s liability becomes final, and the time for the employer to conduct prospective utilization review shall commence from the date of the employer’s receipt of a treatment recommendation after the determination of the employer’s liability.

(h) Every employer, insurer, or other entity subject to this section shall maintain telephone access for physicians to request authorization for health care services.

(i) If the administrative director determines that the employer, insurer, or other entity subject to this section has failed to meet any of the timeframes in this section, or has failed to meet any other requirement of this section, the administrative director may assess, by order, administrative penalties for each failure. A proceeding for the issuance of an order assessing administrative penalties shall be subject to appropriate notice to, and an opportunity for a hearing with regard to, the person affected. The administrative penalties shall not be deemed to be an exclusive remedy for the administrative director. These penalties shall be deposited in the Workers’ Compensation Administration Revolving Fund.

(Amended by Stats. 2012, Ch. 363, Sec. 43. Effective January 1, 2013.)

4610.1.

  

An employee shall not be entitled to an increase in compensation under Section 5814 for unreasonable delay in the provision of medical treatment for periods of time necessary to complete the utilization review process in compliance with Section 4610. A determination by the appeals board or a final determination of the administrative director pursuant to independent medical review that medical treatment is appropriate shall not be conclusive evidence that medical treatment was unreasonably delayed or denied for purposes of penalties under Section 5814. In no case shall this section preclude an employee from entitlement to an increase in compensation under Section 5814 when an employer has unreasonably delayed or denied medical treatment due to an unreasonable delay in completion of the utilization review process set forth in Section 4610.

(Amended by Stats. 2012, Ch. 363, Sec. 44. Effective January 1, 2013.)

4610.3.

  

(a) Regardless of whether an employer has established a medical provider network pursuant to Section 4616 or entered into a contract with a health care organization pursuant to Section 4600.5, an employer that authorizes medical treatment shall not rescind or modify that authorization after the medical treatment has been provided based on that authorization for any reason, including, but not limited to, the employer’s subsequent determination that the physician who treated the employee was not eligible to treat that injured employee. If the authorized medical treatment consists of a series of treatments or services, the employer may rescind or modify the authorization only for the treatments or services that have not already been provided.

(b) This section shall not be construed to expand or alter the benefits available under, or the terms and conditions of, any contract, including, but not limited to, existing medical provider network and health care organization contracts.

(c) This section shall not be construed to impact the ability of the employer to transfer treatment of an injured employee into a medical provider network or health care organization. This subdivision is declaratory of existing law.

(d) This section shall not be construed to establish that a provider of authorized medical treatment is the physician primarily responsible for managing the injured employee’s care for purposes of rendering opinions on all medical issues necessary to determine eligibility for compensation.

(Added by Stats. 2009, Ch. 436, Sec. 1. Effective January 1, 2010.)

4610.5.

  

(a) This section applies to the following disputes:

(1) Any dispute over a utilization review decision regarding treatment for an injury occurring on or after January 1, 2013.

(2) Any dispute over a utilization review decision if the decision is communicated to the requesting physician on or after July 1, 2013, regardless of the date of injury.

(b) A dispute described in subdivision (a) shall be resolved only in accordance with this section.

(c) For purposes of this section and Section 4610.6, the following definitions apply:

(1) “Disputed medical treatment” means medical treatment that has been modified, delayed, or denied by a utilization review decision.

(2) “Medically necessary” and “medical necessity” mean medical treatment that is reasonably required to cure or relieve the injured employee of the effects of his or her injury and based on the following standards, which shall be applied in the order listed, allowing reliance on a lower ranked standard only if every higher ranked standard is inapplicable to the employee’s medical condition:

(A) The guidelines adopted by the administrative director pursuant to Section 5307.27.

(B) Peer-reviewed scientific and medical evidence regarding the effectiveness of the disputed service.

(C) Nationally recognized professional standards.

(D) Expert opinion.

(E) Generally accepted standards of medical practice.

(F) Treatments that are likely to provide a benefit to a patient for conditions for which other treatments are not clinically efficacious.

(3) “Utilization review decision” means a decision pursuant to Section 4610 to modify, delay, or deny, based in whole or in part on medical necessity to cure or relieve, a treatment recommendation or recommendations by a physician prior to, retrospectively, or concurrent with, the provision of medical treatment services pursuant to Section 4600 or subdivision (c) of Section 5402.

(4) Unless otherwise indicated by context, “employer” means the employer, the insurer of an insured employer, a claims administrator, or a utilization review organization, or other entity acting on behalf of any of them.

(d) If a utilization review decision denies, modifies, or delays a treatment recommendation, the employee may request an independent medical review as provided by this section.

(e) A utilization review decision may be reviewed or appealed only by independent medical review pursuant to this section. Neither the employee nor the employer shall have any liability for medical treatment furnished without the authorization of the employer if the treatment is delayed, modified, or denied by a utilization review decision unless the utilization review decision is overturned by independent medical review in accordance with this section.

(f) As part of its notification to the employee regarding an initial utilization review decision that denies, modifies, or delays a treatment recommendation, the employer shall provide the employee with a form not to exceed two pages, prescribed by the administrative director, and an addressed envelope, which the employee may return to the administrative director or the administrative director’s designee to initiate an independent medical review. The employer shall include on the form any information required by the administrative director to facilitate the completion of the independent medical review. The form shall also include all of the following:

(1) Notice that the utilization review decision is final unless the employee requests independent medical review.

(2) A statement indicating the employee’s consent to obtain any necessary medical records from the employer or insurer and from any medical provider the employee may have consulted on the matter, to be signed by the employee.

(3) Notice of the employee’s right to provide information or documentation, either directly or through the employee’s physician, regarding the following:

(A) The treating physician’s recommendation indicating that the disputed medical treatment is medically necessary for the employee’s medical condition.

(B) Medical information or justification that a disputed medical treatment, on an urgent care or emergency basis, was medically necessary for the employee’s medical condition.

(C) Reasonable information supporting the employee’s position that the disputed medical treatment is or was medically necessary for the employee’s medical condition, including all information provided to the employee by the employer or by the treating physician, still in the employee’s possession, concerning the employer’s or the physician’s decision regarding the disputed medical treatment, as well as any additional material that the employee believes is relevant.

(g) The independent medical review process may be terminated at any time upon the employer’s written authorization of the disputed medical treatment.

(h) (1) The employee may submit a request for independent medical review to the division no later than 30 days after the service of the utilization review decision to the employee.

(2) If at the time of a utilization review decision the employer is also disputing liability for the treatment for any reason besides medical necessity, the time for the employee to submit a request for independent medical review to the administrative director or administrative director’s designee is extended to 30 days after service of a notice to the employee showing that the other dispute of liability has been resolved.

(3) If the employer fails to comply with subdivision (f) at the time of notification of its utilization review decision, the time limitations for the employee to submit a request for independent medical review shall not begin to run until the employer provides the required notice to the employee.

(4) A provider of emergency medical treatment when the employee faced an imminent and serious threat to his or her health, including, but not limited to, the potential loss of life, limb, or other major bodily function, may submit a request for independent medical review on its own behalf. A request submitted by a provider pursuant to this paragraph shall be submitted to the administrative director or administrative director’s designee within the time limitations applicable for an employee to submit a request for independent medical review.

(i) An employer shall not engage in any conduct that has the effect of delaying the independent review process. Engaging in that conduct or failure of the employer to promptly comply with this section is a violation of this section and, in addition to any other fines, penalties, and other remedies available to the administrative director, the employer shall be subject to an administrative penalty in an amount determined pursuant to regulations to be adopted by the administrative director, not to exceed five thousand dollars ($5,000) for each day that proper notification to the employee is delayed. The administrative penalties shall be paid to the Workers’ Compensation Administration Revolving Fund.

(j) For purposes of this section, an employee may designate a parent, guardian, conservator, relative, or other designee of the employee as an agent to act on his or her behalf. A designation of an agent executed prior to the utilization review decision shall not be valid. The requesting physician may join with or otherwise assist the employee in seeking an independent medical review, and may advocate on behalf of the employee.

(k) The administrative director or his or her designee shall expeditiously review requests and immediately notify the employee and the employer in writing as to whether the request for an independent medical review has been approved, in whole or in part, and, if not approved, the reasons therefor. If there appears to be any medical necessity issue, the dispute shall be resolved pursuant to an independent medical review, except that, unless the employer agrees that the case is eligible for independent medical review, a request for independent medical review shall be deferred if at the time of a utilization review decision the employer is also disputing liability for the treatment for any reason besides medical necessity.

(l) Upon notice from the administrative director that an independent review organization has been assigned, the employer shall provide to the independent medical review organization all of the following documents within 10 days of notice of assignment:

(1) A copy of all of the employee’s medical records in the possession of the employer or under the control of the employer relevant to each of the following:

(A) The employee’s current medical condition.

(B) The medical treatment being provided by the employer.

(C) The disputed medical treatment requested by the employee.

(2) A copy of all information provided to the employee by the employer concerning employer and provider decisions regarding the disputed treatment.

(3) A copy of any materials the employee or the employee’s provider submitted to the employer in support of the employee’s request for the disputed treatment.

(4) A copy of any other relevant documents or information used by the employer or its utilization review organization in determining whether the disputed treatment should have been provided, and any statements by the employer or its utilization review organization explaining the reasons for the decision to deny, modify, or delay the recommended treatment on the basis of medical necessity. The employer shall concurrently provide a copy of the documents required by this paragraph to the employee and the requesting physician, except that documents previously provided to the employee or physician need not be provided again if a list of those documents is provided.

(m) Any newly developed or discovered relevant medical records in the possession of the employer after the initial documents are provided to the independent medical review organization shall be forwarded immediately to the independent medical review organization. The employer shall concurrently provide a copy of medical records required by this subdivision to the employee or the employee’s treating physician, unless the offer of medical records is declined or otherwise prohibited by law. The confidentiality of medical records shall be maintained pursuant to applicable state and federal laws.

(n) If there is an imminent and serious threat to the health of the employee, as specified in subdivision (c) of Section 1374.33 of the Health and Safety Code, all necessary information and documents required by subdivision (l) shall be delivered to the independent medical review organization within 24 hours of approval of the request for review.

(o) The employer shall promptly issue a notification to the employee, after submitting all of the required material to the independent medical review organization, that lists documents submitted and includes copies of material not previously provided to the employee or the employee’s designee.

(Amended by Stats. 2014, Ch. 217, Sec. 2. Effective January 1, 2015.)

4610.6.

  

(a) Upon receipt of a case pursuant to Section 4610.5, an independent medical review organization shall conduct the review in accordance with this article and any regulations or orders of the administrative director. The organization’s review shall be limited to an examination of the medical necessity of the disputed medical treatment.

(b) Upon receipt of information and documents related to a case, the medical reviewer or reviewers selected to conduct the review by the independent medical review organization shall promptly review all pertinent medical records of the employee, provider reports, and any other information submitted to the organization or requested from any of the parties to the dispute by the reviewers. If the reviewers request information from any of the parties, a copy of the request and the response shall be provided to all of the parties. The reviewer or reviewers shall also review relevant information related to the criteria set forth in subdivision (c).

(c) Following its review, the reviewer or reviewers shall determine whether the disputed health care service was medically necessary based on the specific medical needs of the employee and the standards of medical necessity as defined in subdivision (c) of Section 4610.5.

(d) The organization shall complete its review and make its determination in writing, and in layperson’s terms to the maximum extent practicable, within 30 days of the receipt of the request for review and supporting documentation, or within less time as prescribed by the administrative director. If the disputed medical treatment has not been provided and the employee’s provider or the administrative director certifies in writing that an imminent and serious threat to the health of the employee may exist, including, but not limited to, serious pain, the potential loss of life, limb, or major bodily function, or the immediate and serious deterioration of the health of the employee, the analyses and determinations of the reviewers shall be expedited and rendered within three days of the receipt of the information. Subject to the approval of the administrative director, the deadlines for analyses and determinations involving both regular and expedited reviews may be extended for up to three days in extraordinary circumstances or for good cause.

(e) The medical professionals’ analyses and determinations shall state whether the disputed health care service is medically necessary. Each analysis shall cite the employee’s medical condition, the relevant documents in the record, and the relevant findings associated with the provisions of subdivision (c) to support the determination. If more than one medical professional reviews the case, the recommendation of the majority shall prevail. If the medical professionals reviewing the case are evenly split as to whether the disputed health care service should be provided, the decision shall be in favor of providing the service.

(f) The independent medical review organization shall provide the administrative director, the employer, the employee, and the employee’s provider with the analyses and determinations of the medical professionals reviewing the case, and a description of the qualifications of the medical professionals. The independent medical review organization shall keep the names of the reviewers confidential in all communications with entities or individuals outside the independent medical review organization. If more than one medical professional reviewed the case and the result was differing determinations, the independent medical review organization shall provide each of the separate reviewer’s analyses and determinations.

(g) The determination of the independent medical review organization shall be deemed to be the determination of the administrative director and shall be binding on all parties.

(h) A determination of the administrative director pursuant to this section may be reviewed only by a verified appeal from the medical review determination of the administrative director, filed with the appeals board for hearing pursuant to Chapter 3 (commencing with Section 5500) of Part 4 and served on all interested parties within 30 days of the date of mailing of the determination to the aggrieved employee or the aggrieved employer. The determination of the administrative director shall be presumed to be correct and shall be set aside only upon proof by clear and convincing evidence of one or more of the following grounds for appeal:

(1) The administrative director acted without or in excess of the administrative director’s powers.

(2) The determination of the administrative director was procured by fraud.

(3) The independent medical reviewer was subject to a material conflict of interest that is in violation of Section 139.5.

(4) The determination was the result of bias on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, or disability.

(5) The determination was the result of a plainly erroneous express or implied finding of fact, provided that the mistake of fact is a matter of ordinary knowledge based on the information submitted for review pursuant to Section 4610.5 and not a matter that is subject to expert opinion.

(i) If the determination of the administrative director is reversed, the dispute shall be remanded to the administrative director to submit the dispute to independent medical review by a different independent review organization. In the event that a different independent medical review organization is not available after remand, the administrative director shall submit the dispute to the original medical review organization for review by a different reviewer in the organization. In no event shall a workers’ compensation administrative law judge, the appeals board, or any higher court make a determination of medical necessity contrary to the determination of the independent medical review organization.

(j) Upon receiving the determination of the administrative director that a disputed health care service is medically necessary, the employer shall promptly implement the decision as provided by this section unless the employer has also disputed liability for any reason besides medical necessity. In the case of reimbursement for services already rendered, the employer shall reimburse the provider or employee, whichever applies, within 20 days, subject to resolution of any remaining issue of the amount of payment pursuant to Sections 4603.2 to 4603.6, inclusive. In the case of services not yet rendered, the employer shall authorize the services within five working days of receipt of the written determination from the independent medical review organization, or sooner if appropriate for the nature of the employee’s medical condition, and shall inform the employee and provider of the authorization.

(k) Failure to pay for services already provided or to authorize services not yet rendered within the time prescribed by subdivision (l) is a violation of this section and, in addition to any other fines, penalties, and other remedies available to the administrative director, the employer shall be subject to an administrative penalty in an amount determined pursuant to regulations to be adopted by the administrative director, not to exceed five thousand dollars ($5,000) for each day the decision is not implemented. The administrative penalties shall be paid to the Workers’ Compensation Administration Revolving Fund.

(l) The costs of independent medical review and the administration of the independent medical review system shall be borne by employers through a fee system established by the administrative director. After considering any relevant information on program costs, the administrative director shall establish a reasonable, per-case reimbursement schedule to pay the costs of independent medical review organization reviews and the cost of administering the independent medical review system, which may vary depending on the type of medical condition under review and on other relevant factors.

(m) The administrative director may publish the results of independent medical review determinations after removing individually identifiable information.

(n) If any provision of this section, or the application thereof to any person or circumstances, is held invalid, the remainder of the section, and the application of its provisions to other persons or circumstances, shall not be affected thereby.

(Added by Stats. 2012, Ch. 363, Sec. 46. Effective January 1, 2013.)

4611.

  

(a) When a contracting agent sells, leases, or transfers a health provider’s contract to a payor, the rights and obligations of the provider shall be governed by the underlying contract between the health care provider and the contracting agent.

(b) For purposes of this section, the following terms have the following meanings:

(1) “Contracting agent” has the meaning set forth in paragraph (2) of subdivision (d) of Section 4609.

(2) “Payor” has the meaning set forth in paragraph (3) of subdivision (d) of Section 4609.

(Added by renumbering Section 4610 (as added by Stats. 2003, Ch. 203) by Stats. 2004, Ch. 183, Sec. 264. Effective January 1, 2005.)

4614.

