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December - January 2017

MEDICAL PROVIDERS CHARGED WITH OR CONVICTED OF FRAUD

We all applauded when the California State Legislature passed laws which became effective on January 1, 2017, preventing medical providers convicted of certain types of fraud from collecting their liens. Another law was passed which placed an automatic stay on the liens of any provider who was charged with committing workers’ compensation fraud.

Finding out who was involved seemed to be a problem until the Department of Industrial Relations began publishing lists of the offenders at the DIR Web Fraud Prevention Web site.

The DIR has currently posted the list of indicted medical providers only, but a list of those convicted will be added as soon as it becomes available.

The Fraud Prevention Web site can be accessed here:
http://www.dir.ca.gov/Fraud_Prevention/

Richard Berryhill, Esq.


ANOTHER CHIP OUT OF SB899: 151% FOR A BODY REGION

The language of Labor Code section 4664(c)(1), enacted as part of SB899, clearly prohibits multiple awards which exceed 100 percent when those awards involve the same region of the body:

  The accumulation of all permanent disability awards issued with respect to any one region of the body in favor of one individual employee shall not exceed 100 percent over the employee's lifetime.

Section 4664(c)(1) defines the upper extremities, including the shoulders, as one region of the body. Despite this language, a three member panel in Matlock v. State of California ruled that an injured worker was entitled to a 100 percent award for a 2004 injury which included the left shoulder, low back, and neck, and another 51 percent award for a 2005 injury to the right shoulder.

The Panel’s reasoning was that the applicant was entitled to the second, separate award for the 2005 right shoulder injury because the 2005 injury was a “separately ratable disability” and the “applicant's shoulder disabilities were caused by different injuries.”

The Panel could have reasoned that the multiple body parts involved in the 2004 injury made it impossible to separate out the left shoulder portion of the 100 percent award, thereby preventing application of section 4664(c)(1). But the reasoning of this decision opens the door for applicants to argue that the prohibition against exceeding 100 percent accumulated awards does not apply when the injuries occur on different dates, therefore making them “different injuries.”

Richard Berryhill, Esq.


CHANGES IN HANDLING ASBESTOS CLAIMS

For those of us who handle asbestos cases, there are big changes taking place at the San Francisco District Office of the Workers’ Compensation Appeals Board, which handles all workers’ compensation asbestos litigation for Northern California. Here are some of the changes announced in December 2016 and already taking effect:

Judge Colleen Casey, who has presided over the asbestos docket for approximately 10 years, has elected to return to the regular workers’ compensation docket. Presiding Workers’ Compensation Judge Jacqueline Duncan will now conduct the asbestos docket. However, it is our understanding that all judges will be available to conduct trials in asbestos cases.

It appears the DWC intends to promote more procedural consistency between Northern and Southern California asbestos practice, as well as to bring that practice more in line with procedures in so-called “normal” workers’ compensation cases. For example, the scheduling of hearings, continuances and other calendar matters will go through the Board’s regular calendar clerk, no longer through the judge’s assistant/secretary.

The goal of the changes is to move cases and promptly deliver benefits to those applicants who are entitled to them. To that end, counsel representing asbestos applicants were directed to conduct their discovery of the facts establishing a claim before filing the Application for Adjudication of Claim. All persons representing parties to asbestos cases were instructed to complete all discovery before filing a Declaration of Readiness to Proceed.

Applicant’s counsel are to serve all medical reports free of charge, and all parties will be expected to comply with Rules of Practice and Procedure Section 10608, which requires service of medical reports and medical-legal reports within 10 days of a request by another party or lien claimant, and serve subsequent reports within 10 days of receiving them.

What could be quite important about this is that Rule 10608 (a) defines “medical information” as including “deposition transcripts” containing references to medical reports, medical-legal reports, medical treatment, medical diagnoses, or other medical opinions.” In the past, it has been the practice of some applicant’s firms to require substantial payments from defendants to receive copies of deposition transcripts. As I understand this rule, if there is any reference anywhere in a deposition transcript to any medical issue, that transcript must be served as if it were a medical report. With most firms accepting electronic service of documents, at least in the asbestos forum, this is not a terrible burden on the applicant, but relieves a significant burden on defendants.

Although it was made in the form of a request, another significant change may have to end up as a mandate. It was suggested that parties should limit the number of medical reports obtained in a single case. I discussed this issue after the announcement with several other attorneys, and it was the consensus that there is nothing in the statutes exempting asbestos cases from the reforms which instituted the AME/PQME requirement. It will be very interesting to see how this plays out, as the asbestos bench and bar have heretofore essentially ignored SB 899 and SB 863, and continued with the older practice of “dueling doctors.”

Apparently another common practice will be falling by the wayside. Until now, asbestos practice in Northern California has been characterized by repeated continuances to serial Status Conferences. Often, the continuances were requested a few days to less than 24 hours before the scheduled conference. Requests for continuance, generally disfavored by all WCAB offices, were routinely granted without a substantial showing of good cause. Going forward, no continuance will be allowed without good cause, and it was made clear that a party’s failure to conduct discovery in a timely manner would not be considered good cause. To put some teeth into this, representatives for both sides of the asbestos litigation were cautioned that there will be sanctions for unnecessary delay of the litigation.

The full impact of these changes remains to be seen. They are all changes this author has advocated for several years. It will be very interesting to see how the face of asbestos workers’ compensation litigation evolves as the new procedures take effect.


Patricia Hastings, Esq.


 

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