Medical Legal Page

WARNING: THE BELOW SUGGESTIONS, INFORMATION AND RESEARCH PASSAGES ARE FOR EDUCATIONAL PURPOSE ONLY AND ARE NEITHER TO BE CONSTRUED AS LEGAL ADVICE NOR ANY GUARANTEE THAT YOU WILL GET YOUR BILLS PAIDS. USE THIS PAGES CONTENTS AT YOUR OWN RISK.

MED-LEGAL RERORT REQUIRMENTS:

CCR 10606
LC 4628 No more Ghost Writing.

WHEN TO PERFORM A PANEL QME:

Whenever a "dispute" arises regarding the PTP's request for medical treatment (the treatment was not authorized or the treatment request was modified) or if the injury is claimed non-industrial by the insurer then a panel of QME doctors is requested from the DWC Medical Unit. Here's the Main types of examinations:

WHICH SCHEDULE TO USE: AMA or PDRS 1997

LC 4660 (d) states in pertinent part: "For compensable claims arising before January 1, 2005, the schedule as revised pursuant to changes made in legislation enacted during the 2003-04 Regular and Extraordinary Sessions shall apply to the determination of permanent disabilities when there has been either no comprehensive medical-legal report or no report by a treating physician indicating the existence of permanent disability, or when the employer is not required to provide the notice required by Section 4061 to the injured worker.

Therefore, t he new AMA schedule applies where there has been (1) no med-legal report, or no treating physician report indicating the existence of permanent disability - unless TTD has been paid and has been ended (or should have been) due to an event which triggered the requirement to send a notice under LC 4061, i.e., the "your TTD is ending and . . . . " notice.

Read LC 4061.

WHAT INJURIES ARE DISCUSSED IN THE QME REPORT:

LC 4062.3 (i) states in pertinent part: "The medical evaluation shall address all contested medical
issues arising from all injuries reported on one or more claim forms
prior to the date of the employee's initial appointment with the
medical evaluator."

EARLIEST A MEDICAL-LEGAL MAY BE PERFORMED: 61 days

LC 4621 (b) and (c) state:
(b) Except as provided in subdivision (c) and Sections 4061 and 4062, no comprehensive medical-legal evaluations, except those at the request of an employer, shall be performed during the first 60 days after the notice of claim has been filed pursuant to Section 5401, and neither the employer nor the employee shall be liable for any expenses incurred for comprehensive medical-legal evaluations performed within the first 60 days after the notice of claim has been filed pursuant to Section 5401.
(c) Comprehensive medical-legal evaluations may be performed at any time after the claim form has been filed pursuant to Section 5401 if the employer has rejected the claim.

MAIN CODE & REGULATION:

CCR 9785 (b) (4) "If the claims administrator disputes a medical determination made by the primary treating physician, the dispute shall be resolved under the applicable procedures set forth at Labor Code sections 4610, 4061 and 4062."

LC 4060 MedLegal for AOE/COE Disputes: Compensability
LC 4061 MedLegal for when CA disputes PTP's PD Recommendations:
LC 4062 MedLegal for IW Objections to UR Denial to PTP Medical Determinations.
LC 4062.1 Unrepresented QME process and Time deadlines.
LC 4062.2 Represented QME/AME Process.
LC 4610 Utilization Review Dispute
CCR 9793 Who can Bill for Medical Legal Fees (The PTP CAN if...)
CCR 10606 Report Contents
CCR 9795 MedLegal Fee Schedule
Otis vs. City of Los Angeles (1980) WCAB En Banc
LC 4620 What Constitutes a Med-Legal Expense.
LC 4625 Prompt Payment Med-Legal Expense & Reimbursement Overpay.

Therefore, a medical opinion that is internally inconsistent is not substantial medical evidence, and, therefore, cannot be relied upon to support a decision (CF Jones v. WCAB (1968) 33 CCC 221) (Vera v. Sapper Construction; and SCIF (2005) SDO 0318989 WCAB Panel Decision).

REQUESTING THE QME APPOINTMENT: [ CCR 30, LC 4061, LC 4062, LC 4610 ]

PTP CAN HELP SELECT P-QME: [So can QME if he is the PTP, maybe]

CCR 31 (b) states: "The unrepresented employee shall make an appointment request with a QME listed on the panel and may consult with his or her primary treating physician as to an appropriate QME specialist. Neither the claims representative nor a representative of the employer nor a QME may discuss the selection of a panel QME with an unrepresented worker at any time."

CAN A QME DOCTOR ASSIST THE PATIENT IN SELECTING A P-QME FOR HIS PATIENT?

It would appear, in my lay opinion, yes. Here's what Hannan says:

"Any physician who has served as the employee's primary treating physician and who is chosen for that employee's panel, must disqualify him or herself, and the employee may request a replacement. The selection form will be accompanied by an instruction form directing the employee to select a QME from the panel and call his or her office for an appointment. Neither the claims administrator, nor a representative of the employer, nor a QME (unless the QME is the employee's treating physician per Labor Code section 139.2(h)) may discuss or make the selection of a panel QME with an unrepresented worker at any time." (bold emphasis added)(See Hanna, Vol. 2, Div. II, Chap. 22.06, (1)(b).)