  

(a) (1) Notwithstanding Section 5307.1, where the employee’s individual or organizational provider of health care services rendered under this division and paid on a fee-for-service basis is also the provider of health care services under contract with the employee’s health benefit program, and the service or treatment provided is included within the range of benefits of the employee’s health benefit program, and paid on a fee-for-service basis, the amount of payment for services provided under this division, for a work-related occurrence or illness, shall be no more than the amount that would have been paid for the same services under the health benefit plan, for a non-work-related occurrence or illness.

(2) A health care service plan that arranges for health care services to be rendered to an employee under this division under a contract, and which is also the employee’s organizational provider for nonoccupational injuries and illnesses, with the exception of a nonprofit health care service plan that exclusively contracts with a medical group to provide or arrange for medical services to its enrollees in a designated geographic area, shall be paid by the employer for services rendered under this division only on a capitated basis.

(b) (1) Where the employee’s individual or organizational provider of health care services rendered under this division who is not providing services under a contract is not the provider of health care services under contract with the employee’s health benefit program or where the services rendered under this division are not within the benefits provided under the employer-sponsored health benefit program, the provider shall receive payment that is no more than the average of the payment that would have been paid by five of the largest preferred provider organizations by geographic region. Physicians, as defined in Section 3209.3, shall be reimbursed at the same averaged rates, regardless of licensure, for the delivery of services under the same procedure code. This subdivision shall not apply to a health care service plan that provides its services on a capitated basis.

(2) The administrative director shall identify the regions and the five largest carriers in each region. The carriers shall provide the necessary information to the administrative director in the form and manner requested by the administrative director. The administrative director shall make this information available to the affected providers on an annual basis.

(c) Nothing in this section shall prohibit an individual or organizational health care provider from being paid fees different from those set forth in the official medical fee schedule by an employer, insurance carrier, third-party administrator on behalf of employers, or preferred provider organization representing an employer or insurance carrier provided that the administrative director has determined that the alternative negotiated rates between the organizational or individual provider and a payer, a third-party administrator on behalf of employers, or a preferred provider organization will produce greater savings in the aggregate than if each item on billings were to be charged at the scheduled rate.

(d) For the purposes of this section, “organizational provider” means an entity that arranges for health care services to be rendered directly by individual caregivers. An organizational provider may be a health care service plan, disability insurer, health care organization, preferred provider organization, or workers’ compensation insurer arranging for care through a managed care network or on a fee-for-service basis. An individual provider is either an individual or institution that provides care directly to the injured worker.

(Amended by Stats. 2002, Ch. 866, Sec. 11. Effective January 1, 2003.)

4614.1.

  

Notwithstanding subdivision (f) of Section 1345 of the Health and Safety Code, a health care service plan licensed pursuant to the Knox-Keene Health Care Service Plan Act and certified by the administrative director pursuant to Section 4600.5 to provide health care pursuant to Section 4600.3 shall be permitted to accept payment from a self-insured employer, a group of self-insured employers, or the insurer of an employer on a fee-for-service basis for the provision of such health care as long as the health care service plan is not both the health care organization in which the employee is enrolled and the plan through which the employee receives regular health benefits.

(Amended by Stats. 1993, Ch. 1242, Sec. 35. Effective January 1, 1994.)

 

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California Code of Regulations, Title 8

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en banc decisions

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1:49 PM

2014 en banc decisions

Jose Dubon

v.

World Restoration, Inc.; and State Compensation Insurance Fund

Oct. 6, 2014

2014-EB-7

Case No: ADJ4274323 (ANA 0387677) - ADJ1601669 (ANA 0388466)

 

 

79 Cal. Comp. Cases 1298

 

 

After granting reconsideration of its prior en banc decision in order to further review and study the issues, the Appeals Board issued its decision after reconsideration wherein it rescinded its en banc decision of February 27, 2014, affirmed the workers’ compensation administrative law judge’s decision, which determined that the medical necessity of applicant’s requested back surgery must be determined by independent medical review (IMR), notwithstanding any procedural defects in defendant’s timely utilization review (UR) decision, and held as follows:

  1. A UR decision is invalid and not subject to independent medical review (IMR) only if it is untimely;
  2. Legal issues regarding the timeliness of a UR decision must be resolved by the Workers’ Compensation Appeals Board (WCAB), not IMR;
  3. All other disputes regarding a UR decision must be resolved by IMR;
  4. If a UR decision is untimely, the determination of medical necessity may be made by the WCAB based on substantial medical evidence consistent with Labor Code section 4604.5.

 

 

Roque Neri Hernandez

v.

Geneva Staffing, Inc. dba Workforce Outsourcing, Inc.;

Tower Point National Insurance Company, administered by Tower Select Insurance

June 12, 2014

2014-EB-6

Case No: ADJ7995806

 

 

79 Cal. Comp. Cases 682

 

 

With regard to the SB 863 additions and amendments to the Labor Code regarding home health care services, which became effective January 1, 2013, the Appeals Board held:

  1. Sections 4600(h), 4603.2(b)(1), and 5307.8 apply to requests for home health care services in all cases which are not final regardless of date of injury or dates of service.
  2. The prescription required by section 4600(h) is either an oral referral, recommendation or order for home health care services for an injured worker communicated directly by a physician to an employer and/or its agent; or, a signed and dated written referral, recommendation or order by a physician for home health care services for an injured worker.
  3. Under section 4600(h) home health care services are subject to either section 5307.1 or section 5307.8; section 5307.1 applies where an official medical fee schedule or Medicare schedule covers the type of home health care services sought; and otherwise, section 5307.8 applies.

 

 

Jose Dubon

v.

World Restoration, Inc; and State Compensation Insurance Fund

May 22, 2014

2014-EB-5

Case No: ADJ4274323 (ANA 0387677) - ADJ1601669 (ANA 0388466)

 

 

79 Cal. Comp. Cases 566

 

 

The Appeals Board granted State Compensation Insurance Fund?s petition for reconsideration of the February 27, 2014 Opinion and Decision After Reconsideration (En Banc) wherein the Appeals Board previously held that the Workers? Compensation Appeals Board may determine if a utilization review decision suffered from material defects that undermine the integrity of the decision, and if so, it may then determine the medical necessity issue based on substantial medical evidence. (See Dubon v. World Restoration, Inc. (2014) 79 Cal.Comp.Cases 313 (Appeals Board en banc) (Dubon).) Reconsideration was granted in order to allow sufficient opportunity to further study the factual and legal issues, noting that the prior decision remains in effect and binding pending a decision after reconsideration in the present matter.

 

 

Warren Brower

v.

David Jones Construction; State Compensation Insurance Fund

May 21, 2014

2014-EB-4

Case No: ADJ802221 (SJO 0258870)

 

 

79 Cal. Comp. Cases 550

 

 

Where the applicant had exhausted the 104 weeks of allowable temporary disability indemnity payments but was not yet permanent and stationary, and where the applicant was subsequently declared to be permanently totally disabled, the Appeals Board held:

  1. When a defendant stops paying temporary disability indemnity pursuant to section 4656(c) before an injured worker is determined to be permanent and stationary, the defendant shall commence paying permanent disability indemnity based on a reasonable estimate of the injured worker's ultimate level of permanent disability.
  2. When an injured worker who is receiving permanent partial disability payments pursuant to section
    4650(b)(1) becomes permanent and stationary and is determined to be permanently totally disabled, the defendant shall pay permanent total disability indemnity retroactive to the date its statutory obligation to pay temporary disability indemnity terminated.
  3. COLAs begin on the first day in January after an injured worker becomes entitled to receive permanent disability indemnity pursuant to sections 4650(b)(1) or (b)(2).

 

 

Ismael Navarro

v.

City of Montebello, administered by Corvel Corporation

April 2, 2014

2014-EB-3

Case No: ADJ6779197 - ADJ7472140 - ADJ7964720

 

 

79 Cal. Comp. Cases 418

 

 

The Appeals Board determined that for his two new claims of injury the applicant did not have to be evaluated by the panel qualified medical evaluator (panel QME) who previously evaluated him for his original claim of injury, holding that:

  1. The Labor Code does not require an employee to return to the same panel QME for an evaluation of a subsequent claim of injury; and
  2. The requirement in Rule 35.5(e) that an employee return to the same evaluator when a new injury or illness is claimed involving the same parties and the same type of body parts is inconsistent with the Labor Code, and therefore, this requirement is invalid.

 

 

Jose Dubon

v.

World Restoration, Inc.; and State Compensation Insurance Fund

Feb. 27, 2014

2014-EB-2

Case No: ADJ4274323 (ANA 0387677) - ADJ1601669 (ANA 0388466)

 

 

79 Cal. Comp. Cases 313

 

 

In reaching its decision in this case that the Utilization Review (UR) decision was invalid, that the UR decision therefore was not subject to Independent Medical Review (IMR), and that the WCJ must then determine the medical necessity of the requested treatment based on substantial medical evidence, the Appeals Board specifically held as follows:

  1. IMR solely resolves disputes over the medical necessity of treatment requests. Issues of timeliness and compliance with statutes and regulations governing UR are legal disputes within the jurisdiction of the WCAB.
  2. A UR decision is invalid if it is untimely or suffers from material procedural defects that undermine the integrity of the UR decision. Minor technical or immaterial defects are insufficient to invalidate a defendant's UR determination.
  3. If a defendant's UR is found invalid, the issue of medical necessity is not subject to IMR but is to be determined by the WCAB based upon substantial medical evidence, with the employee having the burden of proving the treatment is reasonably required.
  4. If there is a timely and valid UR, the issue of medical necessity shall be resolved through the IMR process if requested by the employee.

 

 

Ismael Navarro

v.

City of Montebello, administered by Corvel Corporation

Feb. 27, 2014

2014-EB-1

Case No:ADJ6779197 - ADJ7472140 - ADJ7964720

 

 

79 Cal. Comp. Cases 328

 

 

In order to give the Division of Workers' Compensation and the parties an opportunity to address the issues raised by its proposed holdings as to the Labor Code and Rule 35.5(e) (Cal. Code Regs., tit. 8, sec. 35.5(e).), the Appeals Board granted removal and issued a twenty-day notice of intention to hold as follows:

  1. The Labor Code does not require an employee to return to the same panel QME for an evaluation of a subsequent claim of injury.
  2. The requirement in Rule 35.5(e) that an employee return to the same evaluator when a new injury or illness is claimed involving the same parties and the same type of body parts is inconsistent with the Labor Code, and this requirement is therefore invalid.

 

 

2013 en banc decisions

Carroll Wesley

v.

Cincinnati Bengals, Permissibly Self-Insured; New Orleans Saints, Louisiana Workers' Compensation Corporation; Travelers Insurance.

June 18, 2013

2013-EB-6

Case No: ADJ2295331 (ANA 0397551)

 

 

78 Cal. Comp. Cases 655

 

 

The Appeals Board held that an employee and his or her employer are exempted by Labor Code section 3600.5(b) from the provisions of the California workers? compensation law when the employee was hired outside of California and all of the following apply: (1) the employee is temporarily within California doing work for the employer, (2) the employer furnished coverage under the workers? compensation or similar laws of another state that covers the employee?s employment while in California, (3) the other state recognizes California?s extraterritorial provisions, and (4) the other state likewise exempts California employers and employees covered by California?s workers? compensation laws from the application of its workers? compensation or similar laws.

 

 

Luis Martinez

v.

Ana Terrazas; Allstate Insurance Co., Administered by Specialty Risk Services

May 7, 2013

2013-EB-5

Case No: ADJ7613459

 

 

78 Cal. Comp. Cases 444

 

 

Where a medical-legal lien claim for copy costs was filed before January 1, 2013, and after January 1, 2013 it was withdrawn and re-filed as a petition for costs under Labor Code section 5811, the Appeals Board held: (1) a claim for medical-legal expenses may not be filed as a petition for costs under section 5811; and (2) medical-legal lien claimants who withdrew their liens and filed petitions for costs prior to this decision may pursue recovery through the lien process if they comply with the lien activation fee requirements of section 4903.06 and if their liens have not otherwise been dismissed.

 

 

Eliezer Figueroa

v.

B.C Doering Co.; Employers Compensation Insurance Fund

April 25, 2013

2013-EB-4

Case No:

ADJ3274228 (AHM 0120365)

 

 

78 Cal. Comp. Cases 439

 

 

The Appeals Board held that, where a lien claim falls within the lien activation fee requirements of Labor Code section 4903.06: (1) the lien activation fee must be paid prior to the commencement of a lien conference, which is the time that the conference is scheduled to begin, not the time when the case is actually called; (2) if the lien claimant fails to pay the lien activation fee prior to the commencement of a lien conference and/or fails to provide proof of payment at the conference, its lien must be dismissed with prejudice; (3) a breach of the defendant's duty to serve required documents or to engage in settlement negotiations does not excuse a lien claimant's obligation to pay the lien activation fee; and (4) a notice of intention is not required prior to dismissing a lien with prejudice for failure to pay the lien activation fee or failure to present proof of payment of the lien activation fee at a lien conference.

 

 

Luis Enriquez

v.

Couto Dairy and Zenith Insurance Co

March 28, 2013

2013-EB-3

Misc. No. 254

 

 

78 Cal. Comp. Cases 323

 

 

The Appeals Board held that: (1) neither Article III, section 3.5 of the California Constitution nor Labor Code section 5307.1 prevents the Appeals Board from finding preemption of AD Rule 9789.70, which contains the Official Medical Fee Schedule ("OMFS") for air ambulance services; (2) the ADA preempts AD Rule 9789.70 if the lien claimant for air ambulance services is an "an air carrier that may provide air transportation" within the meaning of the preemption provision of the ADA; and (3) the air ambulance provider has the burden of showing it is an "an air carrier that may provide air transportation" within the meaning of the preemption provision of the ADA, including showing that it is authorized to provide interstate air transportation

 

 

Daniel Escamilla

Feb. 14, 2013

2013-EB-2

Misc. No. 254

 

 

78 Cal. Comp. Cases 134

 

 

After issuing a Notice of Hearing (NOH) (In Re Escamilla (2011) 76 Cal.Comp.Cases 944 [Appeals Board en banc]) initiating proceedings to consider suspending or removing Daniel Escamilla's privilege to appear before the Workers' Compensation Appeals Board (WCAB) as a nonattorney hearing representative pursuant to Labor Code section 4907, and after conducting evidentiary hearings on the issue, the Appeals Board determined that there was a pattern of sanctionable conduct in 11 cases, which constitutes good cause to suspend Mr. Escamilla's privilege to appear as a hearing representative in any WCAB proceedings for a period of 90 days. The suspension will commence 45 days from the filing of this decision.

 

 

Dennis McKinley

v

Arizona Cardinals; The Travelers Indemnity Company

Jan. 15, 2013

2013-EB-1

2013-EB-1

word image

Case No. ADJ7460656

 

 

78 Cal. Comp. Cases 23

 

 

In the case of a professional athlete who entered his employment contract in Arizona, played for the Arizona Cardinals for four years, and filed a cumulative industrial injury claim in California, the Appeals Board held that it will decline to exercise jurisdiction over a claim of cumulative industrial injury when there is a reasonable mandatory forum selection clause in the employment contract specifying that claims for workers' compensation shall be filed in a forum other than California, and there is limited connection to California with regard to the employment and the claimed cumulative injury. It was also held that party challenging the validity of a mandatory forum selection clause shall bear the burden of showing that the clause is unreasonable.

 

 

2012 en banc decisions

Tito Torres

v

AJC Sandblasting; and Zurich North America

Nov 15, 2012

2012-EB-4

2012-EB-4

word image

Case No. ADJ909554 LAO (0824849) and ADJ1856854 (LAO 0837910)

 

 

77 Cal. Comp. Cases 1113

 

 

In the context of a lien claimant proceeding to trial as a party after the injured employee?s case has been resolved, the appeals board held: (1) Labor Code sections 3202.5 and 5705 mandate that a lien claimant must prove by a preponderance of the evidence all elements necessary to establish the validity of their lien before the burden of proof shifts to the defendant. (2) To the extent the Keifer and Garcia decisions held that a lien claimant can establish a prima facie right to recovery simply by introducing a billing statement showing that services were provided to a worker in connection with a claimed injury, those decisions have been nullified by sections 3202.5 and 5705 and subsequent case law. (3) Proceeding to trial without any evidence or with evidence that is utterly incapable of meeting its burden of proof is frivolous and constitutes bad faith within the meaning of section 5813, justifying an award of sanctions, attorney?s fees and costs against the party or lien claimant, its attorney(s) or hearing representative(s), individually or jointly and severally.

