01/24/07 En Banc Decision Robs Future Medical Care Patients of Their Doctors. (Babbitt)
On 01/24/07, the WCAB published an En Banc decision that ordered an injured worker into an MPN despite an award for life-time medical care that pre-dated the genesis of MPNs.
In Babbitt v. Golden Eagle [(2007) WCAB En Banc; 72 Cal. Comp. Cases 70] the Workers' Compensation high court ruled that there was nothing that prohibited an insurer from ordering injured workers into an MPN; notwithstanding the fact such a transfer affectedly terminated a longstanding physician-patient relationship with a doctor of whom the injured worker trusted (this doctor was not a member of the MPN).
However, the decision was not unanimous, for, a well supported dissenting opinion, Commissioner Brass augured that that “common sense of the Supreme Court” should prevail in such cases as the establishment of a physician-patient relationship is strong enough to supersede the MPN law when it comes to awards granted before the passage of SB899 (the administrative law gave birth to MPNs).
More explicitly, the commissioner stated:
“The medical considerations of securing proper care and a speedy recovery must take precedence over the minimization of cost. A physician-patient relationship that inspires confidence in the patient is an ingredient aiding in the success of treatment. A physician-patient relationship that has been lawfully established should be preserved unless there has been a change of condition or the treatment being provided is defective or incomplete.”
Here's a link to the full ruling: Babbitt v. Golden Eagle
10/10/06: Knight v. Liberty Mutual -- WCAB En Bance Decision.
On 10/10/06, in an En Banc decision (this type of decision is the “law of the land” until the District Court of Appeals or Supreme Court of California change it), the seven commissioners of the WCAB handed down a unanimous ruling that allowed an injured worker to receive medical treatment outside of the employers Medical Provider Network (“MPN”). In Knight v. Liberty Mutual [(2006) WCAB En Banc; 71 Cal. Comp. Cases 1423] an injured worker, who was not satisfied with treatment from the company clinic, opted to change primary treating physicians to a doctor who was not a member of the employers MPN. Needless to say, the insurer refused to authorized any treatment outside of their MPN and left the patient without any treating doctor. The case went to trial and the administrative Law Judge ordered the insurer to pay for the treatment procured outside of the MPN. Aggrieved by the decision, the Insurer appealed and, in a surprise decision, the entire 7-member WCAB voted to take on this case. In their ruling—which has sent a sobering shockwave throughout the insurance industry—the WCAB agreed with the initial ruling and ordered that all medical treatment be paid. More explicitly, the commissioners stated:
“In sum, the record in this case compels the conclusion that defendant neglected and refused to provide reasonable medical treatment by failing to provide applicant with required notice of his rights under the MPN. Because reasonable medical treatment was neglected or refused, applicant is entitled to self-procure reasonable treatment and defendant is liable under section 4600(a) for that treatment.” (Emphasis added.)
Since (in my experience) 95% of all injured workers are not informed of their MPN rights, it would seem that most can treat outside of the dreaded MPNs without worry.
Empirically, however, much like 3rd Party Personally Injury Cases, you’re going to have to wait to get paid on such cases and will need a decent Hearing Rep (or you can do it yourself if you’ve got the time), as the insurer will most likely fight tooth and nail.
Here's a link to the full ruling: Knight vs. Liberty Mutual
06/30/06: Second Highest Court Orders ACOEM to Apply to All Past Medical Treatment, Hence Slashing Physician Accounts Receivables by an estimated 50-75%. (Sierra Pacific)
On 06/30/06, in a shocking decision, the 3rd District Court of Appeals ruled that the ultra-conservative ACOEM medical treatment guidelines be applied “retroactively” to all pending medical and durable medical equipment billing, no matter when the services were performed!
In Sierra Pacific vs. the WCAB [(Chatham) (2006) 71 Cal. Comp. Cases 714; District Court of Appeals 3rd], the justices unanimously ordered that the controversial ACOEM Guidelines—which purportedly slash customary medical care by an estimated 50-80%—applicable to all medical treatment and billing no matter what the date of those services. Despite well written amicus briefs from several prominent societies, the justices were not persuaded.
Again, this ruling will severely sting those of us who have a back-log of unsettled Workers’ Compensation Liens, for now those liens—many of which are for medical treatment that far exceeds the new treatment allotments—are probably worth only 50-75% of there value.
How were physicians suppose to know that 5-10 years into the future the “rules” for medical treatment would drastically and retroactively change and only allowed 50-75% of what was typically being billed.
Although the justices recognized the inequity of the decision, their comments of “… the medical provider is out of luck” demonstrated no sympathy.
Personally, I am filing no more DORs and letting my liens ride as much as possible in hopes that the Supreme Court will do the right thing. Remember, however, there are strict time limits for the filing, so don’t wait too long to file the lien.
Hopefully the Supreme Court will correct this gross unfairness that has occurred with past medical billings.