Plus CCR 31 (b) states: "The unrepresented employee shall make an appointment request with a QME listed on the panel and may consult with his or her primary treating physician as to an appropriate QME specialist. Neither the claims representative nor a representative of the employer nor a QME may discuss the selection of a panel QME with an unrepresented worker at any time."

Per Labor Code section LC 4660, AMA GUIDES - 5th IS IN!

Labor Code section 4660 (b) (1): "For purposes of this section, the "nature of the physical injury or disfigurement" shall incorporate the descriptions and measurements of physical impairments and the corresponding percentages of impairments published in the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (5th Edition)."

REPEAT QME EVALUATIONS:

CCR 30 (d)(2): "After the QME evaluation is complete, either the employee or the employer may object to any new or unresolved issue. The parties shall utilize the same QME to the extent possible."

LC 4062.3 (j): "If, after a medical evaluation is prepared, the employer or the employee subsequently objects to any new medical issue, the parties, to the extent possible, shall utilize the same medical evaluator who prepared the previous evaluation to resolve the medical dispute."

APPOINTMENT NOTIFICATION FORM: [ CCR 34 ] You have 5 working days to get that form faxed the CA and IW! Also QME must do QME at location listed on the panel list:

CCR 34 (a) states in relevant part, "This completed form shall be postmarked or sent by facsimile to the employee and the claims administrator or, if none, the employer within 5 working days of the date the appointment was made. Failure to comply with this requirement shall constitute grounds for denial of reappointment under Section 51."

(b) The QME shall schedule an appointment for a comprehensive medical-legal examination which shall be conducted only at the medical office listed on the panel selection form.

(c) The QME shall include within the notification whether a Certified Interpreter, as defined by Labor Code Section 5811 and subject to the provisions of section 9795.3 of this Title, is required and specify the language. The interpreter shall be arranged by the party who is to pay the cost as provided for in Section 5811 of the Labor Code.

History: Amendment of subsection (a) and (c) effective 5/14/00.

EXCHANGE OF INFORMATION:

CCR 35 mandates that the insurer "shall" provide all medical records in their possession, and all medical records from the PTP to the panel QME within 20 days.

EX PARTE COMMUNICATION: RECORDS & COMMUNICATION W/ QME/AME:

Labor Code section 4062.3 covers this topic and states:

(a) Any party may provide to the qualified medical evaluator selected from a panel any of the following information:
(1) Records prepared or maintained by the employee's treating physician or physicians.
(2) Medical and nonmedical records relevant to determination of the medical issue.

(b)Information that a party proposes to provide to the qualified medical evaluator selected from a panel shall be served on the opposing party 20 days before the information is provided to the evaluator. If the opposing party objects to consideration of nonmedical records within 10 days thereafter, the records shall not be provided to the evaluator. Either party may use discovery to establish the accuracy or authenticity of nonmedical records prior to the evaluation.

(c) If an agreed medical evaluator is selected, as part of their agreement on an evaluator, the parties shall agree on what information is to be provided to the agreed medical evaluator.

(d) In any formal medical evaluation, the agreed or qualified medical evaluator shall identify the following:
(1) All information received from the parties.
(2) All information reviewed in preparation of the report.
(3) All information relied upon in the formulation of his or her opinion.

(e) All communications with an agreed medical evaluator or a qualified medical evaluator selected from a panel before a medical evaluation shall be in writing and shall be served on the opposing party 20 days in advance of the evaluation. Any subsequent communication with the medical evaluator shall be in writing and shall be served on the opposing party when sent to the medical evaluator.

(f) Ex parte communication with an agreed medical evaluator or a qualified medical evaluator selected from a panel is prohibited. If a party communicates with the agreed medical evaluator or the qualified medical evaluator in violation of subdivision (e), the aggrieved party may elect to terminate the medical evaluation and seek a new evaluation from another qualified medical evaluator to be selected according to Section 4062.1 or 4062.2, as applicable, or proceed with the initial evaluation.

RECORDS TO THE QME & QME COMMUNICATION WITH PTP: [ CCR 35 ]

CCR 35 (d) states in relevant part, "In the event that a party fails to provide to the QME any relevant medical record which the QME deems necessary to perform a comprehensive medical-legal evaluation, the QME may contact the treating physicians or other health care provider, to obtain such record(s)."