 

 

In Re Daniel Escamilla

April 20, 2012

2012-EB-3

2012-EB-3

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Misc. No. 254

 

 

77 Cal. Comp. Cases 430

 

 

The Appeals Board denied Daniel Escamilla's "Petition for Order Requiring Board to Produce All Case Documents Relating to Sanction Proceedings in Eleven Cases Being Used Against Respondent" and denied Mr. Escamilla's "Objection to Order Requiring Submission of Offer of Proof and Petition for Removal to Obtain Ruling on Petition to Produce and to Obtain Clarification of Specific Issues to be Determined by Board in Connection with its Determination under Labor Code Section 4907."

 

 

In Re Daniel Escamilla

January 20, 2012

2012-EB-2

2012-EB-2

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Misc. No. 254

 

 

77 Cal. Comp. Cases 75

 

 

With regard to the Notice of Hearing to take evidence on whether or not it will suspend or remove hearing representative Daniel Escamilla?s privilege to appear, and in response to Mr. Escamilla?s petition, the Appeals Board dismissed the Petition for Change of Venue, denied the Request for Immediate Stay of Proceedings, affirmed the order relieving Mr. Escamilla?s counsel, continued the January 27, 2012 hearing, and directed the hearing officer to reschedule the pre-hearing conference for no sooner than 45 days from the date of this decision, to be followed by a hearing approximately 45 days after the conference.

 

 

In Re Daniel Escamilla

January 4, 2012

2012-EB-1

2012-EB-1

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Misc. No. 254

 

 

77 Cal. Comp. Cases 71

 

 

The petition for reconsideration filed by Daniel Escamilla against the September 21, 2011 Notice of Hearing Regarding Suspension or Removal of Privilege of Daniel Escamilla to Appear was dismissed by the Appeals Board as both untimely and not from a final order, decision, or award.

 

 

2011 en banc decisions

Tsegay Messele

v.

PITCO FOODS, INC.; Califonia Insurance Company

Nov. 22, 2011

2011-EB-8

2011-EB-8

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Case No. ADJ7232076

 

 

76 Cal. Comp. Cases 1318

 

 

After granting reconsideration of its prior en banc decision and issuing a notice of intention to modify the decision to apply prospectively, the Appeals Board issued its decision after reconsideration, holding that the principles set forth in the prior decision, as to the timeliness of seeking a panel of Qualified Medical Examiners (QME), apply prospectively to panel QME requests made after the date of the prior decision, September 26, 2011.

 

 

Tsegay Messele

v.

PITCO FOODS, INC.; Califonia Insurance Company

Nov. 4, 2011

2011-EB-7

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2011-EB-7

Case No. ADJ7232076

 

 

76 Cal. Comp. Cases 1187

 

 

On its own motion under Labor Code section 5911, the Appeals Board granted reconsideration of its prior en banc decision in this matter, and issued a notice of intention to modify its prior decision to hold that the principles set forth in the prior decision, as to the timeliness of seeking a panel of Qualified Medical Examiners (QME), apply prospectively to panel QME requests made after the date of the prior decision, September 26, 2011. The Appeals Board allowed ten days (plus an additional five days for mailing) to allow any interested individual or organization to respond to the notice, after which time the Appeals Board will issue its final decision.

 

 

Elayne Valdez

v.

Warehouse Demo Services; Zurich North America, Adjusted By ESIS

Sept. 27, 2011

2011-EB-6

2011-EB-6

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Case No. ADJ7048296

 

 

76 Cal. Comp. Cases 970

 

 

After granting reconsideration of its prior en banc decision in order to allow the opportunity to further study the factual and legal issues presented in the case, the Appeals Board issued its decision after reconsideration affirming its prior holding that, where unauthorized treatment is obtained for an industrial injury outside a validly established and properly noticed Medical Provider Network (MPN), the resulting non-MPN treatment reports are inadmissible.

 

 

Tsegay Messele

v.

Pitco Foods, Inc.; California Insurance Company

Sept. 26, 2011

2011-EB-5

2011-EB-5

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Case No. ADJ7232076

 

 

76 Cal. Comp. Cases 956

 

 

The Appeals Board held (1) when the first written agreed medical examiner (AME) proposal is made by mail or by any method other than personal service, the period for seeking agreement on an AME under Labor Code section 4062.2(b) is extended five calendar days if the physical address of the party being served with the first written proposal is within California; (2) during this 15 day period the parties may not request a panel of Qualified Medical Examiners; and (3) the time period set forth in Labor Code section 4062.2(b) for seeking agreement on an AME starts with the day after the date of the first written proposal and includes the last day.

 

 

In Re Daniel Escamilla

Sept. 21, 2011

2011-EB-4

2011-EB-4

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Misc. No. 254

 

 

76 Cal. Comp. Cases 944

 

 

The Appeals Board issued a notice that a hearing is set to take evidence on whether or not it will suspend or remove hearing representative Daniel Escamilla?s privilege to appear in any proceeding as a representative of any party before the Appeals Board or any workers? compensation administrative law judge pursuant to Labor Code section 4907.

 

 

Elayne Valdez

v.

Warehouse Demo Services; Zurich North America, Adjusted by ESIS

 

July 14, 2011

2011-EB-3

2011-EB-3

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Case No. ADJ7048296

 

 

76 Cal. Comp. Cases 665

 

 

The Appeals Board granted reconsideration of its prior en banc decision in order to allow the opportunity to further study the factual and legal issues presented in the case. The Appeals Board previously held that, where unauthorized medical treatment is obtained outside a validly established and properly noticed Medical Provider Network (MPN), reports from the non-MPN doctors are inadmissible. After completing its study the Appeals Board will issue a Decision After Reconsideration modifying, amending, or affirming the prior decision.

 

 

Elayne Valdez

v.

Warehouse Demo Services; Zurich North America, Adjusted by ESIS

 

April 20, 2011

2011-EB-2

2011-EB-2

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Case No. ADJ7048296

 

 

76 Cal. Comp. Cases 330

 

 

The Appeals Board held that, where unauthorized medical treatment is obtained outside a validly established and properly noticed Medical Provider Network (MPN), reports from the non-MPN doctors are inadmissible, they may not be relied upon, and defendant is not liable for their cost.

 

 

Jose Guitron

v.

Santa Fe Extruders; and State Compensation Insurance fund

 

March 17, 2011

2011-EB-1

2011-EB-1

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Case No. ADJ163338 (LAO 0873468)

 

 

76 Cal. Comp. Cases 228

 

 

The Appeals Board held that: 1) pursuant to the employer's obligation under Labor Code section 4600 to provide medical treatment reasonably required to cure or relieve the injured worker from the effects of his or her injury, the employer is required to provide reasonably required interpreter services during medical treatment appointments for an injured worker who is unable to speak, understand, or communicate in English; and 2) to recover its charges for interpreter services, the interpreter lien claimant has the burden of proving, among other things, that the services it provided were reasonably required, that the services were actually provided, that the interpreter was qualified to provide the services, and that the fees charged were reasonable.

 

 

2010 en banc decisions

Amelia Mendoza

v.

Huntington Hospital, Permissibly Self-Insured; and

Sedwick Claims Management Services, Inc. (Adjusting Agent)

 

June 3, 2010

2010-EB-2

2010-EB-2

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Case No.

ADJ6820138

ADJ6820197

 

 

75 Cal.Comp.Cases 634

 

 

The Appeals Board held that: (1) California Code of Regulations, title 8, section 30(d)(3) (Administrative Director Rule 30(d)(3)), which states that when a claim has been entirely denied by the defendant only the employee may request a panel of Qualified Medical Evaluators, is invalid because it conflicts with Labor Code sections 4060(c) and 4062.2 and exceeds the scope of section 5402(b); (2) the time limits of section 4062(a) for objecting to a treating physician?s medical determination do not apply when the injury has been entirely denied by the defendant; and (3) section 4062.2 does not establish timelines for initiating or completing the process for obtaining a medical-legal report on compensability.

 

 

Cynthia Blackledge

v.

Bank Of America; and

Ace American Insurance Company

 

June 3, 2010

2010-EB-1

2010-EB-1

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Case No. ADJ1735018 (LBO 0375311)

 

 

75 Cal.Comp.Cases 613

 

 

The Appeals Board held that, in the context of determining whole person impairments (WPI) and issuing formal permanent disability rating instructions, the respective roles of the physician, WCJ, and rater are as follows: (1) the physician assesses the injured employee?s whole person impairment percentage(s) by a report that sets forth facts and reasoning to support its conclusions and that comports with the AMA Guides and case law; (2) the WCJ frames rating instructions, based on substantial medical evidence, that specifically and fully describe the whole person impairment(s) to be rated; in addition, the instructions may ask the rater to offer an expert opinion on what whole person impairment(s) should or should not be rated; (3) the rater issues a recommended permanent disability rating based solely on the WCJ?s formal rating instructions; unless specifically instructed to do so, the rater has no authority to issue a rating based on the rater?s own assessment of whether the whole person impairment rating(s) referred to in the instructions are based on substantial evidence or are consistent with the AMA Guides; (4) the WCJ is not bound by the rater?s recommended permanent disability rating and may elect to independently rate an employee?s permanent disability; however, the WCJ?s rating still must be based on substantial evidence; (5) potential AMA Guides rating problems may be minimized by the early and proper use of non-formal ratings; and (6) there must be no ex parte communication between the WCJ and the assigned rater.

 

 

2009 en banc decisions

Jesus Cervantes

v.

El Aguila Food Products, Inc.;

Safeco Insurance Co. of Illinois;

Superior National Insurance Co., In

Liquidation; California Insurance

Guarantee Association; and

Broadspire (Servicing Facility),

November 19, 2009

2009-EB-10

2009-EB-10

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Case No.

ADJ3675309 (SAL 0081669)

ADJ2967795 (SAL 0101259)

ADJ3517685 (SAL 0077391)

ADJ1962561 (SAL 0077392)

 

 

74 Cal.Comp.Cases 1336

 

 

The Appeals Board held that the procedures and timelines governing objections to a treating physician's recommendation for spinal surgery are contained in Labor Code sections 4610 and 4062 and in Administrative Director (AD) Rules 9788.1, 9788.11, and 9792.6(o) and are as follows: (1) when a treating physician recommends spinal surgery, a defendant must undertake utilization review (UR); (2) if UR approves the requested spinal surgery, or if the defendant fails to timely complete UR, the defendant must authorize the surgery; (3) if UR denies the spinal surgery request, the defendant may object under section 4062(b), but any objection must comply with AD Rule 9788.1 and use the form required by AD Rule 9788.11; (4) the defendant must complete its UR process within 10 days of its receipt of the treating physician's report, which must comply with AD Rule 9792.6(o), and, if UR denies the requested surgery, any section 4062(b) objection must be made within that same 10-day period; and (5) if the defendant fails to meet the 10-day timelines or comply with AD Rules 9788.1 and 9788.11, the defendant loses its right to a second opinion report and it must authorize the spinal surgery.

The Appeals Board also disapproved of Brasher v. Nationwide Studio Fund (2006) 71 Cal.Comp.Cases 1282 (Appeals Board significant panel decision) (Brasher) to the extent it holds: (1) a defendant may opt out of UR and instead dispute the requested spinal surgery using only the procedure specified in section 4062(b); and (2) if a defendant's UR denies spinal surgery, it is the employee that must object under section 4062(a).

 

 

Wanda Ogilvie

v.

City and County of San Francisco,

Permissibly Self-Insured

September 3, 2009

2009-EB-9

2009-EB-9

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Case No. ADJ1177048 (SFO 0487779)

 

 

74 Cal. Comp. Cases 1127

 

 

After granting reconsideration of its prior decision in this matter the Appeals Board clarified the decision and held: (1) the language of section 4660(c), which provides that "the schedule … shall be prima facie evidence of the percentage of permanent disability to be attributed to each injury covered by the schedule," unambiguously means that a permanent disability rating established by the Schedule is rebuttable; (2) the burden of rebutting a scheduled permanent disability rating rests with the party disputing that rating; and (3) one method of rebutting a scheduled permanent disability rating is to successfully challenge one of the component elements of that rating, such as the injured employee's DFEC adjustment factor, which may be accomplished by establishing that an individualized adjustment factor most accurately reflects the injured employee's DFEC.

The Appeals Board stated further that the individualized DFEC adjustment factor must be consistent with section 4660(b)(2), the RAND data to which section 4660(b)(2) refers, and the numeric formula adopted by the Administrative Director (AD) in the 2005 Schedule, and it also must constitute substantial evidence that the Workers' Compensation Appeals Board (WCAB) determines is sufficient to overcome the DFEC adjustment factor component of the scheduled permanent disability rating. Otherwise, the prior decision was affirmed.

 

 

Mario Almaraz

v.

Environmental Recovery Services (aka Enviroserve);

State Compensation Insurance Fund

-and-

Joyce Guzman

v.

Milpitas Unified School District, Permissibly Self-Insured;

Keenan & Associates

September 3, 2009

2009-EB-8

2009-EB-8

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Case No.

ADJ1078163 (BAK 0145426) - Mario Almaraz

ADJ3341185 (SJO 0254688) - Joyce Guzman

 

 

74 Cal. Comp. Cases 1084

 

 

After granting reconsideration of its prior decision in this matter the Appeals Board clarified and modified the decision to hold: (1) the language of Labor Code section 4660(c), which provides that "the schedule … shall be prima facie evidence of the percentage of permanent disability to be attributed to each injury covered by the schedule," unambiguously means that a permanent disability rating established by the Schedule is rebuttable; (2) the burden of rebutting a scheduled permanent disability rating rests with the party disputing that rating; (3) one method of rebutting a scheduled permanent disability rating is to successfully challenge one of the component elements of that rating, such as the injured employee's whole person impairment (WPI) under the AMA Guides; and (4) when determining an injured employee's WPI, it is not permissible to go outside the four corners of the AMA Guides; however, a physician may utilize any chapter, table, or method in the AMA Guides that most accurately reflects the injured employee's impairment.

The Appeals Board stated further that in light of these holdings, it now specifically rejects the "inequitable, disproportionate, and not a fair and accurate measure of the employee's permanent disability" standard set forth in its February 3, 2009 opinion.

 

 

Lawrence Weiner

v.

Ralphs Company, Permissibly Self-Insured; and Sedgwick Claims Management Services, Inc. (Adjusting Agent)

August 17, 2009

2009-EB-7

2009-EB-7

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Case No. ADJ347040 (MON 0305426)

 

 

74 Cal. Comp. Cases 958

 

 

The Appeals Board denied applicant's petition for reconsideration of its en banc opinion of June 11, 2009.

 

 

Lawrence Weiner

v.

Ralphs Company, Permissibly Self-Insured; and Sedgwick Claims Management Services, Inc. (Adjusting Agent)

June 11, 2009

2009-EB-6

2009-EB-6

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Case No. ADJ347040 (MON 0305426)

 

 

74 Cal. Comp. Cases 736

 

 

The Appeals Board held that: (1) the repeal of section 139.5 terminated any rights to vocational rehabilitation benefits or services pursuant to orders or awards that were not final before January 1, 2009; (2) a saving clause was not adopted to protect vocational rehabilitation rights in cases still pending on or after January 1, 2009; (3) the vocational rehabilitation statutes that were repealed in 2003 do not continue to function as ?ghost statutes? on or after January 1, 2009; (4) effective January 1, 2009, the WCAB lost jurisdiction over non-vested and inchoate vocational rehabilitation claims, but the WCAB continues to have jurisdiction under sections 5502(b)(3) and 5803 to enforce or terminate vested rights; and (5) subject matter jurisdiction over non-vested and inchoate vocational rehabilitation claims cannot be conferred by waiver, estoppel, stipulation, or consent.

 

 

Lawrence Weiner

v.

Ralphs Company, Permissibly Self-Insured; and Sedgwick Claims Management Services, Inc. (Adjusting Agent)

April 14, 2009

2009-EB-5

2009-EB-5

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Case No. ADJ347040 (MON 0305426)

 

 

74 Cal. Comp. Cases 484

 

 

The Appeals Board designated this case, which had already been granted for study as a panel decision, as an en banc case, and issued a decision allowing amicus curiae briefing from interested persons or entities on the issue of whether the WCAB has jurisdiction to award vocational rehabilitation benefits after the January 1, 2009 repeal of Labor Code section 139.5. Following the briefing time allowed in the decision the Appeals Board will issue a Decision After Reconsideration on the issue.

 

 

Wanda Ogilvie

v.

City and County of San Francisco,

Permissibly Self-Insured

April 6, 2009

2009-EB-4

2009-EB-4

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Case No. ADJ1177048 (SFO 0487779)

 

 

74 Cal. Comp. Cases 478

 

 

The Appeals Board granted reconsideration of its prior en banc decision in order to allow further briefing by the parties and to allow amicus curiae briefing from other interested persons or entities with regard to how the 2005 Permanent Disability Rating Schedule may be rebutted. Following the briefing time allowed in the decision the Appeals Board will issue a Decision After Reconsideration modifying, amending, or affirming the prior decision.