The good news, is that the Supreme Court of California has accepted this case on Appeal; however, it may be years before it is actually heard. UPDATE: 4/12/07: Supreme Court has refused to hear the case... the ruling stands!
08-10-06: New From WorkCompCentral.Com "SCIF gets Blasted"!
California -- Speier: State Fund Lobbying 'Height of Chutzpa': Top [08/10/06]
California state Sen. Jackie Speier delivered a tongue-lashing to the State Compensation Insurance Fund (SCIF) on Wednesday because of its opposition to legislation she introduced, Senate Bill 1452, that would make the quasi-public insurer subject to audits ordered by the Legislature.
"I am deeply trouble that an entity created by the state would hire a lobbying firm to restrict the access by the Legislature to answer the auditing questions that they have," said Speier, D-San Mateo. "I think SCIF's actions have been self serving, they've been deceitful and in my view, have been a violation of the public trust."
State Fund lobbyist George Miller dutifully took his medicine during the press conference, staying silent except to answer some questions from Speier and State Auditor Elaine Howle. Later, he told WorkCompCentral that the press conference was not necessary because State Fund doesn't oppose the bill; it simply wants an amendment to allow the carrier to petition the Joint Legislative Audit Committee to withhold any information that might disrupt the insurance market.
Miller said Speier likely called the press conference in reaction to an inflammatory editorial in a trade publication that accused State Fund of working behind the scenes to kill the audit bill. He said he spoke with her Tuesday night to explain that State Fund was not opposed to the measure, but by that time press releases had gone out.
"I don't fault her at all," Miller said. "I kind of expected her to temper or eliminate the rhetoric after yesterday evening, but they put out this press release based upon rumor and innuendo and that's the corner they were in."
As reported by WorkCompCentral Wednesday, Speier's Senate Bill 1452 generally aims to beef up the clout of the state auditor by requiring, for example, agencies to explain within one year what changes they have made because of critical state audits. One small provision in the bill explicitly states that the State Compensation Insurance Fund is subject to such audits of its business and administrative practices.
Speier said during the press conference that the amendment State Fund seeks would have it treated differently than all other entities under the scrutiny of the Bureau of State Audits. She said it was the "height of chutzpah" for a quasi-public insurer, whose executives and employees are state employees, to lobby to defeat a bill that would make it subject to audits requested by legislators.
"The fact that they would spend $178,000 trying to kill this bill suggest they have too much money to spend over there, or they have something to hide," Speier said.
Miller said State Fund actually spent $178,000 for all of the lobbying activities conducted by his firm in the past 18 months. He said only a portion of that was spent on Speier's bill.
State Auditor Elaine Howle had less vitriolic criticism of State Fund. She said in 2003 the Legislature ordered an audit of State Fund claims expenditures to craft an estimate on savings produced by reform measures that had passed earlier. She said State Fund objected to delivering some information, forcing her staff to divide the audit into two parts and delaying submission of the information for several months.
"I think Elaine pretty much stuck to the bill and didn't engage in a lot of hyperbole," Miller said. "I think the senator's response, if it were an accurate portrayal of the State Fund's position, then it would be as she said it was, the height of chutzpa."
Miller said he doesn't hold out much hope of blocking Speier's bill, even if it is passed without the amendment State Fund seeks. The measure has sailed through the Senate with a 38-0 vote on May 30 and cleared two Assembly committees with unanimous votes.
Miller said he has no idea whether he can persuade Gov. Arnold Schwarzenegger to veto the bill, and isn't sure if he will try.
"That's his call," Miller said. "I think there are a lot of good things in this bill."
-- By Jim Sams, WorkCompCentral Senior Editor
jim@workcompcentral.com
07-04-06: $100.00 Lien Filing fee is abolished as of 07-01-06.
07-02-06: 25% Medical-Legal Fee Hike[ML102 = $625, and ML103 = $937.50] : The deposition fee was also increased to $250.00 per hour (one hour minimum); however, no longer are you allowed to charge for the time needed to site ACOEM guidelines, WCAB cases, and Labor Code. Billing at ML-104's levels are going to be very difficult to obtain. Here's the new law of CCR section 9793 and 9795: [here]
07-01-06: ACOEM APPLIES TO ALL DATES OF INJURY: Sierra Pacific v. WCAB (Chatham)(2006) DCA: Many Chiropractors have just lost about 75% of their Workers' Comp accounts receivable since ACOEM will now be unfairly applied to all past treatment, and since ACOEM allows for one month and maybe some PRN care (via chapter 6) all those 6K + cases are destroyed. It is recommended NOT to file any liens until necessary and do NOT file any DORs until the Supreme Court weighs in. [Here]
"Thus, we interpret section 47 to require application of the ACOEM guidelines to determine reasonable medical treatment to all cases in which there is not an order as of the date of enactment of SB 899."
Things just got much tougher for medical liens!