APPORTIONMENT: Labor Code §§§ 4663 & 4664 [old 4750 ]

On April 19, 2004, Governor Schwarzenegger signed into law Senate Bill No. 899 (2003-2004 Reg. Sess.) Chapter 34 Section 33 of SB 899 repealed LC 4663 (apportionment rules). Chapter 34 Section 34 of SB 899 added the "new" LC 4663 (and LC 4664) that now mandates that apportionment is to be based upon "causation," and not "pre-existing disability" to the open labor market" or the "normal" or natural progression of underlying disease." [ (Stats. 2004, ch. 34 (Sen. Bill No. 899), §§ 35 & 37, pp. 151, 152.) ]

Under this new apportionment system, which is mandated to apply prospectively to ALL dates of injury (aka: Retroactively) where a "final judgment" has not been ordered by a Workers' Compensation Administrative Law Judge (WCJ) per Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274 [70 Cal.Comp.Cases133], Apportionment is to be made by using PERCENTAGES of what part of the permanent impairment or disability is due to the actual injury and what part is due to "other factors," such as underlying degenerative disease, obesity, and prior disability awards... you name it.

LC 4664, in a nut shell, states that if the injured worker had a previous industrial disability award, then that level of disability is presumed to exit at the time of the new injury - regardless of any "self-rehabilitation" that may have occurred.

MEDICAL REHABILITATION:

Pasquotto vs. Haward Lumber (2006) GRO 0028123 & GRO 0028394 WCAB En Banc: "Even if an injurded imployee establishes medical rehabilitation from his or her prior industrial injury, this does not necessarily mean that the prior industrial injury can not be an "other factor" that is "causing" some of the employees present disability under section 4663. This, however, is an issue of proof requiring substancial medical evidence. (Escobedo v. Marshalls, supra, 70 CCC 604)"

Labor Code §4663:

(a) Apportionment of permanent disability shall be based on causation.

(b) Any physician who prepares a report addressing the issue of permanent disability due to a claimed industrial injury shall in that report address the issue of causation of the permanent disability.

(c) In order for a physician's report to be considered complete on the issue of permanent disability, it must include an apportionment determination. A physician shall make an apportionment determination by finding what approximate percentage of the permanent disability was caused by the direct result of injury arising out of and occurring in the course of employment and what approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury, including prior industrial injuries .

If the physician is unable to include an apportionment determination in his or her report, the physician shall state the specific reasons why the physician could not make a determination of the effect of that prior condition on the permanent disability arising from the injury . The physician shall then consult with other physicians or refer the employee to another physician from whom the employee is authorized to seek treatment or evaluation in accordance with this division in order to make the final determination.

(d) An employee who claims an industrial injury shall, upon request, disclose all previous permanent disabilities or physical impairments.

Labor Code §4664:

(a) The employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment.

(b) If the applicant has received a prior award of permanent disability, it shall be conclusively presumed that the prior permanent disability exists at the time of any subsequent industrial injury. This presumption is a presumption affecting the burden of proof.

(c) (1) 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 unless the employee's injury or illness is conclusively presumed to be total in character pursuant to Section 4662. As used in this section, the regions of the body are the following:

(A) Hearing.

(B) Vision.

(D) The spine.

(E) The upper extremities, including the shoulders.

(F) The lower extremities, including the hip joints.

(G) The head, face, cardiovascular system, respiratory system, and all other systems or regions of the body not listed in subparagraphs (A) to (F), inclusive.

(2) Nothing in this section shall be construed to permit the permanent disability rating for each individual injury sustained by an employee arising from the same industrial accident, when added together, from exceeding 100 percent.

MEDICAL TREATMENT NOT APPORTIONABLE:

In Granado v. Workmen's Comp. App. Bd. (1968) 69 Cal.2d 399 [71 Cal.Rptr. 678, 445 P.2d 294], the California Supreme Court considered the case of an industrially injured worker whose preexisting nonindustrial condition contributed to his need for treatment. The Board apportioned 50 percent of the cost of medical treatment to a nonindustrial injury. (1) The Granado court annulled the Board's decision, stating: "There can be no doubt that medical expense is not apportionable. . .. So long as the treatment is reasonably required to cure or relieve from the effects of the industrial injury, the employer is required to provide the treatment, and treatment for nonindustrial conditions may be required of the employer where it becomes essential in curing or relieving from the effects of the industrial injury itself. [Citation.] Medical treatment unrelated to the industrial injury need not be furnished by the employer. [Citation.] If medical expense reasonably necessary to relieve from the industrial injury were apportionable, a workingman, who is disabled, may not be able to pay his share of the expenses and thus [may] forego treatment. Moreover, the uncertainties attendant to the determination of the proper apportionment might cause employers to refuse to pay their share until there has been a hearing and decision on the question of apportionment, and such delay in payment may compel the injured workingman to forego the prompt treatment to which he is entitled." ( Id. at pp. 405-406, italics added.)