 

 

Mario Almaraz

v.

Environmental Recovery Services (aka Enviroserve);

State Compensation Insurance Fund

-and-

Joyce Guzman

v.

Milpitas Unified School District, Permissibly Self-Insured;

Keenan & Associates

April 6, 2009

2009-EB-3

2009-EB-3

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Case No.

ADJ1078163 (BAK 0145426) - Mario Almaraz

ADJ3341185 (SJO 0254688) - Joyce Guzman

 

 

74 Cal. Comp. Cases 470

 

 

The Appeals Board granted reconsideration of its prior en banc decision in order to allow further briefing by the parties and to allow amicus curiae briefing from other interested persons or entities with regard to how the 2005 Permanent Disability Rating Schedule may be rebutted. Following the briefing time allowed in the decisions the Appeals Board will issue a Decision After Reconsideration modifying, amending, or affirming the prior decision.

 

 

Wanda Ogilvie

v.

City and County of San Francisco,

Permissibly Self-Insured

February 3, 2009

2009-EB-2

2009-EB-2

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Case No. ADJ1177048 (SFO 0487779)

 

 

74 Cal. Comp. Cases 248

 

 

The Appeals Board held in substance that: (1) the Diminished Future Earnings Capacity (DFEC) portion of the 2005 Schedule is rebuttable; (2) the DFEC portion of the 2005 Schedule ordinarily is not rebutted by establishing the percentage to which an injured employee's future earning capacity has been diminished; (3) the DFEC portion of the 2005 Schedule is not rebutted by taking two-thirds of the injured employee's estimated diminished future earnings and then comparing the resulting sum to the permanent disability money chart to approximate a corresponding permanent disability rating; and (4) in the usual case, the DFEC portion of the 2005 Schedule may be rebutted only in a manner consistent with Labor Code section 4660 - including section 4660(b)(2) and the RAND data to which section 4660(b)(2) refers.

This holding involves the application or interpretation of Labor Code section 4660(c), which continues to state: "This schedule…shall be prima facie evidence of the percentage of permanent disability…." The Appeals Board has previously held in prior en banc decisions in Costa I (71 Cal.Comp.Cases 1797) and Costa II (72 Cal.Comp.Cases 1492) that, pursuant to this section and case law, the percentage of disability resulting from the 2005 Permanent Disability Rating Schedule is rebuttable. This decision discusses how the DFEC portion of the schedule can be rebutted.

 

 

Mario Almaraz

v.

Environmental Recovery Services (aka Enviroserve);

State Compensation Insurance Fund

-and-

Joyce Guzman

v.

Milpitas Unified School District, Permissibly Self-Insured;

Keenan & Associates

February 3, 2009

2009-EB-1

2009-EB-1

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Case No.

ADJ1078163 (BAK 0145426) - Mario Almaraz

ADJ3341185 (SJO 0254688) - Joyce Guzman

 

 

74 Cal. Comp. Cases 201

 

 

The Appeals Board held in substance that: (1) the American Medical Association (AMA) Guides portion of the 2005 Schedule is rebuttable; (2) the AMA Guides portion of the 2005 Schedule is rebutted by showing that an impairment rating based on the AMA Guides would result in a permanent disability award that would be inequitable, disproportionate, and not a fair and accurate measure of the employee's permanent disability; and (3) when an impairment rating based on the AMA Guides has been rebutted, the WCAB may make an impairment determination that considers medical opinions that are not based or are only partially based on the AMA Guides.

This holding involves the application or interpretation of Labor Code section 4660(c), which continues to state: "This schedule … shall be prima facie evidence of the percentage of permanent disability…." The Appeals Board has previously held in prior en banc decisions in Costa I (71 Cal.Comp.Cases 1797) and Costa II (72 Cal.Comp.Cases 1492) that, pursuant to this section and case law, the percentage of disability resulting from the 2005 Permanent Disability Rating Schedule is rebuttable. This decision discusses how the AMA Guides portion of the schedule can be rebutted.

 

 

2008 en banc decisions

Maria Tapia

v.

Skill Master Staffing; and

Liberty Mutual Insurance Company,

SB Surgery Center

 

September 17, 2008

2008-EB-4

2008-EB-4

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Case No. ADJ 4564224 (LBO 0322121)

 

 

73 Cal. Comp. Cases 1338

 

 

The Appeals Board held that consistent with its en banc decision in Kunz v. Patterson Floor Coverings, Inc. (2002) 67 Cal.Comp.Cases 1588: (1) an outpatient surgery center lien claimant (or any medical lien claimant) has the burden of proving that its charges are reasonable; (2) the outpatient surgery center lien claimant?s billing, by itself, does not establish that the claimed fee is ?reasonable?; therefore, even in the absence of rebuttal evidence, the lien need not be allowed in full if it is unreasonable on its face; and (3) any evidence relevant to reasonableness may be offered to support or rebut the lien; therefore, evidence is not limited to the fees accepted by other outpatient surgery centers in the same geographic area for the services provided.

 

 

Dee Anne Ramirez

v.

Drive Financial Services; and One Beacon Insurance Co.

 

September 9, 2008

2008-EB-3

2008-EB-3

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(WCAB No. ADJ4579659 (AHM 0089109))

 

 

73 Cal. Comp. Cases 1324

 

 

The Appeals Board held: (1) that the amount of the penalty under Labor Code section 5814(a) is discretionary and should be determined upon consideration of the factors enumerated in this opinion; (2) that although, under new section 5814(a), a successive penalty may still be awarded for an unreasonable delay in making a prior penalty payment, it should not be awarded where the defendant had genuine doubt as to its liability or where there is no legally significant intervening event; (3) that, if an unreasonable delay in payment of an award of compensation occurred after January 1, 2003, section 5814.5 entitles an applicant?s attorney to receive fees for enforcing the award, even against a private employer and even when the injury occurred prior to January 1, 2003, the effective date of the amendment to section 5814.5; and (4) that such fees are to be awarded ?in addition to? applicant?s section 5814(a) penalty - not as a percentage of the penalty - and are to be based on the reasonable number of hours expended and a reasonable hourly rate.

 

 

In Re the Matter of

Ramon B. Pellicer

 

July 8, 2008

2008-EB-2

2008-EB-2

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Case No. (WCAB No. MISC. 251)

 

 

73 Cal. Comp. Cases 1065

 

 

The Board denied Mr. Pellicer's request for permission to appear in Workers' Compensation Appeals Board proceedings under WCAB Rule 10799 (Cal. Code Regs., tit. 8, sec. 10799) because he was suspended and placed on involuntary inactive enrollment from the practice of law by the State Bar, and because such persons, as well as those who have been disbarred or suspended, or who have resigned with disciplinary proceedings pending, may not be allowed to appear on behalf of another in judicial or quasi-judicial hearings and proceedings before administrative boards and commissions, pursuant to Benninghoff v. Superior Court (2006) 136 Cal.App.4th 61 [38 Cal.Rptr.3rd 759] and In the Matter of John H. Hoffman, Jr. (2006) 71 Cal. Comp. Cases 609, Appeals Bd. Sig. Panel Decision.

 

 

 

Scott Boughner

v.

CompUSA, Inc.: and

Zurich North America

 

June 2, 2008

2008-EB-1

2008-EB-1

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Case No. (WCAB No. SFO 0491230)

 

 

73 Cal. Comp. Cases 854

 

 

The Board held that the applicant did not carry his burden of demonstrating that the adoption of the 2005 Permanent Disability Rating Schedule (PDRS) by the Administrative Director of the Division of Workers' Compensation was arbitrary or capricious, or inconsistent with Labor Code section 4660(b)(2), and therefore that he failed to rebut the presumptive validity of the 2005 PDRS.

 

 

2007 en banc decisions

Dianne Benson,

v.

The Permanente Medical Group,

Permissibly Self-Insured; Athens Administrators (Adjusting Agent),

December 13, 2007

2007-EB-9

2007-EB-9

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Case No. (WCAB No. OAK 0297895 & OAK 0326228)

 

 

72 Cal. Comp. Cases 1620

 

 

The Board held that the rule in Wilkinson, (i.e., basically allowing a combined award of permanent disability in successive injury cases,) is not consistent with the new requirement that apportionment be based on causation and that, therefore, Wilkinson is no longer generally applicable. The Board must determine and apportion to the cause of disability for each industrial injury. The Board noted that consideration must be given to all potential causes of disability, whether from a current industrial injury, a prior or subsequent industrial injury, or a prior or subsequent non-industrial injury or condition. It was observed, however, that there may be limited circumstances, not present in these cases, where the evaluating physicians cannot parcel out, with reasonable medical probability, the approximate percentages to which each successive injury causally contributed to the employee's overall permanent disability. Under those limited circumstances, a combined award of permanent disability may still be justified.

The holding as applied in these cases resulted in separate awards of permanent disability. This opinion involved an interpretation of Labor Code §§4663 and 4664(a) as enacted under SB 899 and the impact on prior legal principles.

 

 

 

Joey M. Costa,

v.

Hardy Diagnostic and State Compensation Insurance Fund,

November 13, 2007

2007-EB-8

2007-EB-8

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Case No. (WCAB No. GRO 0031810)

 

 

72 Cal. Comp. Cases 1492

 

 

The Board reaffirmed its prior holding that Labor Code §4660 continues to allow the parties to present evidence on and/or in rebuttal to a permanent disability rating under the new PDRS, and that the costs of such evidence may be allowable. Additionally, the Board noted that the standards for allowing such cases will be by analogy to medical-legal costs - whether such costs are reasonable and necessary at the time they are incurred.

 

 

Paul Cruz,

v.

Mercedes-Benz of San Francisco, and Auto Dealers Compensation of California, administered by Intercare Insurance Company,

September 5, 2007

2007-EB-7

2007-EB-7

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Case No. (WCAB No. SFO 0501425)

 

 

72 Cal. Comp. Cases 1281

 

 

The Board held that the word "amputations," as used in section 4656(c)(2)(C), means the severance or removal of a limb, part of a limb, or other body appendage, including both traumatic loss in an industrial injury and surgical removal during treatment of an industrial injury. This definition conforms to our understanding of the common meaning of the term "amputation," which encompasses external projecting body parts, not internal parts, even if they include bone.

This holding involved one of the exceptions under Labor Code ?4656(c)(2), that, if triggered, would entitle an injured worker to temporary disability indemnity beyond the 104-week/two year cap set forth in Labor Code ?4656(c)(1).

 

 

Valeri Hawkins,

v.

Amberwood Products; and State Compensation Insurance fund

June 13, 2007

2007-EB-6

2007-EB-6

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Case No. (WCAB No. SAL 0107814)

 

 

72 Cal. Comp. Cases 807

 

 

The Board held that "the date of commencement of temporary disability payment" as used in section 4656(c)(1) means the date on which temporary disability indemnity is first paid, and not the date for which temporary disability indemnity is first owed.

In this case, applicant was injured on July 16, 2004. Defendant's first payment of temporary disability indemnity was made on May 3, 2005, which covered the period of TD from July 17, 2004 through May 3, 2005 and defendant then made periodic temporary disability indemnity payments through July 14, 2006. The WCJ's decision concluded that the "period of two years from the date of commencement of temporary disability payment" as provided in section 4656(c)(1) began on May 3, 2005, the date on which temporary disability indemnity was first paid, and not from July 17, 2004, the date for which temporary disability indemnity was first owed. The WCJ's decision was accordingly, affirmed.

This holding involved an interpretation of an addition to Labor Code ?4656 under SB 899.

 

 

Josh Pendergrass

v.

Duggan Plumbing and State Compensation Insurance Fund

April 6, 2007

2007-EB-5

2007-EB-5

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Case No. (WCAB No. SAL 0110868)

 

 

72 Cal. Comp. Cases 456

 

 

The Board, reversing its prior en banc decision of January 24, 2007, held that if the last payment of temporary disability indemnity was made for any period of temporary disability ending before January 1, 2005, then the 1997 Permanent Disability Rating Schedule applies to determine the extent of permanent disability, pursuant to section 4660(d), because section 4061 requires the employer to provide the injured worker with a notice regarding permanent disability "[t]together with the last payment of temporary disability indemnity."

This holding involved one of the exceptions under Labor Code section 4660(d) that, if triggered, would result in determining permanent disability in a case under the former PDRS rather than under the new PDRS effective January 1, 2005.

 

 

Joseph Baglione

v.

Hertz Car Sales and AIG, Adjusting by Cambridge Intergrated Services

April 6 , 2007

2007-EB-4

2007-EB-4

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Case No. (WCAB No. SJO 0251644 )

 

 

72 Cal. Comp. Cases 444

 

 

The Board, reversing its prior en banc decision of January 24, 2007, held that in order for the 1997 Permanent Disability Rating Schedule to apply to a pre-1/1/05 injury claim under Labor Code Section 4660(d), the existence of permanent disability must be indicated in either a pre-2005 comprehensive medical-legal report or a pre-2005 report from a treating physician.

This holding involved one of the exceptions under Labor Code section 4660(d) that, if triggered, would result in determining permanent disability in a case under the former PDRS, rather than under the new PDRS effective January 1, 2005.

 

 

Sharon Babbitt

v.

Ow Jing dba National Market; and Golden Eagle Insurance Company

January 24, 2007

2007-EB-3

2007-EB-3

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Case No. (WCAB No. STK 0174793 )

 

 

72 Cal. Comp. Cases 70

 

 

The Board held that a defendant may satisfy its obligation under Labor Code section 4600 to provide reasonable medical treatment by transferring an injured worker into an authorized Medical Provider Network in conformity with applicable statutes and regulations regardless of the date of injury or the date of an award of future medical treatment.

 

 

Joseph Baglione

v.

Hertz Car Sales and AIG, Adjusting by Cambridge Intergrated Services

January 24, 2007

2007-EB-2

2007-EB-2

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Case No. (WCAB No. SJO 0251644 )

 

 

72 Cal. Comp. Cases 86

 

 

The Board held that because a comprehensive medical-legal report issued in this case prior to January 1, 2005, the former Permanent Disability Rating Schedule (PDRS) applies under section 4660(d), whether or not the comprehensive medical-legal report indicates the existence of permanent disability.

This holding involved one of the exceptions under Labor Code section 4660(d) that, if triggered, would result in determining permanent disability in a case under the former PDRS, rather than under the new PDRS effective January 1, 2005.

 

 

Josh Pendergrass

v.

Duggan Plumbing and State Compensation Insurance Fund

 

January 24, 2007

2007-EB-1

2007-EB-1

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Case No. (WCAB No. SAL 0110868 )

 

 

72 Cal. Comp. Cases 95

 

 

The Board held that because an employer's duty to provide notice under Labor Code section 4061 arises with the first payment of temporary disability indemnity, if the first date of compensable temporary disability occurred prior to January 1, 2005, the former Permanent Disability Rating Schedule (PDRS) applies to determine the extent of permanent disability in that case.

This holding involved one of the exceptions under Labor Code section 4660(d) that, if triggered, would result in determining permanent disability in a case under the former PDRS rather than under the new PDRS effective January 1, 2005.

 

 

2006 en banc decisions

Joey M. Costa,

v.

Hardy Diagnostic and State Compensation Insurance Fund

December 7, 2006

2006-EB-6

2006-EB-6

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Case No. (WCAB No. GRO 0031810 )

 

 

71 Cal. Comp. Cases 1797

 

 

The Board held 1) that the applicant had not met his burden of proving that the new Permanent Disability Rating Schedule (PDRS) under Labor Code section 4660 was invalid, and 2) that, as under former Labor Code section 4660, current Labor Code section 4660 allows the parties to present rebuttal evidence to a proposed rating and that the costs of such rebuttal evidence may be allowable.

 

 

 

Bruce Knight,

v.

United Parcel Service; and Liberty Mutual Insurance Company

October 10, 2006

2006-EB-5

2006-EB-5

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Case No. (WCAB No. AHM 127807 AHM 129147 )

 

 

71 Cal. Comp. Cases 1423

 

 

The Board held that an employer or insurer's failure to provide required notice to an employee of rights under the MPN (medical provider network) that results in a neglect or refusal to provide reasonable medical treatment renders the employer or insurer liable for reasonable medical treatment self-procured by the employee.

In this particular case, it was determined that defendant's failure to provide applicant with notice of his rights under the MPN had resulted in a neglect or refusal to provide medical treatment rendering defendant liable for applicant's self-procured medical treatment.