I still must disagree with your contention that Chatham implies retroactivity of section 4604.5(d) – the 24 visit chiropractic cap. It was clearly the legislator’s intent that the 24 visit cap was only to apply to “injuries” after 01-01-2004. It’s language is clear and non-ambiguous as it states, “[ F]or injuries occurring on and after January 1, 2004, an employee shall be entitled to no more than 24 chiropractic, 24 occupational therapy, and 24 physical therapy visits per industrial injury.” [Emphasis Added.]
There was one phase within Chatham that hints that chiropractic liens must be taken on a case-by-case basis and are not blanket-reduced:
“… we cannot say that in all cases only less treatment will be presumed reasonable. The amendment to section 4600 did not “abolish the right to recover.” (Callet v. Alioto (1930) 210 Cal. 65, 68.)”
I do agree, however, that the insurers are going to “run wild” with this ruling and the values of pre-SB899 Chiro liens has taken a huge hit, as I can only support 34 chiropractic visits with Mercy and maybe some PRN visits with Mercy and Chapter 6 of ACOEM.
06-08-06: Nabors is out: [here]
Metoyer vs. Wilshire West Dental & Zenith Insurance Co. (2005) No. LBO 368875 WCAB panel decision:
Blow LC 3550 and CCR 9767.12, and the employer may lose the right to control medical care within an MPN.
"Additionally, we note that AD Rule 9767.12 provides for required notices to be given prior to an injury, specifically written notice of a medical provider network under Labor Code section 4616.3 prior to the implementation of an approved MPN, at the time of hire, or when an existing employee transfers into the MPN. While specific consequences for a failure to provide the required notice are not described in AD Rule 9767.12, when coupled with the aforementioned Labor Code section, the consequences herein may be justified."
Palm Medical Group Inc. Wins Lawsuit against SCIF (MPN) as of November 28, 2005.
1) Palm won by jury award $1.1 Million Dollar judgment of economic damages arising from Palm Being wrongly denied admission to SCIF's Provider list.
2) SCIF is now tagged by the court as having to follow 'fair procedure', which means its no longer biz as usual at SCIF. All decision related to who is on the SCIF MPN list has to be fair and rational. Applicants denied admission are entitled to a formal appeal which must be done be someone other than the individual that denied the original application. This applies to all vendors that do biz with SCIF (physicians, chiropractors, physical therapists, acupuncturists and even investigation services). This applies to all Vendors doing biz with SCIF in the specialized area of occupational medicine and its related services. They cannot just decide who they want to add, they must follow the Fair Procedure Doctrine. All SCIF decision have to be objective and rational. Not just one or the other. Applicants must have notice and opportunity to be heard.
3) Jury decided that Palm should be added to the SCIF PPN/MPN. Palm stood the burden of proof that it belongs as a preferred provider in occupational medicine.
4) The fabricated allegations made about Palm where shown to be completely false. The Fresno District Medical Liaison was impeached and discredited on the witness stand.
5) Palm was shown to be more cost effective that the average SCIF claim for the Fresno District Office. SCIF could find no evidence to show the jury that Palm cost SCIF any more money than any of its MPN providers or that it failed to return injured workers back to the job. Palm was shown to be above average and even SCIF's hired expert testified to Palm's good reputation. Palm is an outstanding Occupational Clinic.
6) Biz leaders testified that they used Palm, liked Palm and wanted to continue to use Palm. All these employers where SCIF insured. SCIF could find any employers to testify against Palm. Fresno Occupational Expert testified as to Palm superior clinic.
The lawsuit shows once again that Palm is a cost effective Occupational Clinic that has nothing but a perfectly clean record and above average outcome on treating the injured worker. The Medical Liaison at the Fresno District Office that blocked Palm application was shown to have failed to be fair and rational in her decision making and welded unchecked and corrupt power over the greater Fresno Area. She acutally refused to ever even give Palm an application, failed to provide Palm with SCIF's standards and criteria and failed to follow up on employers requesting Palm to be added to the SCIF list. How many didn't know SCIF has printed standards and criteria??? Request your copy today.
All providers, chiropractors, physical therapist ect may now use the Palm Decision to demand 'fair procedure' from State Fund. Utilize the State Fund web site www.scif.com and contact the medical liaison for the geographic area where your office is located. SCIF has 17 ditrict offices and each one has a medical liasion. Ask them for an application and fair procedure. If you are denied, ask for reasons that are objective and rational. You have the right to respond and be heard. A different person than the original decision maker must be involved and allow you an appeal process.
Palm just wanted to be treated honestly, SCIF instead desired to have a trail. Now State Fund must follow fair procedure and the burden that comes with that distinction. I will be posting additional information as related to how ALL healthcare providers in California can go step by step and be afforded fairness by State Fund. Now that Fairness is required by Law and nothing related to SB 899 can change State Funds obligation to be fair.
If you have issues also refer to Potvin v Met Life Insurance 2000 Ca Supreme Court Dicision and Fair Procedure Doctorine. You might need an attorney to pull the information from you. Use also the Palm v State Fund.
Today is a new day. Post questions i would be delighted to help everyone i can.....
Dr H.