DOCTORS MUST NOT SPECULATE:

King v. Workers' Comp. Appeals Bd., 231 Cal. App. 3d 1640

"Apportionment under Labor Code section 4663 may not be based on speculation as to the hypothetical causes of a disability that might occur at some indefinite time in the future. ( Calhoun v. Workers' Comp. Appeals Bd., supra, 127 Cal.App.3d at p. 9; Gay v. Workers' Comp. Appeals Bd., supra, 96 Cal.App.3d at p. 562.)" King v. Workers' Comp. Appeals Bd., 231 Cal. App. 3d 1640

"(1a) For a physician's evaluation to support apportionment under Labor Code section 4750, the physician must describe in detail the exact nature of the preexisting disability and the basis for his opinion. ( Ditler v. Workers' Comp. Appeals Bd. (1982) 131 Cal.App.3d 803, 812 [182 Cal.Rptr. 839]; Calhoun v. Workers' Comp. Appeals Bd. (1981) 127 Cal.App.3d 1, 10 [179 Cal.Rptr. 198]; Callahan v. Workers' Comp. Appeals Bd. (1978) 85 Cal.App.3d 621, 630 [149 Cal.Rptr. 647].)" King v. Workers' Comp. Appeals Bd., 231 Cal. App. 3d 1640

TIME DEAD-LINES FOR QME / AME REPORTS: GET THOSE MEDICAL-LEGAL REPORTS IN ON TIME!

You have 30 days to get the first QME report out the door, via proof of service. More explicitly, CCR section 38 subdivision (c) states in pertinent part:

"For injuries on or after January 1, 1994, the time frame for comprehensive medical-legal evaluations to be prepared and submitted shall not exceed 30 days after the QME or AME has seen the employee or otherwise commenced the comprehensive medical-legal evaluation procedure."

For Supplemental reports, you have 60 days. More explicitly, 8 CCR section 38 (f) states in pertinent part:

"The time frame for supplemetal reports in unrepresented cases shall be no more than 60 days from the date of a written or electronically transmitted request to the physician by a party."

In relevant part, Labor Code section 4065.5 states:

Code: 4062.5 Title: QME failure re timely report History: Amended by Stats 2004, CH 34, effective 4/19/04
"If a qualified medical evaluator selected from a panel fails to complete the formal medical evaluation within the timeframes established by the administrative director pursuant to paragraph (1) of subdivision (j) of Section 139.2, a new evaluation may be obtained upon the request of either party, as provided in Sections 4062.1 or 4062.2. Neither the employee nor the employer shall have any liability for payment for the formal medical evaluation which was not completed within the required timeframes unless the employee or employer, on forms prescribed by the administrative director, each waive the right to a new evaluation and elects to accept the original evaluation even though it was not completed within the required timeframes."

However, it would seem that you must object to the report BEFORE it comes out (see (KERNS) 64 CCC 1526). Same for this case: Stevedoring Services of America vs. W.C.A.B (1999) 64 CCC 1526 (WD). In that case the WCJ held that although the AME violated Sec. 38, an objection by defendant after receiving the report was untimely and waived.

Post Termination Claims: LC 3600 (a) (10)

LC 3600 (a) (10) Except for psychiatric injuries governed by subdivision (e) of Section 3208.3, where the claim for compensation is filed after notice of termination or layoff, including voluntary layoff, and the claim is for an injury occurring prior to the time of notice of termination or layoff, no compensation shall be paid unless the employee demonstrates by a preponderance of the evidence that one or more of the following conditions apply:

Substancial Evidence:

The term "substantial evidence" means evidence "which, if true, has probative force on the issues. It is more than a mere scintilla, and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion ... It must be reasonable in nature, credible, and of solid value ..." (Insurance Co. of North America v. Worker's Comp. Appeals Bd. (1981) 122 Cal. App. 3d 905, 910, italics in original, quotation marks omitted; Estate of Teed (1952) 112 Cal. App. 2d 638, 644.) It has been said that "The substantial evidence test is not a vehicle for [a court] to superimpose its judgment upon that of the Board." (Mendoza v. Workers' Comp. Appeals Bd. (1976) 54 Cal. App. 3d 820, 823.) The court may not simply isolate evidence which supports or disapproves the board's conclusions and ignore other relevant facts which rebut or explain the supporting evidence, but must examine the entire record. (Garza v. Workmen's Comp. App. Bd. (1970) 3 {569}Cal. 3d 312, 317 [35 Cal. Comp. Cases 500, 90 Cal. Rptr. 355, 475 P.2d 451]; LeVesque v. Workmen's Comp. App. Bd. (1970) 1 Cal. 3d 627, 637 [36 Cal. Comp. Cases 16, 83 Cal. Rptr. 208, 463 P.2d 432]; cf. Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal. 3d 721, 727 [175 Cal. Rptr. 626, 631 P.2d 60].) The board's findings on factual questions are conclusive if supported by substantial evidence. (Martori Brothers, supra.) From Braewood Convalescent Hospital v. WCAB( Bolton) (1983) 48 CCC 566, 193 Cal. Rptr. 157, 666 P.2d 14 Supreme Court In Banc

SELF TESTIMONY:

"While the interest of a witness may be a factor warranting rejection of even uncontradicted evidence in some circumstances, the interest of a party in obtaining relief does not automatically render his testimony questionable. (Leonard v. Watsonville Community Hosp. (1956) 47 Cal. 2d 509, 518 [305 P.2d 36].) Further, when a party testifies to facts favorable to his own position and any contradictory evidence is within the ability of the opposing party to produce, the latter party's failure to bring forth such evidence will require acceptance of the uncontradicted testimony unless there is some other rational basis for disbelieving it. (Martori Brothers, supra, 29 Cal. 3d at p. 728.) Inasmuch as none of applicant's evidence has been contradicted or impeached, we accept as true the import of such evidence. (McAllister v. Workmen's Comp. App. Bd. (1968) 69 Cal. 2d 408, 413 [33 Cal. Comp. Cases 660, 71 Cal. Rptr. 697, 445 P.2d 313]; Sully-Miller Contracting Co. v. Workers' Comp. Appeals Bd. (1980) 107 Cal. App. 3d 916, 925 [45 Cal. Comp. Cases 683, 166 Cal. Rprt. 111]; Amico v. Workmen's Comp. Appeals Bd. (1974) 43 Cal. App. 3d 592, 598 [39 Cal. Comp. Cases 845, 117 Cal. Rptr. 831].)" From Braewood Convalescent Hospital v. WCAB( Bolton) (1983) 48 CCC 566, 193 Cal. Rptr. 157, 666 P.2d 14 Supreme Court In Banc

Opinion of One Physician Can be Substancial Evidence:

"...it is well established that the relevant and considered opinion of one physician may constitute substantial evidence in support of a factual determination of the WCAB. (LeVesque, supra, 1 Cal. 3d at p. 639; Smith v. Workmen's Comp. App. Bd. (1969) 71 Cal. 2d 588, 592 [34 Cal. Comp. Cases 424, 78 Cal. Rptr. 718, 455 P.2d 776]; Nuelle v. Workers' Comp. Appeals Bd. (1979) 92 Cal. App. 3d 239, 246 [44 Cal. Comp. Cases 439, 154 Cal. Rptr. 580]; Market basket v. Workers' Comp. Appeals Bd. (1978) 86 Cal. App. 3d 137, 144 [43 Cal. Comp. Cases 1186, 149 Cal. Rptr. 872].) From Braewood Convalescent Hospital v. WCAB( Bolton) (1983) 48 CCC 566, 193 Cal. Rptr. 157, 666 P.2d 14 Supreme Court In Banc

PTP BILLS FOR MEDICAL-LEGALReport:

On 06-12-06 I evaluated Mr. Gregorio G at my San Jose office ( 1913 Tully Road, San Jose, CA 95122). I am this patient’s primary treating physician (PTP) and have been asked by the patient to address, among other things, the disputed issues raised by SCIF in a medical-legal report. Per Title 8 CCR § 9793(c)(2), the PTP is allowed to produce and bill for said report.

My Disclosure Statement for Medical-Legal Reports: [Here]

PAYMENT, DEFINITIONS & RULES OF MEDICAL-LEGAL BILLING: [ LC 4622-4628 ]

Otis v. City of Los Angeles (1980) 45 Cal.Comp.Cases 1132 (Board en banc):

Oh my, look what I discovered! I can't wait to test this "oldie but goodie" out:

MEDICO-LEGAL COSTS—IN ORDER TO CONTEST THE REASONABLENESS OR NECESSITY OF MEDICO-LEGAL EXPENSES INCURRED BY AN INJURED EMPLOYEE, THE CONTESTING EMPLOYER OR WORKERS' COMPENSATION INSURER MUST (1) FILE A WRITTEN OBJECTION WITHIN 60 DAYS FROM RECEIPT OF THE BILL, (2) PROVIDE A COPY TO THE HEALTH CARE PROVIDER AND THE EMPLOYEE OR HIS ATTORNEY, AND (3) CLEARLY SET FORTH THE REASONS FOR THE OBJECTION. [See generally Hanna, California Law of Employee Injuries and Workmen's Compensation, Vol. 1, § 12.03[8].]

PENALTIES—WHERE A TIMELY CONTEST OR OBJECTION IS MADE TO A BILL FOR MEDICO-LEGAL EXPENSES, THE EMPLOYER OR INSURER MUST PAY THE PORTION OF THE BILL IT CONCEDES IS REASONABLE AND DUE WITHIN 60 DAYS AFTER THE BILLS' RECEIPT OR THE STATUTORY 10% PENALTY WILL BE IMPOSED, AND INTEREST WILL CONTINUE TO ACCRUE, ON THE CONCEDED PORTION OF THE BILL ON WHICH PAYMENT IS THUS UNREASONABLY DELAYED. [See generally Hanna, California Law of Employee Injuries and Workmen's Compensation, Vol. 1, § 12.03[8].]