 

 

Elizabeth Aldi

v.

Carr, McClellan, Ingersoll, Thompson & Horn;

Repulic Indemnity Company of America

June 21, 2006

2006-EB-4

2006-EB-4

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Case No. (WCAB No. SFO 0485703)

 

 

71 Cal. Comp. Cases 783

 

 

The Board held that the revised permanent disability rating schedule, adopted by the Administrative Director of the Division of Workers' Compensation, effective January 1, 2005, applies to injuries occurring on or after that date, and that in cases of injury occurring prior to January 1, 2005, the revised permanent disability rating schedule applies, unless one of the exceptions delineated in the third sentence of section 4660(d) is present.

The matter was returned to the trial level to consider whether any exception to the application of the revised permanent disability schedule was present based upon the facts of this case

 

 

Mark Miceli

v.

Jacuzzi, Inc.; Remedytemp, Inc.; American Home Assurance Co.; California Insurance Guarantee Association for Reliance National Indemnity Co., In Liquidation

May 12, 2006

2006-EB-2

2006-EB-2

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Judicial notice attachments and briefs

Case No. (WCAB No. POM 248928)

 

 

71 Cal. Comp. Cases 599

 

 

Consistent with the opinion of the Court of Appeal, the Board found that the special employer's insurance in this case is not "other insurance" available to applicant within the meaning of Insurance Code section 1063.1(c)(9). Accordingly, the California Insurance Guarantee Association's (CIGA) dismissal as a party was set aside and CIGA remained a party with potential liability for covered claims.

The Board also concluded:

1. Our en banc decision in this case was reversed by the Court of Appeal and for that reason it is not legal precedent. In addition, the unpublished Court of Appeal decision in this case may not be generally cited or relied upon in any other action, except when relevant under the doctrines of law of the case, res judicata or collateral estoppel;

2. The May 14, 2002 consolidation and stay order was only intended to apply during the pendency of the appellate proceedings in this case and it is now rescinded so that each case covered by that order may be individually resolved on its own particular facts;

3. The request by RemedyTemp to be dismissed from each of the consolidated cases is denied because the consolidation order no longer applies and there is no authority to support dismissal because the Court of Appeal decision was decertified for publication by the Supreme Court.

4. The joint request by RemedyTemp and CIGA for a new consolidation and/or stay order is denied because each case must be evaluated on its own facts, including consideration of the intent of the parties and the effect of the various insurance policies involved;

5. The petition filed by Assurance for reimbursement of costs it claims to have incurred in the Court of Appeal proceeding is dismissed."

 

 

Myrtle Vargas

v.

Atascadero State Hospital, Legally Uninsured; and

State Compensation Insurance Fund (Adjusting Agent)

April 11, 2006

2006-EB-3

2006-EB-3

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Case No. (WCAB No. GRO 0016640)

 

 

71 Cal. Comp. Cases 500

 

 

In denying the applicant's Petition for Removal which sought, in essence, to preclude the application of the new apportionment statutes under SB 899, the Board held:

(1) The new apportionment provisions of SB 899 apply to the issue of increased permanent disability alleged in any petition to reopen (see sections 5803, 5804, 5410) that was pending at the time of the legislative enactment on April 19, 2004, regardless of date of injury;

(2) Consistent with Section 47 of SB 899, the new apportionment statutes cannot be used to revisit or recalculate the level of permanent disability, or the presence or absence of apportionment, determined under a final order, decision, or award issued before April 19, 2004; and

(3) In applying the new apportionment provisions to the issue of increased permanent disability, the issue must be determined without reference to how, or if, apportionment was determined in the original award.

 

 

Eric Pasquotto

v.

Hayward Lumber; Connecticut Indemnity Insurance Company; and Athens Administrators (Adjusting Agent),

February 27, 2006

2006-EB-1

2006-EB-1

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Case No. (WCAB No. GRO 0028123 GRO 0028394)

 

 

71 Cal. Comp. Cases 223

 

 

(1) An order approving a compromise and release agreement, without more, is not a "prior award of permanent disability" within the meaning of section 4664(b);

(2) Where there is no "prior award of permanent disability" within the meaning of section 4664(b), the medical reports and other evidence relating to a prior industrial injury that was settled by a compromise and release still may be relevant in determining whether any of the permanent disability found after a subsequent industrial injury was caused by "other factors" under section 4663; and

(3) The concept of medical rehabilitation from a prior industrial disability remains viable under section 4663; however, even if an injured employee has medically rehabilitated from a prior industrial disability, this does not necessarily preclude a prior industrial injury from being an "other factor" causing the employee's present disability.

 

 

2005 en banc decision

Virginia Sanchez

v.

County of Los Angeles Permissibly Self-insured; and Tristar Risk Management (Adjusting Agent),

October 26, 2005

2005-EB-8

2005-EB-8

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Case No. (WCAB No. MON 307506)

 

 

70 Cal. Comp. Cases 1440

 

 

The Board held that:

(1) Where an employee suffers an industrial injury causing permanent disability, and where there is a prior award of permanent disability relating to the same region of the body, section 4664 requires the apportionment of overlapping permanent disabilities;

(2) The defendant has the burden of proving the existence of any prior permanent disability award(s) relating to the same region of the body;

(3) When the defendant has established the existence of any prior permanent disability award(s) relating to the same body region, the permanent disability underlying any such award(s) is conclusively presumed to still exist, i.e., the applicant is not permitted to show medical rehabilitation from the disabling effects of the earlier industrial injury or injuries;

(4) When the defendant has established the existence of any prior permanent disability award(s) relating to the same region of the body, the percentage of permanent disability from the prior award(s) will be subtracted from the current overall percentage of permanent disability, unless the applicant disproves overlap, i.e., the applicant demonstrates that the prior permanent disability and the current permanent disability affect different abilities to compete and earn, either in whole or in part;

(5) The issue of whether the prior permanent disability for the same region of the body overlaps the current disability is determined using substantially the same principles that were applied prior to the enactment of section 4664; and

(6) The sum of the permanent disability awards for any one body region cannot exceed 100%, even where the permanent disability caused by the applicant's new injury does not overlap the permanent disability underlying the prior award(s), unless the employee's new industrial injury causes disability that is conclusively presumed to be total under section 4662.

 

 

Jack C. Strong

v.

City and County of San Francisco, Permissibly Self-insured,

October 26, 2005

2005-EB-7

2005-EB-7

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Case No. (WCAB No. SFO 0479038)

 

 

70 Cal. Comp. Cases 1460

 

 

The Board held that:

(1) Where an employee suffers an industrial injury causing permanent disability to one region of the body, and where there is a prior award of permanent disability involving and/or including any other region(s) of the body, section 4664 requires the apportionment of overlapping permanent disabilities;

(2) The defendant has the burden of proving the existence of any prior permanent disability award(s) involving and/or including any other region(s) of the body;

(3) When the defendant has established the existence of any prior permanent disability award(s) involving and/or including any other region(s) of the body, the permanent disability underlying any such award(s) is conclusively presumed to still exist, i.e., the applicant is not permitted to show medical rehabilitation from the disabling effects of the earlier industrial injury or injuries;

(4) When the defendant has established the existence of any prior permanent disability award(s) involving and/or including any other region(s) of the body, the percentage of permanent disability from the prior award(s) will be subtracted from the percentage of permanent disability for the body region of the most recent injury, unless the applicant disproves overlap, i.e., the applicant demonstrates that the prior permanent disability and the current permanent disability affect different abilities to compete and earn, either in whole or in part; and

(5) The issue of whether the prior permanent disability for a different region of the body overlaps the current disability is determined using substantially the same principles that were applied prior to the enactment of section 4664.

 

 

 

 

Lisa Simmons

vs.

State of California, Dept of Mental Health (Metropolitan State Hospital), Legally Uninsured; and State Compensation Insurance Fund (Adjusting Agent),

June 17, 2005

2005-EB-6

2005-EB-6

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Case No. (WCAB No. LBO 0340807)

 

 

70 Cal. Comp. Cases 866

 

 

With regard to Utilization Review, the Appeals Board held:

(1) If a defendant undertakes utilization review to determine whether a proposed treatment is medically necessary, and if the utilization review physician finds that the treatment is medically necessary but raises questions as to whether the treatment is industrially-related, the utilization review report is admissible in evidence for the limited purposes of establishing: (a) utilization review was undertaken and the date(s) of the utilization review physician's report(s); (b) the utilization review physician found the proposed treatment to be medically necessary; and (c) the utilization review process has resulted in a dispute as to whether the industrial injury caused or contributed to the need for the treatment;

(2) A utilization review physician finds that a treatment is medically necessary but questions whether the need for that treatment is causally related to the industrial injury, the defendant must either: (a) authorize the treatment; or (b) timely deny authorization based on causation within the deadlines set forth in section 4610(g)(1); timely communicate the denial based on causation to both the treating physician and the applicant within the deadlines set forth in section 4610(g)(3)(A); and timely initiate the AME/QME process within 20 days of the receipt of the utilization of physician's report, if the employee is represented by an attorney, or 30 days, if the employee is unrepresented, in accordance with section 4062(a)*; and

(4) Although the ACOEM guidelines are "presumptively correct on the issue of extent and scope of medical treatment" (Lab.Code 4604.5(c), they are not presumptively correct on the issue of whether a need for medical treatment is causally related to the industrial injury.

* In reaching this holding, we are not addressing any issues relating to proposed spinal surgery under sections 4610(g)(3)(A) & (B) and 4062(b).

 

 

 

Danny Nabors

vs.

Piedmont Lumber & Mill Co.,

June 9, 2005

2005-EB-5

2005-EB-5

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Case No. (WCAB No. SRO 122159 SRO 0113249)

 

 

70 Cal. Comp. Cases 856

 

 

The Board held that when the Workers' Compensation Appeals Board awards permanent disability after apportionment, the amount of indemnity due applicant is calculated by determining the overall percentage of permanent disability and then subtracting the percentage of permanent disability caused by other factors under section 4663(c) or previously awarded under section 4664(b); the remainder is applicant's final percentage of permanent disability for which indemnity is calculated pursuant to section 4453 and 4658.

 

 

 

Marlene Escobedo,

vs.

Marshalls; and CNA Insurance Co.,

April 19, 2005

2005-EB-4

2005-EB-4

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Case No. (WCAB No. GRO 0029816 GRO 0029817)

 

 

70 Cal. Comp. Cases 604

 

 

1) Section 4663(a)'s statement that the apportionment of permanent disability shall be based on "causation" refers to the causation of the permanent disability, not causation of the injury, and the analysis of the causal factors of permanent disability for purposes of apportionment may be different from the analysis of the causal factors of the injury itself.

2) Section 4663(c) not only prescribes what determinations a reporting physician must make with respect to apportionment, it also prescribes what standards the WCAB must use in deciding apportionment; that is, both a reporting physician and the WCAB must make determinations of what percentage of the permanent disability was directly caused by the industrial injury and what percentage was caused by other factors.

3) Under section 4663, the applicant has the burden of establishing the percentage of permanent disability directly caused by the industrial injury, and the defendant has the burden of establishing the percentage of disability caused by other factors. 4) Apportionment of permanent disability caused by "other factors both before and subsequent to the industrial injury, including prior industrial injuries," may include not only disability that could have been apportioned prior to SB 899, but it also may include disability that formerly could not have been apportioned (e.g., pathology, asymptomatic prior conditions, and retroactive prophylactic work preclusions), provided there is substantial medical evidence establishing that these other factors have caused permanent disability.

5) Even where a medical report "addresses" the issue of causation of the permanent disability and makes an "apportionment determination" by finding the approximate relative percentages of industrial and non-industrial causation under section 4663(a), the report may not be relied upon unless it also constitutes substantial evidence.

 

 

Terry Martinez

vs.

California Building Systems

February 22, 2005

2005-EB-3

2005-EB-3

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Case No. (WCAB No. FRE 0194847)

 

 

70 Cal. Comp. Cases 202

 

 

The Board held that the repeal of the treating physician presumption under Labor Code 4062.9 applies to all cases, regardless of the date of injury, unless a decision has become final on or before April 19, 2004.

The Board defined "final" as a decision where appellate rights have been exhausted prior to April 19, 2004.

 

 

Brice Sandhagen

vs.

Cox & Cox Construction, Inc.

February 7, 2005

2005-EB-1

2005-EB-1

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Case No. (WCAB No. RDG 0115958)

 

 

70 Cal. Comp. Cases 208

 

 

The Board dismissed the applicant's Petition for Reconsideration as not being filed from a "final order" (see Board's en banc decision of November 16, 2004). The Board also observed that while the establishment of a utilization review process was mandatory under Labor Code section 4610, the use of that process in every case was not mandatory and not, in effect, a condition precedent to the use of Labor Code section 4062.

 

 

Marilyn Simi

vs.

Sav-Max Foods, Inc

February 1, 2005

2005-EB-2

2005-EB-2

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Case No. (WCAB No. SAC 323226)

 

 

70 Cal. Comp. Cases 217

 

 

The Board held that for injuries occurring prior to January 1, 2005, section 4062, as it existed before its amendment by SB 899, continues to provide the procedure by which Agreed Medical Evaluation (AME) and QME medical-legal reports are obtained in cases involving represented employees.

 

 

2004 en banc decisions

Michael A. Willette

vs.

Au Electric Corporation

December 16, 2004

2004-EB-9

2004-EB-9

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(WCAB No. SJO 245781)

 

 

69 Cal. Comp. Cases 1563

 

 

The Board dismissed the applicant's Petition for Reconsideration as not being filed from a "final" order. (See Board's en banc decision of October 5, 2004).

 

 

Myron Abney

vs.

Aera Energy

December 8, 2004

2004-EB-8

2004-EB-8

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Case No. (WCAB No. GRO 024430)

 

 

69 Cal. Comp. Cases 1552

 

 

The Board held that section 5814, as enacted by SB 899 and operative June 1, 2004, applies to unreasonable delays or refusals to pay compensation that occur prior to the operative date where the finding of unreasonable delay is made on or after June 1, 2004. The Board also concluded that section 5814(c), involving the conclusive presumption of the resolution of accrued penalty claims, applies as of the June 1, 2004 operative date of section 5814, and that the statute of limitations set forth in section 5814(g) applies to actions to recover penalties brought on or after the June 1, 2004 operative date.

 

 

Brice Sandhagen

vs.

Cox & Cox Construction, Inc.

November 16, 2004

2004-EB-7

2004-EB-7

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Case No. (WCAB No. RDG 115958)

 

 

69 Cal. Comp. Cases 1452

 

 

1) The utilization review time deadlines of section 4610(g)(1) are mandatory and, if a defendant fails to meet these mandatory deadline, it is precluded from using the utilization review procedure fro the particular medical treatment dispute in question;

2) If a defendant undertakes an untimely utilization review procedure, any utilization review report obtained as to the particular treatment in dispute is not admissible in evidence, and any utilization review report obtained cannot be forwarded to an AME or QME if section 4062(a) procedures are timely pursued; and;

3) When a defendant does not meet the section 4610(g)(1) deadlines, it may use the procedure established by section 4062(a) to dispute the treating physician's treatment recommendation; however, the defendant (not the applicant) is then the "objecting party" and the defendant must meet the section 4062(a) deadlines, unless those deadlines are extended for good cause or by mutual agreement.

 

 

Michael A. Willette

vs.

AU Electric Corporation; and State Compensation Insurance Fund

October 5, 2004

2004-EB-6

2004-EB-6

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Case No. (WCAB No. SJO 0245781)

 

 

69 Cal. Comp. Cases 1298

 

 

(1) If an employer's utilization review physician does not approve an employee's treating physician's treatment authorization request in full, then an unrepresented employee (if he or she desires to dispute the utilization review physician's determination) must timely object, and then a panel qualified medical examiner ("QME") must be obtained to resolve the disputed treatment issue(s);

(2) Once the panel QME's evaluation has been obtained, neither the treating physician nor the utilization review physician may issue any further reports addressing the post-utilization review treatment dispute;

(3) The panel QME should ordinarily be provided with and consider both the reports of the treating physician and the utilization review physician regarding the disputed issues;

(4) If a post-utilization review medical treatment dispute goes to trial after the panel QME issues his or her report, both the treating physician's and the utilization review physician's reports are admissible in evidence;

(5) When a WCJ or the Appeals Board issues a decision on a post-utilization review medical treatment dispute, the reports of the panel QME, the treating physician, and the utilization review physician will all be considered, but none of them is necessarily determinative.

