The Long and Winding Road
William Nathans
EditorAs another year draws to a close, I realize our community has survived another year of change and uncertainty. Now that Arnold has secured a second term, will we see a settling in on the work comp front or will the Governor begin to push forward to complete his vision of the California Workers’ Compensation System?
The Governor has been a tempered presence since his defeat in the November 2005 special election; emerging from this humbling experience as a new and improved Governor ready to be more of a uniter. I’m sure the Governor, who is an excellent business man, has not forgotten his original goal for California. The statement he made when he announced his candidacy for governor is a good indication of how he will shape the future of Workers’ Compensation in California.
"The most important thing is that we bring business back to California. There are more businesses leaving California now than ever before. When businesses come back, revenue comes back. When revenue comes back, we can afford all kinds of different programs that are very important."
Since workers’ compensation is a significant part of why companies decide to do business in this state; I am sure our community will continue to be effected.
Although I hope for the best, I fear the coming year will be more of the same as we struggle to get to our final destination on the California Workers’ Compensation roller coaster ride. Along the way, we may finally get a ruling on "how to apply" the new apportionment rules; or not. Utilization Review may undergo some slight changes. But, will there be changes to the permanent disability rates? Will there be changes to the evidence based guidelines? Will we finally get answers to the critical questions of 2006? Only the New Year will tell.
I would like to take this opportunity to wish all of you a happy Holiday Season. I would also like to thank you for reading our newsletter. I appreciate all the feedback and comments. I am thankful when you, the readers, take the time to respond to our commentaries and articles.
I would like even more comments, questions, suggestions from you, our readers. I would like to know what issues you would like to see discussed.
Once again, from all of us here at Adjusting World, Happy Holidays and our wishes for health and happiness in the coming year.
Comments, questions, e-mail me at bill@adjustingworld.com
Sandhagen Revisited
Stephen L. Kline, Esq.
Armstrong Law Firm
stephenk@arm-law.comSeven months after the passage of SB 899, the WCAB, sitting en banc issued its first decision in the Sandhagen matter. The WCAB essentially said if Utilization Review (UR) was untimely, then the UR non-certification report could not be used for any purpose. Tight deadlines were statutorily imposed and strictly enforced.
Sandhagen II decided by the WCAB, sitting en banc ruled in February, 2005 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”.
Well both sides were aggrieved and sought relief at the Third District through dueling Petitions for Writs of Review. Both Petitions were granted and the battle was engaged.
On November 14, 2006, the Third District announced its decision in a ruling certified for publication. They affirmed both the WCAB en banc decisions. While the result may not make the employer / insurance community thrilled, the words of the decision can be very promising for future cases. No my glasses are not rose colored.
In examining the statutory background, the Court reaffirmed Labor Code section 4600 (b) which states, "[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 [Director] pursuant to Section 5307.27”
This is very important. Anecdotal medicine is not necessarily reasonable & necessary treatment to cure or relieve an injury. “Reasonable & necessary treatment” is defined by Labor Code section 4600 (b) to be that which is provided by the Administrative Director’s Guidelines (ACOEM at the present time) or other Evidence Based Medicine. It is the treater’s responsibility to show compliance with 4600 (b). This is critical in keeping the medical costs under control.
The mandatory timelines are strictly enforced and very tight. There is very little way around the legislature’s language. But the Court clearly stated that UR is not an exclusive remedy and that the procedures of Labor Code 4062 and the AME/ QME dance for cases before 1/1/05 and the AME/Panel QME tango for cases after that date could be used. We have a choice. Not everything needs to sent to UR and the time lines badly mangled. You can dance.
Where did the WCAB get the authority to say what reports can be used and what cannot?
Well the WCAB rested their laurels on the “we said we can do it so that’s why we did it” philosophy. They raised arguments that “if administrative penalties are all an employer must fear, then it could indefinitely delay obtaining a UR report, notwithstanding the section 4610, subdivision (g)(1) deadlines, and, as a result, "the medical treatment dispute resolution process established by the Legislature would be thrown into utter chaos."
The Court of Appeals tersely shot down that argument by writing, “An expression of the need for a rule, no matter how compelling, cannot fill a gap in legal authority. The WCAB's foreboding sheds no light on the source of its authority to exclude untimely UR reports.”
The Court of Appeals then rested the authority through Labor Code section 133, where the Legislature granted the Board the power to "do all things necessary or convenient in the exercise of any power or jurisdiction conferred upon it." Cleverly the Court of Appeals pointed out that the WCAB controls its own procedures and thus, there was no need for the doomsday approach.
What are the lessons of Sandhagen?
UR is not mandatory. Time limits will be strictly enforced and if there is a breach of the deadlines, then the non-certification report is inadmissible for any purpose. Still a heavy burden to pay.
4601 / 4602 objections and the AME / QME dances may be a more viable tactic to uphold Labor Code 4600 (b) and Evidence Based Medicine.
“Reasonable and necessary medical treatment to cure or relieve the industrial injury” now has a statutory definition. Just because a doctor wants to treat in a certain profitable way does not necessarily bring it within the Guidelines. Too many doctors and Judges are ignoring this law. This is our challenge to bring that statute to bear both with the doctors and the Judges. Could this be your first 2007 New Year’s Resolution?
Wishing you and all those who are dear to you, the best for the holiday season and the new year, I appreciate your attention.
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There is a trail of bodies of people who left or transferred out of
his chain of command, and I believe at least some of these have pointed
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upper manager about him. Supposedly he was being put on a short leash,
yet we are at the start of another big cycle and he is repeating the
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he’ll change this, that, or the other thing just to show he did
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