PENALTIES—WHERE ONLY PART OF A BILL FOR MEDICO-LEGAL EXPENSES IS PAID WITHIN THE 60-DAY STATUTORY PERIOD, THE STATUTORY PENALTY AND INTEREST THAT MAY BE IMPOSED ON THE UNPAID BALANCE OF THE BILL IS PAYABLE TO THE PROVIDER OF THE BENEFITS REPRESENTED BY THE BILL WHETHER THE PROVIDER BE A DOCTOR, INTERPRETER, OR THE EMPLOYEE'S ATTORNEY WHO ADVANCED THE COSTS. [See generally Hanna, California Law of Employee Injuries and Workmen's Compensation, Vol. 1, § 12.03[8].]

Opinion

APPEALS BOARD EN BANC OPINION

Hurtado stated in relevant part: "While no prior appellate court has had occasion to interpret Labor Code section 4622, the Board considered its predecessor statute in the in bank decision of Otis v. City ofLos Angeles, supra, 45 Cal.Comp.Cases 1132, a decision which it has never overruled. Otis held that pursuant to the statute, in order to contest the reasonableness or necessity of medical-legal expenses incurred by an injured employee, a contesting employer/carrier must (1) file a written objection within 60 days from receipt of the bill, (2) provide a copy to the health care provider and the employee or his attorney, and (3) clearly set forth the reasons for the objection. Otis set forth in some detail legislative concerns and considerations in enacting the predecessor to Labor Code section 4622. (See also Willis v. City of Los Angeles (1982) 47 Cal.Comp.Cases 759.) [P] The reasoning of the Otis decision continues to be sound and in keeping with the constitutional objective of providing workers' compensation benefits expeditiously. It is of more than theoretical importance in the workers' compensation system that medical providers be paid promptly and treated fairly, for without them the entire benefit system would fail. The provisions for early protest as a requirement for subsequent recovery of medical-legal expenses paid to medical providers has reflected legislative recognition that medical providers not only render necessary services, they operate businesses which cannot be routinely dependent upon revenues subject to recovery by employer/carriers at some later unspecified time."

Kunz vs. Golden Eagle Insurance (2002) 67 CCC 1588 WCAB En banc: "First, there are significant differences between medical-legal billings and medical treatment billings. A defendant may be liable for a medical-legal billing even where it is ultimately determined that there is no industrial injury or that the employee’s claim is barred by the statute of limitations. (Subsequent Injuries Fund v. Industrial Acc. Com. (Roberson) (1963) 59 Cal.2d 842, 843 [28 Cal.Comp.Cases 139, 139-140]; Beverly Hills Multispecialty Group, Inc. v. Workers’ Comp. Appeals Bd. (Pinkney) (1994) 26 Cal.App.4th 789, 802 [59 Cal.Comp.Cases 461, 471]; Turudich v. Industrial Acc. Com. (1965) 237 Cal.App.2d 455, 457-459 [30 Cal.Comp.Cases 316, 318-319].) A defendant, however, will not be liable for a medical treatment billing if there was no industrial injury (Lab. Code, §4600) or if the injury claim is time-barred. (Lab. Code, §5404.) Also, because medical-legal cost claims generally are relatively simple, the policy adopted in Otis to largely remove such claims from the litigation process was appropriate."

LC 4622(a): "All medical-legal expenses for which the employer is liable shall, upon receipt by the employer of all reports and documents required by the administrative director incident to the services, be paid to whom the funds and expenses are due, as follows: (a) Except as provided in subdivision (b), within 60 days after receipt by the employer of each separate, written billing and report, and where payment is not made within this period, that portion of the billed sum then unreasonably unpaid shall be increased by 10 percent, together with interest thereon at the rate of 7 percent per annum retroactive to the date of receipt of the bill and report by the employer. Where the employer, within the 60-day period, contests the reasonableness and necessity for incurring the fees, services, and expenses, payment shall be made within 20 days of the filing of an order of the appeals board directing payment." (Full Labor Code 4622 Here)

LC 4625. (a) Notwithstanding subdivision (d) of Section 4628, all charges for medical-legal expenses for which the employer is liable that are not in excess of those set forth in the official medical-legal fee schedule adopted pursuant to Section 5307.6 shall be paid promptly pursuant to Section 4622. (b) If the employer contests the reasonableness of the charges it has paid, the employer may file a petition with the appeals board to obtain reimbursement of the charges from the physician that are considered to be unreasonable.

DEFENDANT MAY RAISE ISSUES NOT ORIGINALLY RAISED:

Kunz (supra) "In particular, under sections 4620 et seq., a defendant now can raise (and the Board can consider) certain objections to a medical-legal billing, even if those objections were not specifically raised within 60 days of the receipt of the billing."

Med-Legal Penalty High-lights: since QMEs are not treating, there appears to be a error in the law that does not allow for the recovery of the $100.00 filing fee that treaters get per LC 4603.2(b)(1)(B). But, try this: argue that the lein filing fee is a cost betwen the parties and may be allowed by the appeals board via LC 5811 (a), which states: "No fees shall be charged by the clerk of any court for the performance of any official service required by this division, except for the docketing of awards as judgments and for certified copies of transcripts thereof. In all proceedings under this division before the appeals board, costs as between the parties may be allowed by the appeals board."