 

 

 

Jenelle Scheftner

vs

Rio Linda School District

October 4, 2004

2004-EB-5

2004-EB-5

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Case No. (WCAB No. SAC 326274)

 

 

69 Cal. Comp. Cases 1281

 

 

The majority opinion of the Board held that submission orders and orders closing discovery, that issued prior to the enactment of SB 899 on April 19, 2004, are "existing" orders that cannot be reopened due to the prohibition set forth in Section 47. The majority opinion also held that absent existing orders as so defined the amendments, additions, or repeals of SB 899 apply prospectively on or after April 19, 2004, to all cases, regardless of the date of injury, unless otherwise specified in SB 899.

There were also a concurring and dissenting opinion and a dissenting opinion.

 

 

 

James L. Leinon

vs.

Fishermen's Grotto

August 25, 2004

2004-EB-4

2004-EB-4

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Case No. (WCAB No. WCK 45264)

 

 

69 Cal. Comp. Cases 995

 

 

NOTE: The Board held that where injury, disability or indemnity rate is disputed, no section 4650(d) penalty arises if the disputed disability indemnity payments are made within 14 days of a final order, decision or award imposing liability for those benefits or within 14 days of a defendant's acceptance of liability for the injury and disability benefits. The Board also held that an order, decision or award becomes final for purposes of section 4650(d) when a defendant has exhausted all of its appellate rights or has not pursued them.

 

 

Jose L. Martinez

vs.

Jack Neal & Sons, Inc.

July 27, 2004

2004-EB-3

2004-EB-3

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Case No. (WCAB No. SRO 107686)

 

 

69 Cal.Comp.Cases 775

 

 

NOTE: The board concluded that with respect to any award issued after 2003, CIGA may not be held liable for any section 5814 (or 5814.5) penalties based on an insolvent insurer's pre-liquidation unreasonable delay or refusal in paying benefits because such penalties are now excluded under Insurance Code section 1063.1(c)(8) as amended effective 1/1/04.

 

 

Jeannie Karaiskos

vs.

Metagenics, Inc.

July 27, 2004

2004-EB-2

2004-EB-2

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Case No. (WCAB No. AHM 70712)

 

 

69 Cal.Comp.Cases 772

 

 

NOTE: The Board concluded, consistent with the Court of Appeal's decision, that CIGA is not required to pay the lien of EDD.

 

 

Daniel Milbauer

vs.

Erez Boostan

March 10, 2004

2004-EB-1

2004-EB-1

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Case No. (WCAB No. LAO 722567)

 

 

69 Cal.Comp.Cases 246

 

 

NOTE: The board dismissed the UEF's second petition for reconsideration on the basis (1) that UEF was not aggrieved or newly aggrieved; (2) that the portion of the decision (i.e., procedures) from which UEF sought reconsideration was not "final" for reconsideration purposes; and (3) that the petition is successive on the issue of the employer's correct legal identity.

 

 

2003 en banc decisions

Daniel Milbauer

vs.

Erez Boostan

December 18, 2003

2003-EB-5

2003-EB-5

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Case No. (WCAB No. LAO 722567)

 

 

68 Cal.Comp.Cases 1834

 

 

NOTE: The Board concluded that UEF's petition for reconsideration regarding the correct legal identity of the employer was without merit because the correct legal identity of the employer as found by the WCJ in her decision served May 8, 2003, was supported by substantial evidence and because UEF had offered no contrary evidence (either at trial or on reconsideration).

The Board also concluded that following the filing of an Application of Adjudication of Claim ("application"), and as soon as an applicant determines that the employer is or may be uninsured and has made a good faith effort to determine the correct legal identity of the employer, UEF may be ordered to appear provisionally at proceedings and ordered to assist in determining the correct legal identity of the employer pursuant to section 3716(d)(4). The Board announced several procedures intended to obtain the early and active participation of UEF when either the employee has difficulty in establishing the correct legal identity of the employer after good faith efforts, or when UEF objects to the correct legal identity of the employer as asserted by the employee.

 

 

Walter Faust

vs.

City of San Diego

December 11, 2003

2003-EB-4

2003-EB-4

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Case No. (WCAB No. SDO 244774)

 

 

68 Cal.Comp.Cases 1822

 

 

NOTE: The board held that under section 3212.1, as amended in 1999, when an applicant establishes both exposure to a known carcinogen and the manifestation or development of cancer as the section specifies, the cancer is presumed to be an industrial injury. The burden then shifts to the defendant to rebut the presumption (1) by evidence establishing the primary site of the cancer and (2) by evidence establishing that there is no reasonable link between the carcinogen and the cancer. The defendant must prove that no reasonable link exists; it does not rebut the presumption by merely proving that there is no evidence demonstrating a reasonable link.

 

 

Clarence A. Pebworth

vs.

Allan Hancock College,

Permissibly Self-Insured; and Workers' Compensation Administrators

(Third PartyAdministrators)

August 8, 2003

2003-EB-3

2003-EB-3

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Case No. (WCAB No. GRO 023699)

 

 

68 Cal.Comp.Cases 1168

 

 

NOTE: The Board held that the amendments to section 4646, which permit a defendant and a represented employee to settle prospective vocational rehabilitation services under specified circumstances, cannot be applied to injuries sustained before the January 1, 2003 effective date of the amendments because the amendments are substantive, not procedural, and because there is no clear indication that the Legislature as a whole intended that the amendments operate retrospectively.

 

 

Victoria Gomez

vs.

Casa Sandoval; Golden Eagle Insurance Company; California Compensation (in liquidation); California Insurance Guarantee Association; Risk Enterprise Management

Carol Nokes

Placer Savings Bank; Fremont Compensation Insurance Company; Paula Insurance Company (in liquidation); California Insurance Guarantee Association;

May 27, 2003

2003-EB-2

2003-EB-2

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Case No. (WCAB No. OAK 234515; OAK 239085; AK 240882)

 

 

68 Cal.Comp.Cases 753

 

 

NOTE: The Board in substance (1) described circumstances where CIGA will be relieved of liability as well as remain liable in a single cumulative injury or occupational disease case; (2) concluded that CIGA will be, or may become, liable in successive injury cases when apportionment of liability is determined; and (3) determined that CIGA will generally be relieved of responsibility of administering an award.

 

 

Mark Miceli , et al.,

vs.

Jacuzzi, Inc., Remedy Temp, Inc, American Home Assurance Co., Reliance National Indemnity Co. (In Liquidation), California Insurance Guarantee Association.

March 28, 2003

2003-EB-1

2003-EB-1

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Case No. (WCAB No. POM 248928)

 

 

68 Cal.Comp.Cases 434

 

 

NOTE: The Board concluded that where the workers' compensation carrier for the general employer has become insolvent, and where there are no specific exclusions from the workers' compensation policy of the special employer, the policy provided by the insurer of the special employer constitutes "other insurance ... available to the claimant or insured" within the meaning of Insurance Code section 1063.1(c)(9). Because there is "other insurance," workers' compensation claims filed by temporary employees of the special employer are not "covered claims" for which CIGA has liability, but those claims become the liability of the special employer's insurer.

 

 

2002 en banc decision

Scott Kunz

vs.

Patterson Floor Covering, Inc.; and Golden Eagle Insurance Co.

December 5, 2002

2002-EB-10

2002-EB-10

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Case No. (WCAB No. SJO 0224503)

 

 

67 Cal.Comp.Cases 1588

 

 

NOTE: This case concludes, in substance, that: (1) under Labor Code section 4603.2, a defendant's failure to specifically object to a medical treatment lien claim on the basis of reasonable medical necessity (or on any other basis) does not effect a waiver of that objection; (2) the provisions of Labor Code section 4603.2 do not apply unless the prerequisites to the section's application have been met, i.e., the medical treatment in question must have been "provided or authorized by the treating physician selected by the employee or designated by the employer [pursuant to section 4600]" and the medical provider's billing to the defendant must have been "properly documented" with an "itemized billing, together with any required reports and any written authorization for services that may have been received;" (3) the Official Medical Fee Schedule applies to medical services provided, referred or prescribed by "physicians" at an outpatient surgical facility; (4) the Official Medical Fee Schedule generally does not apply to outpatient surgery facility fees, however, such fees nevertheless must be "reasonable;" and (5) in determining the reasonableness of an outpatient surgery facility fee, the Board may take into consideration a number of factors, including but not limited to the following: the medical provider's usual fee and the usual fee of other medical providers in the same geographical area, which means the fee usually accepted, not the fee usually charged; the fee the outpatient surgery center usually accepts for the same or similar services (both in a workers' compensation context and in a non-workers' compensation context, including contractually negotiated fees); and the fee usually accepted by other providers in the same geographical area (including in-patient providers).

 

 

Cheryl Coldiron

vs.

Compuware Corporation; California Insurance Guarantee Association,

on behalf of Reliance National Insurance Company, in liquidation, administered by Intercare Insurance Services; formerly administered by Gallagher Bassett Services,Inc.,

November 11, 2002

2002-EB-9

2002-EB-9

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Case No. (WCAB No. SRO 0088351)

 

 

67 Cal.Comp.Cases 1466

 

 

NOTE: The Board re-affirmed and declared its prior holding that a third-party administrator must promptly disclose the identity of its client and, if the client is an insurance carrier, the administrator must disclose whether the policy includes a "high self-insured retention," a large deductible, or any other provision that affects the identity of the entity actually liable for compensation. T he Board also declined to impose sanctions on the third-party administrator in this case and substituted the insolvent carrier in place of the employer.

 

 

Juan A. Rivera

vs.

Tower Staffing Solutions; State Compensation Insurance Fund

-and -

Calvin Crump vs. Los Angeles Unified School District, Permissibly Self-Insured, Adjusted by Helmsman Management Service

November 8, 2002

2002-EB-8

2002-EB-8

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Case No.

(WCAB No. POM 240908 - Rivera)

(WCAB No LAO 712097 - Crump)

 

 

67 Cal.Comp.Cases 1473

 

 

NOTE: The opinion concludes that section 4650(d) applies only to periodic indemnity payments, and not to the proceeds of commutations or C&R agreements, both of which reduce the underlying benefits to a lump sum, taking them outside the scope of the periodic indemnity payments set forth in section 4650.

 

 

Jeannie Karaiskos v. Metagenics, Inc.

and

Efrain Viveros

v.

North Ranch Country Club,

July 15, 2002

2002-EB-7

2002-EB-7

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Case No.

(WCAB No. AHM 70712, Karaiskos)

(WCAB No. VEN 102712 -Viveros)

 

 

67 Cal.Comp.Cases 900

 

 

The case concludes that EDD's liens for UCD benefits are not obligations to the state and therefore are "covered claims" under Insurance Code section 1063.1(c)(1)(vi) for which CIGA may be liable.

 

 

Lester Hershman

v.

James Eisenberg Medical Group; California Compensation Insurance Company, In Liquidation; California Insurance Guarantee Association; and Kemper Employers Claims Service (servicing Facility)

June 11, 2002

2002-EB-6

2002-EB-6

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Case No. (WCAB No. PAS 0023953)

 

 

67 Cal.Comp.Cases 808

 

 

The case concludes that LC section 5814 penalties imposed based on an insolvent insurer's pre-liquidation unreasonable delays in paying benefits are "covered claims" within the meaning of Insurance Code section 1063.1 et seq., and that CIGA's public policy arguments do not absolve it from liability for such penalties.

 

 

Alonso Navarro

v.

A&A Farming and Western Growers Insurance Co.

March 28, 2002

2002-EB-5

Case No. (WCAB No. GOL 0087934, GOL 0087935, GOL 0087936)

 

 

67 Cal.Comp.Cases 296

 

 

This opinion dismissed applicant's second, successive petition for reconsideration, also noting that if considered on the merits, the petition would have been denied.

 

 

Cheryl Coldiron

v.

Compuware; Permissibly Self-Insurred, by and through Gallagher Bassett Services, Inc Adjusting Agent

March 20, 2002

2002-EB-4

Case No. (WCAB No. SRO 0088351)

 

 

67 Cal.Comp.Cases 289

 

 

The case concludes "that where an employer's liability for workers' compensation benefits is adjusted by a third-party administrator, the administrator must disclose to the Workers' Compensation Appeals Board, to the other parties in any proceedings in which it is a party, and to its own counsel the identity of its client, whether a self-insured employer or insurance carrier. If the client is an insurance carrier, the administrator must disclose whether the policy includes a "high self-insured retention," a large deductible, or any other provision that affects the identity of the entity actually liable for the payment of compensation. Failure of the administrator to disclose the identity of its client may subject it to sanctions pursuant to Labor Code section 5813."

 

 

James McDuffie

v.

Los Angeles County Metropolitan Transit Authority

February 25, 2002

2002-EB-3

Case No. (WCAB No. MON 254928)

 

 

67 Cal.Comp.Cases 138

 

 

The case concludes that where the medical record requires further development either after trial or submission of the case for decision, the preferred procedure is first to seek supplemental opinions from the physicians who have already reported in the case.If the supplemental reports or depositions of the previously reporting physicians cannot or do not sufficiently develop the record, an agreed medical evaluator (AME) may be considered.Finally, if none of these options succeeds or is possible, the WCJ or the Board may then appoint a medical examiner.

 

 

Alonso Navarro

v.

A&A Farming ; and Western Growers Insurance Co.

February 13, 2002

2002-EB-2

Case No. (WCAB No. GOL 0087934, GOL 0087935, GOL 0087936)

 

 

67 Cal.Comp.Cases 145

 

 

The case concludes that where an injured employee's section 132a claim is premised upon the employer's termination of (or refusal to provide) group health plan benefits to the employee pursuant to the terms of an ERISA plan, the employee's section 132a claim "relates to" the ERISA plan and, therefore, is preempted by ERISA.

 

 

Maria Yolanda Jimenez

v

San Joaquin Valley Labor; and Superior National Insurance Company

January 24, 2002

2002-EB-1

Case No. (WCAB No. FRE 0147567)

 

 

67 Cal.Comp.Cases 74

 

 

The case concludes that a seasonal employee may be awarded TDI at two rates, an "in season" and an "off season" rate, and VRMA will be paid at the same rates.

 

 

2001 en banc decisions

Wahby Kamel

v.

West Cliff Medical; Superior National Insurance Company

December 24, 2001

*2001-EB-7

Case No. (WCAB No. LBO 301852)

 

 

66 Cal.Comp.Cases 1521

 

 

The case concludes that in the Labor Code Section 5814 penalty situation, the applicant must first establish delay or refusal in the payment of compensation and then the defendant "has the burden of proof as to the reasonableness of the delay ...."

 

 

Fred T. Hines

v.

New United Motors Manufacturing Inc., and Great American Risk Management

April 30, 2001

*2001-EB-6

Case No. (WCAB No. LAO 763476)

 

 

66 Cal.Comp.Cases 478

 

 

Maxine Hamilton

v.

Lockheed Corporation; Wausau Insurance Company.,

April 30, 2001

*2001-EB-5

Case No. (WCAB No. MON 0223961)

 

 

66 Cal.Comp.Cases 473

 

 

Julie Garcia

v.

The Vons Company, Inc., Permissibly Self-Insured.,

April 30, 2001

*2001-EB-4

Case No. (WCAB No. AHM 0057674)

 

 

66 Cal.Comp.Cases 469

 

 

William Wagner

v.

Allied Signal Aerospace; Zurich American Insurance Co.,

April 20, 2001

*2001-EB-3

Case No. (WCAB No. LAO 763476)

 

 

66 Cal.Comp.Cases 483

 

 

Julie Garcia

v.

The Vons Company, Inc., Permissibly Self-Insured

March 14, 2001

*2001-EB-2

Case No. (WCAB No. AHM 0057674)

 

 

66 Cal.Comp.Cases 362

 

 

Rick Rolda

v.

Pitney Bowes, Inc., Permissibly Self-Insured

February 21, 2001

*2001-EB-1

Case No. (WCAB No. VNO 359401)

 

 

66 Cal.Comp.Cases 241

 

 

2000 en banc decisions

Mary Davis

v.

Interim Healthcare, ITT Specialty Risk Services, Inc.;Wausau Insurance Companies

September 15, 2000

*2000-EB-2

Case No. (WCAB Nos. LAO 748301, LAO 768192)

 

 

65 Cal.Comp.Cases 1039

 

 

Farris

v.

Industrial Wire Products and

Liberty Mutual Insurance Company

July 17, 2000

*2000-EB-1

Case No. (WCAB No. SBR 0284141)

 

 

65 Cal.Comp.Cases 824

 

 

1998 en banc decisions

Phillips

v.

Sacramento Municipal

Utilities District

April 8, 1998

*1998-EB-1

Case No. (WCAB No. RDG 57899)

 

 

63 Cal.Comp.Cases 585,

Amended 6/2/98 -- 63 CCC 595

Writ of review denied 7/30/98 -- 63 CCC 1091,

Supreme Court.denied review 9/23/98

 

 

Note: Petition for writ of review was denied by Court of Appeal, Third Appellate District, on July 30, 1998, and petition for review was denied by Supreme Court on September 23, 1998.

