In the Penalty Box
William Nathans
EditorThere was a recent survey that was done about medical care under the new system. The big surprise was that injured workers were generally satisfied with the medical treatement they received for their industrial injuries. The group that voiced the biggest complaints were (surprise surprise) the doctors!
Because of the drop in patients, there were several specialties that were big complainers. The three biggest groups of complainers were chiropractors, acupuncturists and orthopedic surgeons. I guess there was some over treatment under the prior system! I guess this takes some of the wind out of the sails of the applicant bar regarding denial of care issues.
On another note, I want to talk about the bane of every adjuster's existence; penalties. It is my opinion that the leading cause of indemnity benefits penalties is not because the adjuster does not care, or wants to harass or vex the injured worker, but it is all the work an adjuster has to do on a claim. We cannot handle the same number of claims we are use to.
Please understand that I believe the changes in the law were necessary and will benefit the genuinely injured employees of this state. But I know carriers where adjusters are handling close to 200 files. It is damn near impossible not to make a mistake handling that many files.
If carriers are serious about wanting to avoid penalties, there is a simple solution. That solution is to lower caseloads. I am convinced that the maximum number of files that is reasonable for an adjuster to handle is 120-125.
What do you think?
Comments, questions, e-mail me at bill@adjustingworld.com
Keep Hope Alive
Stephen L. Kline, Esq.
Armstrong Law Firm
stephenk@arm-law.com
The issue regarding which rating schedule to use for cases with dates of injury prior to January 1, 2005 is very much alive.
While the WCAB has “sort-of” spoken on the matter with their 4-3 en banc decisions written about last month. The Commissioner who cast the deciding vote on the WCAB is no longer a Commissioner. In addition, there are no less than four cases that are currently on appeal in various District Courts of Appeal throughout the State.
In a published case finalized in late February, on a corollary issue, the First District Court of Appeal has entered into the fray. SCIF v WCAB (Echeverria), 72 Cal Comp Cases 33, may provide some insight as to where the trend may be.
You may remember that CAAA suggested to its members that in December, 2004 that they send a letter to primary treating physicians asking them to respond to a question whether the applicant was expected to have any permanent disability as a result of the injury. Doctors were requested to respond quickly.
In the Echeverria case, the doctor responded by signing the pre-printed response which stated, ''I believe permanent disability is within reasonable medical probability emanating from this injury.'' The document was signed and dated 12/15/04.
At trial, the Workers Compensation Judge (WCJ) found that this report constituted a ''report by a treating physician indicating the existence of permanent disability'' within the meaning of section 4660, subdivision (d). The WCJ found, as well, that nothing in section 4660, subdivision (d) requires an opinion that the worker is permanent and stationary, and noted that the statute ''does not require a medical determination of the amount of permanent disability. It only requires an indication of the existence of permanent disability.'' The WCAB agreed.
The First District disagreed. They annulled the decision and remanded it back for further proceedings.
Luckily for SCIF and all of us, the Court overlooked the SCIF trial attorney’s failure to object to that report at the trial on the basis that it was not compliant with the Administrative Director’s regulations defining the necessary elements for medical reports. They found another reason for overturning the WCAB.
The Court said, “the Board's decision to apply the 1997 PD schedule is not supported by substantial evidence. In this case, nothing in the reports, however, appears to tie the range of motion and pain symptoms to the December 15, 2004 prediction of permanent disability. To the contrary, the reports make no mention at all of prognosis, but instead simply declare that Echeverria remained temporarily totally disabled. None of the reports provide any reasoning to support the doctor’s December 15, 2004 conclusion.”
Interestingly, the Prendergras (WCAB en banc decision) principle that holds if Temporary Disability has been paid before 1/1/05, then the case is to be rated under the 1997 schedule, regardless of whether any of the other statutory exceptions were met was not raised by the Judge, the Board, or the applicant’s attorney.
The First District Court Judges were not impressed with the CAAA ruse to overcome the statute. The publication order of this decision which came AFTER the issuance of the en banc decisions may indicate that the Court does not seem to favor the Prendergras principle.
What’s an adjuster to do?
First until and decision explicitly staying or overturning Prendergras is issued, the WCJ’s will be following that decision. This will probably have the greatest effect on mail-in settlement with unrepresented applicants as the Information & Assistance Officers will be strictly enforcing Prendergras. This means that many of those settlements may be set for Adequacy Hearings.
The Community is faced with a business decision to determine whether the variance between the rating schedule is large enough to wait for resolution until the law becomes more stable and accurate. The submission of settlements where temporary disability has been paid prior to 1/1/05 and that are not using the 1997 Rating Schedule for the evaluation of permanent disability may be fraught with danger and extra expense. Clearly, within the next few months there will be more cases on this issue. With the appointment of a new WCAB Commissioner and several appellate cases being argued, we can keep hope alive.
Thanks for your attention.
Don't miss Steve's Legal Update at the SBICA Luncheon on March 23.
See the events calendar for more information......
Dear Joan:
Can you, or someone, explain this to me. When you are on a job interview, and the interviewer asks, "What is your most embarrassing moment?" what are they looking for? And why?
State Division of Workers' Compensation to hold free Spanish-language seminar on workers' compensation benefits and laws in San Jose next Thursday
The California Division of Workers' Compensation (DWC) will conduct a free Spanish-language seminar on workers' compensation benefits and laws in San Jose on Thursday, Mar. 8 from 6-7 p.m. This seminar is part of a program for Bay Area workers, which rotates monthly between San Francisco, Oakland and San Jose.
The seminar is set up for employees that have recently filed a workers' compensation claim with their employer, but any worker can benefit from attending and anyone can attend. The San Jose workshop will be held:
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