CCR 9794(c) A claims administrator who contests all or any part of a bill for medical-legal expense, or who contests a bill on the basis that the expense does not constitute a medical-legal expense, shall pay any uncontested amount and notify the physician or other provider of the objection within sixty days after receipt of the reports and documents required by the administrative director. Any notice of objection shall include or be accompanied by all of the following:

(1) An explanation of the basis for the objection to each contested procedure and charge. The original procedure codes used by the physician or other provider shall not be altered. If the objection is based on appropriate coding of a procedure, the explanation shall include both the code reported by the provider and the code believed reasonable by the claims administrator, and shall include the claim's administrator's rationale as to why its code more accurately reflects the service provided. If the claims administrator denies liability for the entire medical-legal expense, the objection shall set forth the legal, medical or factual basis for the denial." [CCR 9794(c)]
(Full CCR 9794 Here)

Labor Code & Regulations: Full Versions (Keep Update at the DWC's Web Site: [Here]

LC 5307.6 Med-Legal Fee Schedule Adoption & Payment Rules
CCR 9795 Reasonable MEDLEGAL Fees.
LC 4620 What Constitutes a Medical-Legal Expense.
LC 4628 More things a Med-legal report needs
CCR 38 Time Dead-lines for QME report (also LC 139.2(j)(1)(A))
LC 5703 & LC 4628 Reports as Evidence [what needs to be in the report.]
CCR 31 QME Selection
CCR 40 Mandatory disclosures to IW via p-QME.
CCR 31.5 QME Replacement Requests: 60 days to schedule QME patient [see CCR 33 as well]
LC 4660 The Birth of AMA Guides 5th (via SB 899) & Which Rating Schedule to Use (PDRS or AMA)
LC 3600 AOE/COE
LC 15 "Shall" is it.

LC 139.2 QME Rules and Time Frames
LC 4628 QME Med-Legal Duties Disclosures Rules
LC 4620 Medical-Legal Expense - Defined 'to prove or disprove a contested claim.'
LC 4621 Medical-Legal Expense - Not too Early unless rejected
LC 4622 Employers Liability for MedLegal Penalty
CCR 9793 Medlegal Expense & Definitions
CCR 9794 Reimbursement/Denial of MEDLEGAL Expenses.
CCR 9795 Reasonable MEDLEGAL Fees.
LC 5307.6 Med-Legal Fee Schedule Adoption & Payment: THE MAIN CODE
LC 4620 Medical-Legal Expense
CCR 10606 Report Contents
LC 4060 MedLegal for AOE/COE Disputes: "a 4060 eval."
LC 4061 Evaluation of PD: If CA disputes PTP's PD recommendation:
LC 4062 Objection to Medical Determinations Made by PTP: QME Method
LC 4062.1 Unrepresented QME process and Time deadlines.
LC 4064 Employer's Liability for a Medlegal report. IW can buy a report.
LC 3202 Liberally Construed
LC 5950 & 5952 Right for Writ Review with DCA or Supreme Court & Reasons for Review
LC 5703: Allowed Evidence at the WCAB
LC 5307.27: ACOEM's Requirments for California... Do they really fulfill these?

Proof of Service: LC 5316 [CCP 1013(a)] & [CCP 2015.5]

WCAB DECISIONS: (Here's the list from our DWC:

Simi v. Sav-Max Foods (2005) 70 CCC 217 [WCAB en banc]: Brings back the AME/QME Dance for Rep. IWs who, for a while secondary to SB899, were left without avenue for QME.
Escobedo v. CNA Insurance (2005) 70 CCC 604 [WCAB en banc]:An indepth, binding, explaination of apportionment to causation. Plus why medical-legal reports needed to beefen up: "...a medical report is not substantial evidence unless it sets forth the reasoning behind the physician’s opinion, not merely his or her conclusions."

"We hold 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.

WCAB en banc decisions are binding precedent on all WCJs and Appeals Board Panels:

Cal. Code Regs., tit. 8, § 10341; Gee v. Workers’ Comp. Appeals Bd. (2002) 96 Cal.App.4th 1418, 1425, fn. 6.

PENALTY & INTEREST CALUCLATION:

Treatment Interest Formulae (10%): [ .000274 X Number of Day Late X Treatment Fees Owed = Interest Owed ] Now, add 15% of whole bill! THIS IS FOR TREATMENT BILLING.

Med-Legal Interest Formulae (7%): [ .000192 X Number of Days Late X Med-Legal Fees Owed = Interest Owed ] Now, add 10% of whole bill! THIS IS FOR MED-LEGAL BILLING ONLY!