 

 

1997 en banc decisions

Ford

v.

Lawrence Berkeley Laboratory

January 27, 1997

*1997-EB-1

Case No. (WCAB No. WCK 13904)

 

 

62 Cal.Comp.Cases 153

 

 

1 Civ. No. A078679

 

 

Writ denied March 24, 1998

 

 

Petition for Supreme Court review granted 5/20/98 and transferred to Court of Appeal, First Appellate District, with direction to vacate its summary denial and to issue a writ of review. Following issuance of a writ of review and oral argument, the Court of Appeal filed an unpublished opinion on 9/2/98 which affirmed the Board's en banc decision.

 

 

Ford

v.

Lawrence Berkeley Laboratory

April 22, 1997

*1997-EB-2

Case No. (WCAB No. WCK 13904)

 

 

62 Cal.Comp.Cases 479

 

 

1 Civ. No. A078679

 

 

Writ denied March 24, 1998

 

 

Petition for Supreme Court Review filed

 

 

Jones

v.

Ukiah Timber Products

September 15, 1997

*1997-EB-3

Case No. (WCAB No. SRO 76675)

 

 

62 Cal.Comp.Cases 1257

 

 

 

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Significant panel decisions

Tuesday, June 16, 2015

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Significant panel decisions

 

En Banc decisions | Significant panel decisions | Cases pending on appellate grants | Disclaimer

To view decisions, click on the PDF name of the decision (to the right of the date) and you will access the PDF file which contains the decision. Use of the California Compensation Cases citation is used for the community's information and convenience only with a recognition that the text and/or summary of the decisions may also appear in other publications.

2014 significant panel decisions

Timothy Bodam

v.

San Bernardino County/ Department of Social Services legally uninsured

Nov. 20, 2014

2014-SPD-4

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Case No. ADJ8120989 (SBR 0041910)

 

 

79 Cal. Comp. Cases ______

 

 

In affirming the Workers’ Compensation Judge’s finding that defendant’s Utilization Review (UR) decision was not timely communicated to the requesting physician and the employee as required by Labor Code section 4610(g)(3)(A) and Administrative Director’s Rule 9792.9.1(e)(3), the Appeals Board held: (1)  A defendant is obligated to comply with all time requirements in conducting a UR, including the timeframes for communicating the UR decision; (2)  A UR decision that is timely made but is not timely communicated is untimely; (3) When a UR decision is untimely and, therefore, invalid, the necessity of the medical treatment at issue may be determined by the WCAB based upon substantial evidence. 

 

 

 

Christopher Torres

v.

Contra Costa Schools Insurance Group; State Compensation Insurance Fund

Aug. 28, 2014

2014-SPD-3

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Case No. ADJ3011154 (SAC 0309784) - ADJ3631113 (SAC 0309785)

 

 

79 Cal. Comp. Cases 1181

 

 

Where the injured worker filed an unverified petition appealing an Independent Medical Review (IMR) determination, the Appeals Board held that the petition is subject to dismissal because Labor Code section 4610.6(h) provides that such a determination “may be reviewed only by a verified appeal.” Further, Rule 10450(e) requires that any petition filed with the Workers’ Compensation Appeals Board “shall be verified under penalty of perjury in the manner required for verified pleadings in courts of record,” and it provides that a non-verified petition may be summarily dismissed or denied. While lack of verification does not automatically require dismissal of an unverified petition, an appeal may be dismissed for lack of verification if the appealing party does not within a reasonable time cure the defect after receiving notice of the defect.

 

 

 

Jennifer Patterson

v.

The Oaks Farm; California Insurance Guarantee Association for California Compensation Insurance Company, in liquidation

July 24, 2014

2014-SPD-2

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Case No. ADJ3905924 (ANA 0339374)

 

 

79 Cal. Comp. Cases 910

 

 

Where the defendant had unilaterally terminated nurse case manager services to the injured worker, the Appeals Board affirmed the WCJ’s award reinstating those services, holding as follows:

  1. The provision of a nurse case manager is a form of medical treatment under Labor Code section 4600;
  1. An employer may not unilaterally cease to provide approved nurse case manager services when there is no evidence of a change in the employee’s circumstances or condition showing that the services are no longer reasonably required to cure or relieve the injured worker from the effects of the industrial injury;
  1. Use of an expedited hearing to address the medical treatment issue in this case is expressly authorized by Labor Code section 5502(b)(1);
  1. It is not necessary for an injured worker to obtain a Request For Authorization to challenge the unilateral termination of the services of a nurse case manager.

 

 

Eun Jae Kim

v.

B.C.D. Tofu House, Inc.; Cypress Insurance Company, et. all

February 7, 2014

2014-SPD-1

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Case No. ADJ9086333

 

 

79 Cal. Comp. Cases 140

 

 

The Appeals Board held that without regard to Court Administrator Rule 10252, which limits expedited hearings to specific issues in accepted claims, an expedited hearing may be requested and conducted under Labor Code section 5502(b)(2) and Administrative Director Rule 9767.6(c) to determine whether the employee must treat in the employer’s medical provider network during the 90-day delay period, under Labor Code section 5402(b), that the employer has to investigate and determine whether to accept or reject the claim.

 

 

2013 significant panel decisions

Maria Elena Mendez

v.

Le Chef Bakery; Pacific Compensation Insurance Co

April 25, 2013

2013-SPD-2

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Case No. ADJ6509620 ADJ6509621

 

 

78 Cal. Comp. Cases 454

 

 

The Appeals Board panel held that under Labor Code section 4903.06, a lien claimant is not required to pay a lien activation fee prior to a 2013 lien trial where: (1) the declaration of readiness (DOR) is filed prior to January 1, 2013; (2) the lien conference takes place prior to January 1, 2013; and (3) the lien trial takes place in 2013, without any intervening 2013 lien conference.

 

 

Eliezer Figueroa

v.

B.C. Doering Co.: Employers Compensation Insurance Co.,

April 5, 2013

2013-SPD-1

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2013-SPD-1

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Case No. ADJ3274228 (AHM 0120365)

 

 

78 Cal. Comp. Cases 336

 

 

Where the defendant had unilaterally terminated nurse case manager services to the injured worker, the Appeals Board affirmed the WCJ’s award reinstating those services, holding as follows:

  1. The provision of a nurse case manager is a form of medical treatment under Labor Code section 4600;
  2. An employer may not unilaterally cease to provide approved nurse case manager services when there is no evidence of a change in the employee’s circumstances or condition showing that the services are no longer reasonably required to cure or relieve the injured worker from the effects of the industrial injury;
  1. Use of an expedited hearing to address the medical treatment issue in this case is expressly authorized by Labor Code section 5502(b)(1);
  2. It is not necessary for an injured worker to obtain a Request For Authorization to challenge the unilateral termination of the services of a nurse case manager.

 

 

2011 significant panel decisions

Jose H. Hernandez

v.

AMS Staff Leasing

April 11, 2011

2011-SPD-1

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2011-SPD-1

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Case No.

ADJ2182149 (LAO 0837423)

ADJ3329537 (ANA 0360928)

 

 

76 Cal. Comp.Cases 343

 

 

The Appeals Board panel determined that when a paper file, an electronic file in EAMS, or a combined paper and electronic file is sent to the Appeals Board after the filing of a petition for reconsideration, removal, or disqualification, (1) there must be a complete and properly organized record which includes all documents admitted in evidence, (2) it is the responsibility of the WCJ to ensure that all documents in the record are scanned into EAMS, or at least placed in the paper file in proper order, no later than transmission of the file(s) to the Appeals Board, and (3) without a proper record the matter may be returned to the WCJ to properly complete the record.

 

 

2007 significant panel decisions

Kimberly Stokes

vs.

Patton State Hospital / Department of Mental Health /

State of California, legally uninsured,

administered by State Compensation Insurance Fund

July 9, 2007

2007-SPD-2

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2007-SPD-2

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Case No. SBR 0311485

72 Cal. Comp. Cases 996

 

 

The Board panel concluded that if an ambulatory surgery center is claiming to have provided medical treatment to applicant as a "clinic," it is required to have a fictitious-name permit and license from the Medical Board. However, if it is claiming to have provided services only as an "outpatient setting," it is not required to have a license or fictitious-name permit from the Medical Board if it is properly accredited by an agency recognized by the Medical Board.

 

 

Nelly Romero

vs.

Costco Wholesale, permissibly self-insured,

June 14, 2007

2007-SPD-1

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2007-SPD-1

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Case No. OAK 0328271

72 Cal. Comp. Cases 824

 

 

The Board held that for purposes of Labor Code ??4062.1(e) and 4062.2(e), an employee has "received" a comprehensive medical-legal evaluation when the employee attends and participates in the medical evaluator's examination. In this case, because the applicant had not attended and participated in (i.e., not "received") an examination by a panel QME scheduled while the applicant was not represented by an attorney, the applicant was entitled to request a new QME panel when the applicant became represented by an attorney. The workers' compensation judge's order for a new QME panel was therefore affirmed.This opinion involved interpretation of additions to Labor Code ??4062.1 and 4062.2 by SB 899.

 

 

2006 significant panel decisions

Caryl Erickson

vs.

Southern California Permanente Medical Group/Kaiser Permanente, Permissibly Self-Insured

December 28, 2006

2006-SPD-5

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2006-SPD-5

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Case Nos. POM 246580, POM 2465824

72 Cal. Comp. Cases 103

 

 

The Board panel granted reconsideration and amended the WCJ?s decision to defer the issue of the calculation of the amount of the permanent disability indemnity due to applicant after apportionment, pending issuance of the Supreme Court?s decision(s) in Brodie v. Workers? Comp. Appeals Bd., review granted November 15, 2006, S146979 (2006 Cal. LEXIS 13527), in Welcher v. Workers? Comp. Appeals Bd., review granted November 15, 2006, S147030 (2006 Cal. LEXIS 13523), or in any other case in which the Supreme Court issues an opinion that resolves this issue. This deferral approach was a continuation of the approach previously being employed by the Appeals Board in light of the ongoing conflict and uncertainty in the appellate case law on this issue where multiple injuries and/or apportionment of permanent disability under new Labor Code sections 4663 and 4664 are involved.

 

 

Catherine Robbins

vs.

Sharp Healthcare; American Manufacturers Mutual Insurance Company; and Broadspire Services, Inc., Adjusting Agency

September 26, 2006

2006-SPD-4

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2006-SPD-4

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Case No. SDO 0335934

71 Cal. Comp. Cases 1291

 

 

The Board panel concluded that bias or the appearance of bias solely against an attorney or law firm, as opposed to the party that the attorney or law firm represents, may be a valid ground for a petition for disqualification of a WCJ. In granting the defendant's petition for disqualification, it was determined that although there was no present actual bias by the judge toward the petitioning law firm, there was the appearance of bias sufficient to warrant disqualification.

 

 

Kathy Ward

vs.

City of Desert Hot Springs;

permissibly self-insured and administered by Hezelrigg Risk, Management Services

September 25, 2006

2006-SPD-3

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2006-SPD-3

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Case No. RIV 0069499

71 Cal. Comp. Cases 1313

 

 

The Board panel held that for claimed industrial injuries occurring on or after January 1, 2005, in which the employee is represented by an attorney: (1) pursuant to section 4060(c), medical disputes regarding the compensability of the alleged industrial injury must be resolved solely by the procedure provided in section 4062.2; and (2) an evaluation regarding compensability may not be obtained pursuant to section 4064(d) - and, if obtained, it is not admissible.

 

 

J Deanna Brasher

vs.

Nationwide Studio Fund; and State Compensation Insurance Fund

September 5, 2006

2006-SPD-2

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2006-SPD-2

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Case No. OAK 0296709

71 Cal. Comp. Cases 1282

 

 

The Board panel held that, in response to a treating physician's recommendation for spinal surgery, an employer has the following options: 1) authorize the surgery, 2) object to the surgery, pursuant to section 4062(b), by filing a DWC Form 233 within 10 days of receipt of the doctor's recommendation, 3) submit the recommendation to utilization review, or 4) pursue both options 2 and 3, either simultaneously or by filing an objection after a utilization review denial, meeting the timelines for each process. If the employer denies the surgery pursuant to its utilization review, the employee must object within 10 days of receipt by the employee of the employer's denial. The dispute will then be resolved under the second opinion procedures in section 4062(b).

 

 

In the Matter of John H. Hoffman Jr.

May 17, 2006

2006-SPD-1

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2006-SPD-1

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Case No. Misc. 250

71 Cal. Comp. Cases 609

 

 

The Board, in affirming the WCJ?s finding that Mr. Hoffman had violated the provisions of WCAB Rule 10779, concluded that (1) both Rule 10779 and the State Bar Act preclude any non-reinstated former attorney who has been disbarred or suspended by the Supreme Court (for reasons other than nonpayment of State Bar fees), who has been placed on involuntary inactive status by the State Bar, or who has resigned with disciplinary proceedings pending against him or her from appearing as a representative of any party before the WCAB (at least if they have not received permission under Rule 10779); (2) this preclusion against appearing as a representative of any ?party? extends to appearing on the behalf of any litigant, including but not limited to lien claimants; and (3) this preclusion against ?appearing as a representative? in WCAB proceedings extends to any activity that would constitute the practice of law.

 

 

2005 significant panel decisions

Wilma Diggle

vs.

Sierra Sands Unified Schools District, Permissibly

Self-Insured; and Self-Insured Schools of California (Adjusting Agent),

October 7, 2005

2005-SPD-3

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2005-SPD-3

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WCAB No. BAK 0138299)

 

 

70 Cal. Comp. Cases 1480

 

 

It was noted that en banc decisions of the Appeals Board are binding precedent on all Appeals Board panels and WCJs pursuant to WCAB Rule 10341. The Board concluded that this principle remains true where a petition for writ of review has been filed or even where a writ of review has been granted, either in the actual case in which the en banc decision issued or in a different case in which the en banc decision is directly implicated, unless and until either (1) the appellate court issues an opinion that explicitly or implicitly overrules the en banc decision or (2) the appellate court stays or suspends the operation of the en banc decision prior to the Court's issuance of an opinion.

 

 

Paul Hestehauge

vs.

Wayne Charkins; Laurie Charkins; California State

Automobile Association Inter-Insurance Bureau; and

Tri-Star Risk Management (adjusting agent),

September 23, 2005

2005-SPD-2

2004-SPD-2

(WCAB No. SFO 452026)

 

 

70 Cal.Comp.Cases 1294

 

 

NOTE: The Board held that applicant was not an "employee" of defendant homeowners under Labor Code sections 3351(d) and 3352(h) because, in the 90 days prior to his injury, he had not both worked at least 52 hours for them and earned at least $100 from them. Nevertheless, the Board also concluded applicant was an "employee" of defendant homeowners under Labor Code section 3715(b): (1) because it applies to all residential employees listed therein, including those employed by insured employers; (2) because it is the Legislature's express intent that the three types of residential employees listed therein are covered under the Workers' Compensation Act if they would have been covered by the law in effect prior to January 1, 1977; and (3) because the pre-1977 law covered residential employees if either the work being performed was contemplated to last more than 10 days or the total labor cost was at least $100.00, and here applicant's work met the latter requirement.

 

 

Jose Reyes

vs.

Hart Plastering

February 10, 2005

2005-SPD-1

2004-SPD-1

(WCAB No. POM 0261129)

 

 

70 Cal.Comp.Cases 223

 

 

NOTE: The Board held that the amendments to sections 4663 and 4664, which concern apportionment of permanent disability, have not affected the statutes governing the determination of whether an injury arises out of and occurs in the course of employment, i.e., sections 3600 and 3208.3, or the case law interpreting those statutes.

 

 

Kenneth Grom

vs.

Shasta Wood

December 8, 2004

2004-SPD-4

2004-SPD-4

(WCAB No. RDG 0091839)

 

 

69 Cal.Comp.Cases 1567

 

 

NOTE: The Board held that an applicant is entitled to such medical treatment as is reasonably required to "relieve" from the effects of an industrial injury, even if such treatment will not "cure" that injury. Thus, the phrases "cure and relieve" and "cure or relieve" are interchangeable.

 

 

Teresa Godinez

vs.

Buffets, Inc., permissibly self-insured

and Specialty Risk Services, adjusting agent,

October 4, 2004

2004-SPD-3

2004-SPD-3

(WCAB No. SJO 0225696)

 

 

69 Cal.Comp.Cases 1311

 

 

NOTE: The Board held that the timelines of an appeal from any determination or recommendation of the Administrative Director's vocational rehabilitation unit with reference to an injury occurring before January 1, 2004, is controlled by former Labor Code section 4645(d), and that defendant's appeal in this case was timely filed (i.e., filing of appeal with the Board within 20 days of service of the decision/recommendation, plus any additional time pursuant to WCAB Rule 10507).

