inside

• Editor’s 2 Cents: What do you mean, I gotta be certified, Redux?
• Legal Update: More burdens for lien claimants
• Joan Lloyd: Job hunters take note - recent behind the scene changes
• Newsflash: The Evolution or Erosion of SB 899: Myths and Realities
• Job Alert: We're looking for... Are you an Adjuster?
• Events Calendar DVICA's Cinco De Mayo
• Poll: Will some of the SB 899 reforms be rolled back in the next session of the Legislature?
• Poll Results: Should chiropractors and acupuncturists be pre-designated treating physicians?
• The Last Laugh

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What do you mean, I gotta be certified, Redux?

William Nathans
Editor

 

The training regulations are now upon us as of February 22, 2006. What follows is a brief description of the six categories and how much training is involved. This article will talk about claims adjusters.   

The two types of claims adjuster and experienced claims adjuster. The differences are based on length of experience.

An experienced claims adjuster is defined as a professional who has had at least five years out of the last eight years of on-the-job experience adjusting California workers’ compensation  claims or supervising claims adjusters handling California workers compensation claims and is designated as an experienced claims adjuster by an insurer.

A person who has successfully completed the written examination specified by Title 8, section15452 of the California Code of Regulations is an experienced adjuster, provided that he or she has either worked as a claims adjuster or supervisor continuously since passing the examination or has passed the examination within the previous five years and is designated as an experienced claims adjuster by an insurer. (can a tpa designate?) Experienced claims adjuster means a person who has already been trained and designated a claims adjuster and now meets the requirements of experience or examination noted above and is designated an experienced claim an experienced claims adjuster by an insurer.

What do you need to do to maintain this designation? Beginning on the effective date of the regulation a minimum of 30 hours of post-certification training is required every two years,, which need not be in classroom with an instructor. (monitoring?)

A claims adjuster is a person, who on behalf of an insurer, including an employee or agent of an entity, is responsible for determining the validity of workers compensation claim. The claims adjuster may also establish a case reserve, approve and process all workers compensation indemnity and medical benefits, may hire investigators, attorneys, or other professionals and may negotiate settlements of claims. Claims adjuster also means a person responsible for the immediate supervision of a claims adjuster but does not include attorneys representing the insurer or a person whose primary function is clerical. It also does not include the medical director or physicians utilized by an insurer for the utilization review process.

In order to achieve this designation, 160 hours of education within one year of the effective date of the regulation or the date started working as an adjuster (whichever is later) of which at least 120 hours shall be conducted in a classroom with an instructor and 40n hours shall be on the job training. The on the job training shall be done under the supervision of an instructor  or an experienced claims adjuster. A claims adjuster trainee may adjust claims under the supervision of an experienced claims adjuster during the 12-month training period. Beginning on the effective date of the regulation a minimum of 30 hours of post-certification training is required every two years which need not be in a classroom with an instructor.

I can hardly wait…

Suggestions can be sent to Bill@adjustingworld.com

More burdens for lien claimants

Stephen L. Kline, Esq.
ARMSTRONG LAW FIRM
stephenk@arm-law.com

In an important case that has been just certified for publication, the Fourth District Court of Appeal in the matter of Zenith v WCAB (Capi), 71 Cal Comp Cases 374 has clearly reiterated that “in workers' compensation matters, the burden of proof rests on the party or lien claimant "holding the affirmative of the issue." Labor Code 5705.  We know that all too well as usually most of that burden is with us.

In this case, the applicant settled his matter by Compromise & Release. The surgery centers and others had filed liens.   A Lien Conference was held and Zenith requested a stay in the proceedings pending the outcome of a civil action against the lien claimants and others on the basis that they were not fully licensed.  The WCJ did not grant the stay and at the trial of the matter, the lien was ordered paid.  Zenith filed a Petition for Reconsideration which was denied.  However, they found better listeners at the Court of Appeals.