For example: If the insured is 180 days late in paying your $1500.00 bill for medical treatment rendered, the Insurer now owes $73.98 in interest [.000274 X 180 X 1500.00 = 73.98] and $225.00 in penalty [.15 X 1500.00 = 225.00] . This totals to $298.98 in penalty & Interest. That's pretty good return on the dollar these days.

BILL YOUR REGULAR FEES: Federal Mogul Corp. v. WCAB (Whitworth) 38 C.C.C. 584 (WD 1973); Valdez v. WCAB 62 C.C.C. 1145 (WD 1997); and California Workers Compensation Law & Practice, 5th ed. P. 623.

Per Federal Mogul Corp. v. WCAB (Whitworth) 38 C.C.C. 584 (WD 1973), which was confirmed by Valdez v. WCAB 62 C.C.C. 1145 (WD 1997), if your medical treatment is refused or neglected, the insurance is not entitled to discounted Official Medical Fee Schedule. Furthermore, in the text "California Workers Compensation Law & Practice," 5th ed. P. 623, Judge St. Clair writes “the schedule does not necessarily apply to reimbursable, self-procured medical expenses… such self-procured medical expense ordinarily will be awarded as billed by the treating physician so long as the bill is within the physicians usual and customary fees.”

Remember to get that Doctor's First Report of Occupational Injury (DFR) out (via certified return-receipt mail) within 5 working days, and request all 24 visits within it! If you do, and the UR department blows the forthcoming UR Time-Dead Lines, legally the insurance has no ground to stand upon in cutting your care off before the 24 visits and QME and AME doctors are FORBIDDEN from considering these tardy UR comments about your request for all 24 visits (see more about this on the UR Page. ) Personally, I put my request in box #24; my verbiage goes something like this: I will treat the patient with the above mentioned interventions three times per week for two weeks, and then two times per week for six more weeks, if needed. The last six visits focus more on evaluation and management as I orchestrate further care between other needed medical specialist. I will write the permanent & stationary report when the patient becomes maximally medically improved.

AOE / COE: Arising out of Employment / in the Course of Employment

Tricky area: The first determination is whether the AOE/COE dispute is on a Medical, Factual, or Legal basis.

SERIOUS MEDICAL CONDITION: DON'T LET THAT MPN TAKE YOUR PATIENT OF 12 MONTHS

When an MPN is born, it/the insurer will try to pull treatment away from your control. by opining that the patient has a "serious medical condition," you can hold on to your patient for an additional 12 months.

LC 4616.2 holds the key to this plan. (naturally, your patient had better really have a serious medical condition like chronic pain as the result of DDD, disc herniation, stenosis, spondylolisthesis, etc...

4616.2(d)(3) The insurer or employer shall provide for the completion of treatment for the following conditions subject to coverage through the workers' compensation system:
(A) An acute condition. An acute condition is a medical condition that involves a sudden onset of symptoms due to an illness, injury, or other medical problem that requires prompt medical attention and that has a limited duration. Completion of treatment shall be provided for the duration of the acute condition.
(B) A serious chronic condition. A serious chronic condition is a medical condition due to a disease, illness, or other medical problem or medical disorder that is serious in nature and that persists without full cure or worsens over an extended period of time or requires ongoing treatment to maintain remission or prevent deterioration. Completion of treatment shall be provided for a period of time necessary to complete a course of treatment and to arrange for a safe transfer to another provider, as determined by the insurer or employer in consultation with the injured employee and the terminated provider and consistent with good professional practice. Completion of treatment under this paragraph shall not exceed 12 months from the contract termination date.

EMPLOYER'S DUTY TO NOTIFY EMPLOYEE:

LC3550:

CCR 9782:

CCR 9880: Employee Information Written Notice to New Employees.

CCR 9767.12: MPN Notification Requirements.

L.C. 4050 EVALS: NO LONGER ADMISSIBLE:

Although some DA and CA continue to try and use the infamous 4050 evaluations (that's where they send the IW out for a medical evaluation/report from their favorite doctor), that practice is no more (in my lay opinion) and was abolished by section 4062(a). As a QME, I will refuse to comment upon them unless ordered to do so by the WCJ or it is agreed upon by all parties--which never happens as the AA does not want these opinions into the records.

L.C. 4062(a): If the employee is represented by an attorney, a medical evaluation to determine the disputed medical issue shall be obtained as provided in Section 4062.2, and no other medical evaluation shall be obtained.

If the employee is not represented by an attorney, the employer shall immediately provide the employee with a form prescribed by the medical director with which to request assignment of a panel of three qualified medical evaluators, the evaluation shall be obtained as provided in Section 4062.1, and no other medical evaluation shall be obtained."

8 CCR § 34 (b): You Can Move the QME Location If the IW Makes Such a Request:

Per 8 CCR Section 34 (b) "The QME shall schedule an appointment for a comprehensive medical-legal examination which shall be conducted only at the medical office listed on the panel selection form. However, upon written request by the injured worker and only for his or her convenience, the evaluation appointment may be moved to another medical office of the selected QME if it is listed with the Medical Director as an additional office location."

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