 

 

Thomas Messinese

vs.

Automatic Heating and

State Compensation Insurance Fund

May 21, 2004

2004-SPD-2

2004-SPD-2

(WCAB No. RIV 055831)

 

 

69 Cal.Comp.Cases 480

 

 

NOTE: The Board concluded in essence that local child support agencies may issue valid and enforceable earning assignment orders without a signature by a judicial officer, that those assignment orders may include both future support obligations and arrearages, and that the local agencies are not required to obtain prior WCAB approval of these assignment orders.

 

 

John Lett

vs.

L.A.C.M.T.A;

The Travelers' Insurance Company

March 5, 2004

2004-SPD-1

2004-SPD-1

(WCAB No. VNO 0378504, VNO 0378505, VNO 0382578, VNO 0402513, VNO 0462718)

 

 

69 Cal.Comp.Cases 250 - Writ denied at 69 Cal.Comp.Cases 636

 

 

NOTE: The board held that applicant's signature on a deposition is not a condition precedent to the allowance of a deposition fee under Labor Code section 5710(b)(4).."

 

 

2003 significant panel decisions

Noe Vega

vs.

Taco Bell; California Indemnity Insurance Company

June 9, 2003

2003-SPD-3

2003-SPD-3

(WCAB No. VNO 458318)

 

 

68 Cal.Comp.Cases 921

 

 

NOTE: The board held "that an expedited hearing shall be set on a defendant's Declaration of Readiness to Proceed to Expedited Hearing under Section 5502(b) where the issue of a defendant's right to medical control within the scope of Section 4600.3, and concomitantly, an applicant's entitlement to medical treatment, is presented for decision."

 

 

Donna Yee Sanchez

vs.

Permanente Medical Group, and Athens

Administrators (Adjusting Agent), Natalie Piatt

vs

Eureka Union School District;

April 29 , 2003

*2003SPD-3

 

*2003SPD-3)

(WCAB No. OAK 271713 & SAC 304854)

 

 

68 Cal.Comp. Cases 637

 

 

In summary fashion, the Board (1) opined that for pre and post window period injury cases, applications must be filed before hearings may be conducted, orders issued, or the Board's judicial process invoked to compel discovery; (2) recognized that non-compelled pre-application investigation is permissible; (3) outlined remedies for pre-application abuse of discovery procedures; and (4) outlined conditions requiring the filing of an application under Labor Code section sections 4061(m) and 4063.

 

 

Shahin Motallebi,

vs.

Astro Business Solutions, ICS.;

Canon USA; Yasuda Fire & Marine Insurance.

March 18 , 2003

*2003SPD-2

 

*2003SPD-2

(WCAB No. VNO368013; VNO368014, VNO368015;

VNO368016, VNO368017; VNO368018

 

 

68 Cal.Comp. Cases 445

 

 

The case sets forth the specific conditions under which it was found that the Board had no jurisdiction to determine an applicant's liability for repayment of UCD benefits to EDD.

 

 

Alfred Lee (Deceased)

Valerie L. Lee (Widow),

vs.

Miracle Ford; California Insurance Guarantee Association, administered

by Intercare Insurance Services for

HIH America Compensation (In Liquidation);

West Covina Toyota;

Universal Underwriters Insurance Company/Zurich North America.

February 18 , 2003

*2003SPD-1

 

*2003SPD-1

(WCAB No. LAO 781284)

 

 

68 Cal.Comp. Cases 213

 

 

The Board concluded that an applicant may not elect against CIGA when there are other viable carriers having liability during the alleged cumulative exposure period.

 

 

2002 significant panel decisions

Les Hall,

vs.

Valley Media and Legion Insurance Company.

September 12, 2002

*2002SPD-2

 

*2002SPD-2

(WCAB No. SAC 309589)

 

 

67 Cal.Comp. Cases 1147

 

 

The case deals with whether and under what circumstances Legion Insurance Company, now in rehabilitation, can be excused from an obligation to make lump-sum payments and can receive a stay on future hearings if a settlement is not reached in denied or disputed cases.

 

 

Manuel Manzano vs. Flavurence Corporation; Fremont Compensation Insurance

-and -

Sarojini Singh vs. American Shower Door; Republic Indemnity Company

July 10, 2002

*2002SPD-1

 

*2002SPD-1

(WCAB No. LAO 778749 - Manzano)

(WCAB No AHM 075204 -Singh )

 

 

67 Cal.Comp. Cases 914

 

 

The cases deal with the issue of at what point in case proceedings may CIGA be appropriately dismissed.

 

 

2000 significant panel decisions

Isidoro A. Lucena

Diablo Auto Body: Liberty: Mutual Insurance;

Sun Valley Ford; Great States Insurance                     

December 20, 2000

*2000SPD-1                                   

(WCAB No. WCK 037874)

 

 

65 Cal. Comp. Cases 1425

 

 

1998 significant panel decisions

Jeffrey Mabe vs. Mike's Trucking

California Indemnity Indurance Company                                                                      

October 28, 1998

*1998-SPD-8

(WCAB No. VEN 105613)

 

 

63 Cal. Comp. Cases 1394

 

 

Daniel Kaiser vs. California Electric

California Casualty Indemnity Exchange                                                       

October 26, 1998

*1998-SPD-7

(WCAB No. WCK 0039701)

 

 

63 Cal. Comp. Cases 1391

 

 

Louis Jones vs. Target Stores

Constitution State Services,                                                                                

October 26, 1998

*1998-SPD-6

(WCAB No. PAS 0040032)

 

 

63 Cal. Comp. Cases 1385

 

 

George Wilson vs. Centinela Hospital

Medical Center                                                                                                     

September 4, 1998

*1998-SPD-5

(WCAB No. LAO 726063, LAO 726064, LAO 727783)

 

 

63 Cal. Comp. Cases 1048 NOTE:Order Correcting for Clerical Error

 

 

George Wilson vs. Centinela Hospital

Medical Center                                                                                                     

August 31, 1998

*1998-SPD-4

(WCAB Nos. LAO 726063, LAO 726064, LAO 727783)

 

 

63 Cal. Comp. Cases 1048

 

 

Stockman vs. State of California,

Department of Corrections

July 24, 1998

*1998-SPD-3

(WCAB No. BAK 123730, BAK 123079, BAK 123080)

 

 

63 Cal. Comp. Cases 1042

 

 

Larch (Fleming) vs. Contra Costa County

July 10, 1998

*1998-SPD-2

(WCAB No. WCK 21372)

 

 

63 Cal. Comp. Cases 831

Writ of review denied 8/12/99 -- 64 CCC 1098

Supreme Court denied review 10/20/99 NOTE:Petition for Writ of Review filed August 21, 1998.

 

 

Czarnecki vs. Golden Eagle

Insurance Company

May 26, 1998

*1998-SPD-1

(WCAB No. SDO 0217617, SDO 0217759)

 

 

63 Cal. Comp. Cases 742

 

 

1997 significant panel decisions

Becerra v. Eastside Reservoir

Project/Advanco Constructors                                                                                                     

July 17, 1997

*1997-SPD-1

(WCAB No. AHM 51304)

 

 

62 Cal.Comp.Cases 937

 

 

Green-Rhoads v. Gran Teasley                                                                            

July 17, 1997

*1997-SPD-2

(WCAB No. RDG 0060772)

 

 

62 Cal.Comp.Cases 943

 

 

Gubbins v. Metropolitan

Insurance Companies                                                                                          

July 17, 1997

*1997-SPD-3

(WCAB No. SAL 227062)

 

 

62 Cal.Comp.Cases 946

 

 

Cedeno v. American National

Insurance Company                                                                                            

July 21, 1997

*1997-SPD-4

(WCAB No. LAO 729720)

 

 

62 Cal.Comp.Cases 939

 

 

March 2013

 

Pasted from <https://www.dir.ca.gov/wcab/wcab_panel.htm>

 

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Program: Objections and Responses As Determined by decisions : (E/M) service by the same physician on the day of a procedure:  New:

Lien Activation Fee Back, Court Finds Constitutional and No Injunction

Monday, June 29, 2015

8:21 PM

In summary the issue wasn't whether the law was fair or not,  but whether under the Constitution, did the State have the power to enact the law, and under which standard of review. As the court found no due process rights were violated (procedural and or substantive), no equal protection rights violated  nor was there an unreasonable  taking of property. But that the labor code was rationally  related ( the standard of review) to a legitimate (economic) State interest, i.e. back log of liens. In addition,  the Court held the lower Court Judge erred in issuing an injunction as there was no serious due process rights at stake, as is the standard for issuing the injunction

 

"The panel held that the district court properly dismissed the Takings Clause claim because the economic impact of SB863 and its interference with plaintiffs’ expectations was not sufficiently severe to constitutes taking. The panel further concluded that the lien activation fee did not burden any substantive due process right to court access and also rejected plaintiffs’ claim that the retroactive nature of the lien activation fee violated the Due Process Clause. Vacating the district court’s preliminary injunction, the panel held that the district court abused its indiscretion that a“serious question” existed as to the merits of plaintiffs’ Equal Protection claim. Applying rational basis review, the panel held that Labor Code §4903.06(b), which exempts certain entities other than plaintiffs from having to pay the lien activation fee, was rationally related to the goal of clearing the lien backlog. The panel also reversed the district court’s denial of defendants’ motion to dismiss the Equal Protection Clause claim because the panel’s ruling on the preliminary injunction necessarily resolved the motion to dismiss. "

 

 

Below was taken from the actual decision:

 

"The panel affirmed the district court’s dismissal of plaintiffs’ claims under the Takings Clause and Due Process Clause challenging California Senate Bill 863, vacated the district court’s preliminary injunction and through pendent appellate jurisdiction, reversed the district court’s denial of defendants’ motion to dismiss plaintiffs’ Equal Protection Clause claim.In 2012,"

 

"Conclusion The district court properly dismissed plaintiff Due Process claims. We likewise conclude dismissal without leave to amend is proper because “it is clear, upon denovo review, that the [claims]could not be saved by. . .amendment.” Steckman v. Hart Brewing, Inc., 143 F.3d1293, 1296 (9th Cir. 1998). However, because the district court abused its discretion in concluding that “serious questions” exist as to the merits of plaintiffs’ Equal Protection claim, we vacate the preliminary injunction. Wealso reverse the district court’s denial of defendants’ motion to dismiss the Equal Protection claim because our ruling on the preliminary injunction necessarily resolves the motion to dismiss.

 

AFFIRMED in part, VACATED in part, and Reversed in part  Costs are awarded to defendants"

 

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/06/29/13-56996.pdf

 

 or at www.workcompliens.com

 

In short, what it means is that all liens filed prior to 2013 still on the books and no lien fee paid would be subject to a lien activation fee of $100.00, if a $150.00 was already paid, then the $100.00 would not be required,  it is an either or, not both. The WCAB and the  DWC will give notice on, when , if and how they will start enforcing, giving all parties sufficient notice before any action

 

The upside to the decision is, that most pre-2013 liens filed have already gone through the system and escaped the $100.00 lien activation fee. The  DWC and WCAB will not go back and try to collect those that would have been subject  to a lien activation fee had an injunction not been issued,  disturbing final resolution of those  lien cases.

However, the more negative aspect of the decision is that, although the lien filing fee of $150.00 for liens filed on or after January 01, 2013 was not the subject of this case , it would have naturally followed, had this case resulted in a different finding.

 

As to the automatic dismissal of all liens that did not show a lien  fee paid by January 01, 2014, that did not take place because of the initial injunction, these cases / liens will not be dismissed by law or reapplication of the law that was prevented enforcement by injunction, as the DWC and WCAB will give a new cut off date, if they decide to enforce and or create such a default. As one has to recall, because of the initial injunction, they were prohibited from collecting such a fee, therefore a default cannot now take place without reasonable notice of that default and an opportunity for parties to cure before a default and or dismissal takes place.

 

 As to a possible appeal of the decision, the Plaintiffs have a lot to consider, as they were hit with the defense  costs of the litigation, which is not a small amount, so the possibility  of an appeal,  and considering additional costs and , weighing the chances of success, a decision to appeal by the Plaintiffs  is not a given.

 

 The real issue is how this will affect lien settlements, as some lien claimants have adjusted to the lien fee of $150.00 not the subject of the case and getting settlements by defense attorneys  even when issues should not be be lien filing issues (IBR, IMR).   Thus creating  a take off of what we had prior to 2013, filing liens to get better settlements, regardless of the merits of the case.

 

Therefore, if nothing changes with  the defense settling when a lien is filed, little will change. However, if the DWC requires all liens filed prior to 2013, that do not have a lien fee, to have lien fee (activation) or be dismissed by a given date, then a tremendous issue is present and mass defaults may  take place

 

Note: Thanks to " Workcomp Zone", who first posted the decision yesterday. and Tricia Ruggles who sent out the notice of the case decision.

 

 

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DRG 491 PPO Issue

Tuesday, June 30, 2015

7:31 PM

 

 

ANALYSIS AND FINDING  Based on review of the case file the following is noted:

·

ISSUE IN DISPUTE: Provider seeking full remuneration for Inpatient Hospital Services DRG 491

Back & Neck Proc.Exc. spinal fusion W/O CC/MCC performed 09/08/2014 -09/09/2014.

·

Claims Administrator reimbursement rational: “No further reimbursement was made as the maximum allowance has been reached for this admission. Labor Code 5307.1”·

§9789.21. (o) "Inpatient Hospital Fee Schedule maximum payment amount" is that amount determined by multiplying the DRG weight x hospital composite factor x 1.20 and by making any adjustments required in Section 9789.22 (G)(2).

·

DRG 491 is not listed in Section 9789.22 (G)(2) for additional fees.

·

Contractual Agreement Not Available for IBR. As such, 100% OMFS will be utilized to

calculate payment pursuant to §9789.21.The table below describes the pertinent claim line information

 

Pasted from <http://www.dir.ca.gov/dwc/IBR/IBR-Decisions/Decisions2015/IBR2015_10-100/CB15-0000014.pdf>

Service Code

Provider Billed

Plan Allowed

Dispute  Amount

Units

Multiple Surgery

Workers Comp Allowed

Notes

DRG 491

$65,218.79

$1,425.00

$14,803.38

1

 

$14,239.99

Additional awarded $12,814.99

 

 

Machine generated alternative text: . DRG 491 is not listed in Section 9789.22 (G)(2) for additional fees.
. Contractual A2reement Not Available for IBR. As such. 100% OMFS will be utilized to
calculate payment pursuant to §9789.2 1.
The table below describes the pertinent claim line information.
DETER11EWAHON OF ISSUE IN DISPUTE: Reimbursement of code 29846
Date of Service: 09:082014 -O909.2014
In Patient Hospital _______ ____________
. Workers’
Service Provider Plan Dispute Un.ft Comp N t
Code Billed Allowed Amount S Allowed o es
Amt.
DRG 491 $65,218.79 $1,42500 $14,803.38 1 $14,239.99 ONffS — Reimbursed
Amount = S12,8 14.99
Due Provider.

 

 

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Simple Consultation (E&M)0 Paid Order 60 Days $805.32 no Lien Plus P&I

Wednesday, July 1, 2015

11:41 AM

 

 

Machine generated alternative text: DETERMINATION OF ISSUE IN DISPUTE: Reimbursement of codes 99205-25, 99354 &
96101-59 is recommended
Workers’ I
Comp ,
Notes
Allowed
DISPUTED SERVICE: Allow
__________ _________ _________ _________ _________ _________ _________ I reimbursement $237.67
DISPUTED SERVICE: Allow
reimbursement $114.35
DISPUTED SERVICE: Allow
reimbursement $453.30
Date of Service: 8.20.2014
Physician Services
Service
Code
Provider
Billed
99205
Plan Dispute
Allowed Amount
$275.00
$0.00
Units Multiple
Surgery
$275.00
1
96101-59
Amt.
N/A
99354
$125.00
$0.00
$125.00
1
N’A
$114.35
$500.00
$237.67
$0.00
$500.00
5
N’A
$453.30

 

Service Code

Provider Billed

Plan Allowed

Dispute  Amount

Units

Multiple Surgery

Workers Comp Allowed

Notes

99205

$275.00

$0.00

$275.00

1

 

$237.67

Award: $237.67

99354

$125.00

$0.00

$125.00

1

 

$114.35

Award: $114.35

96101

$500.00

$0.00

$500.00

5

 

$453.30

Award: 453.30