The Appeals Court ruled that since the legislature “recognized that many surgical procedures are performed in numerous types of outpatient settings and although the health professionals delivering the services are licensed, further quality assurance is needed to ensure that the services are safely and effectively performed. (Bus. & Prof. Code, § 2215.) To implement this intent, the Health and Safety Code contains regulatory and licensing provisions governing different types of outpatient settings. (Bus. & Prof. Code, § 2217.) Notably, it is illegal to operate an outpatient setting in California, including ambulatory surgical centers and surgical clinics, if the outpatient setting is not properly licensed or accredited.”

“Accordingly, in order to establish their right to reimbursement, the lien claimants bore the burden of proving they were properly licensed or accredited.”

A plain, simple and direct ruling.   What does this mean for us on the front line? 

In our contests with lien claimants, before we get to whether the medical services are reasonable and necessary per Labor Code section 4600(b) and before we raise the issue of whether the fees are consistent with the Official Medical Fee Schedule, we must require that lien claimants prove that ALL their licenses were current at the time they rendered those services. This includes fictitious business licenses, as well as all other licenses and certifications they need to do the services & business that they “performed”.  These issues must be raised at the Lien Conference in preparation for trial for each contested lien.  They have the burden to meet.

This case expands on the other  seminal case  which has been used  in the struggles with lien claimants. As a reminder,   Kunz v. Patterson Floor Coverings, Inc. 67 Cal.Comp.Cases 1588 (2002 Appeals Board en banc opinion) set out the road map for the lien claim fight.

The Board held in Kunz  that under section Labor Code sec 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) WILL NOT effect a waiver of that objection; and that the provisions of that section 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 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;''   The Lien claimant must sustain its burden. 

Failing to make timely objections to medical services does expose employers to a risk such as a ten-percent penalty and/or interest, accrued from the date the defendant received the lien claimant's bill, on the unpaid balance of the lien allowed by the Board.  There is also possibility of a 5814 penalty if the failure to object and pay is deemed unreasonable.  However, Kunz said, that the Lien Claimant does not automatically win when there is no objection.

I agree with a colleague who has suggested that certain chiropractic treatments such as Manipulation Under Anesthesia which have not approved by the regulatory processes, may be contested with a new vigor because of this case.  The costs of unauthorized, excessive and useless medical procedures have been the bane of the workers compensation system.   The Fourth District has provided with us a great tool to work to contain these costs.

Another place for you  to find tools for the open spaces on your belt is a half-day Seminar entitled,   “The Evolution or Erosion of SB 899: Myths and Realities” put on by the Armstrong Law Firm on May 18, 2006 at the Santa Clara Marriott, 2700 Mission College Blvd., Santa Clara.   We will be outlining useful, practical suggestions from 4600 (b) to the LeBoeuf issues to Medicare Set Asides to the 15% up and down  to the Supplemental Job Displacement Voucher to the new relationship with FEHA and ADA.

There is a nominal charge for parking, breakfast and written materials that you will use throughout the year.   For more details, please contact me at stephenk@arm-law.com  or Marjorier@arm-law.com.  You may also call Marjorie Roldan at 408-279-6400.

As one of the presenters, I look forward to meeting you.   Thanks for your attention.

 

The Evolution or Erosion of SB 899: Myths and Realities put on by the Armstrong Law Firm on May 18, 2006 at the Santa Clara Marriott, 2700 Mission College Blvd., Santa Clara.   We will be outlining useful, practical suggestions from 4600 (b) to the LeBoeuf issues to Medicare Set Asides to the 15% up and down  to the Supplemental Job Displacement Voucher to the new relationship with FEHA and ADA.

There is a nominal charge for parking, breakfast and written materials that you will use throughout the year.   For more details, please contact Steve Klein at stephenk@arm-law.com  or Marjorie Roldan at Marjorier@arm-law.com.  You may also call Marjorie Roldan at 408-279-6400.

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