DWC Announces New QME Panel Request Procedures and Forms – Important Practice Pointers
SB 863 brought many challenging changes to California Workers’ Compensation practice and procedure, many of which are just now on the cusp of becoming part of daily claims handling and legal defense of claims.
Revisions to the Labor Code §4062.2 panel QME process require that an objection be made which meets specific parameters; however the previous requirement to first offer an AME is eliminated.
Where injury AOE/COE (i.e., compensability) is not in dispute the written objection must meet the requirements of Regulation 30(b) as follows:
1. The name of the treating physician.
2. The date of the treating physician’s report.
3. The specific dispute (e.g., TD, extent of PD, or entitlement to future medical care) to which there is an objection.
PQME evaluations required to make compensability decisions under Labor Code §4060 must make specific reference to the need for a compensability determination. This requirement concerns the compensability of the injury (i.e. AOE/COE); it does not apply to disputed body parts.
Please note the 3rd requirement under Regulation 30(b). This refers to whether or not the employee is entitled to receive future medical care and does not relate to the nature and extent of proposed medical treatment.
Allowing five (5) days for mailing, the QME panel may be requested on the 16th day from which the objection was made.
Disputed modalities of proposed treatment are specifically covered under the Labor Code §4610 utilization review process and is no longer subject to the PQME process. Beginning July 1, 2013, all disputes over entitlement to specific treatment modalities for all dates of injury are subject to independent medical review (IMR). The triggering date is not the date the physician makes the treatment request, but the date upon which the utilization review determination is made.
When submitting a panel QME request to the Medical Unit, a copy of your letter enumerating the specific objections must be attached or the request will be rejected. When time is of the essence and TD may be running, taking the time to do the objection right the first time to avoid a rejection of the panel request becomes particularly important.
The Office of Administrative Law will be reviewing proposed changes to the regulations governing the panel QME request process in the near future. In the meantime, the DWC has promulgated special forms for dates of injury on or after 1/1/2013; Form 105(a) is used for unrepresented employees and Form 106(a) for represented employees. After the regulations adopting these forms become final, they will be revised to replace the existing Forms 105 and 106 for all dates of injury, most likely on or before the expiration of the extension of the temporary regulations through October 1, 2013.
Questions regarding the panel QME process and its revisions under amended Labor Code §4062.2 may be directed to any GMK attorney.
GMK Proudly Announces San Francisco Bay Area Office
Goldman Magdalin & Krikes, LLP is pleased to announce the opening of our newest office in Burlingame as we expand our ability to provide legal services in the San Francisco Bay Area and throughout northern California.
Opening June 10, 2013, GMK-Burlingame is strategically located to provide ready access to WCAB district offices in San Jose, Oakland, San Francisco, Santa Rosa, Redding and Eureka. Together with our long-time Sacramento office the firm is meeting the demand and providing the necessary infrastructure to service the needs of the entire northern California workers’ compensation defense community.
The new Bay Area office will be supervised by co-managing partners Richard Goldman and Paul Magdalin. Located off the 101 freeway at the Anza Boulevard exit, the addition of GMK-Burlingame will allow us to locally service our clients’ needs in the San Francisco Bay Area while confirming our commitment to provide industry-leading legal representation throughout the entire state of California.
Goldman, Magdalin & Krikes, LLP
111 Anza Boulevard, Suite 308
Burlingame, CA 94010
Temporary Total Disability and Life Pension COLA Rates Increase Slightly for 2014
California's maximum temporary total disability rate in 2014 will increase to $1074.64 up from $1066.72 per week this year. The minimum TTD rate for 2014 will also increase to $161.19 up from $160.00.
Pursuant to Labor Code §4453 (a)(10), TTD annual increases are mandatory and are tied to an amount equal to the percentage increase in the statewide average weekly wage (SAWW). For 2014, the California State Average Weekly Wage had a modest increase to $1067.25 up from $1059.38.
TTD rate changes take effect on January 1 of each year. Workers with dates of injury on or after January 1, 2003 who are receiving life pensions or permanent total disability benefits would be entitled to have their rates adjusted based on changes in the SAWW. The life pension adjustment for 2014 requires a rate increase of 0.742%.
What this means for you
Claims personnel should review existing life pension and permanent total disability awards pursuant to these statutory annual increases, and be prepared to make the adjustment effective January 1, 2014.
To see the SAWW rates provided by the U.S. Department of Labor, go here: http://ows.doleta.gov/unemploy/content/data_stats/datasum13/DataSum_2013_1.pdf .
IDENTIFYING SUBROGATION OPPORTUNITIES
KEY TIPS FOR CLAIMS EXAMINERS
In workers’ compensation claims, subrogation means recovery of benefits paid from a third party in a civil lawsuit. This is a matter that may be missed by busy claims examiners. It is essential that these opportunities be taken advantage of by making sure that your subrogation rights are protected.
Subrogation may even exist where a compensable industrial injury ends up costing substantially more because it has become aggravated by the negligent act of a third-party long after the original work injury.
To avoid missing opportunities for subrogation recovery please note the following tips:
Subrogation Tip No. 1: Evaluate each claim for subrogation potential. Look for the negligent act of a third party which caused or aggravated an industrial injury. When subrogation is either suspected or identified, a third-party subrogation notice letter should be sent to the employee to preserve your subrogation rights.
A common occurrence of missed subrogation occurs when the injured employee, with or without an attorney, settles their third-party case without giving notice to the employer/insurer. If this occurs you may have difficulty in obtaining subrogation recovery from the third-party defendant. Typically the insurer will claim that they did not have notice of the subrogation claim prior to settlement, and leaving the workers compensation carrier with having to pursue a lawsuit against the employee for failure to give notice of the settlement. Even worse, the workers compensation carrier may be left with the sole remedy of relying on discretionary credit rights at the WCAB. See Board of Admin of PERS v. Glover (1983) 34 Cal. 3d 906.
Best practices include issuing a third-party notice letter or referring subrogation cases to outside counsel in the early stages rather than allowing the statute of limitations to rapidly expire.
Subrogation Key Tip No. 2: Subrogation rights extend to subsequent incidents that exacerbate underlying workers’ compensation injuries.
A typical example that often occurs is a subsequent automobile accident or other events that are the fault of a third party which exacerbate the applicant’s underlying work related injuries. Under Abdala v. Aziz (1992) 3 Cal. App. 4th 369, the workers’ compensation insurer can sue the third-party for the increase in workers’ compensation benefits paid as a result of the exacerbated injury.
It does not matter whether the subsequent incident is industrial or non-industrial as long as a third party is involved. In each instance, the opportunity exists to sue or seek reimbursement for the increase in medical treatment and indemnity caused by the subsequent incident. Moreover, apportionment will always be available and should be pursued for any increase in permanent disability as a result of a subsequent exacerbation caused by a third-party.
WHAT THIS MEANS FOR YOU
GMK is available to help you maximize your subrogation opportunities. If you have any questions regarding subrogation issues, please do not hesitate to contact Jeff Soll in our Woodland Hills office at (818) 755-0444 or email@example.com.
CALIFORNIA: NEW CHANGES – NEW FORMS
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For employers to properly implement recent statutory and regulatory changes, new forms should be used.
The Department of Homeland Security has issued a new I-9 form. Effective May 7, 2013 employers may no longer use any other version of the I-9 for new hires or for reverification. [Employers are not required to have current employees complete a new form.] This is now a two-page form. Completion of the employee’s phone number and e-mail address are optional. The employee also need not include his/her social security number unless the employer uses E-Verify. The Instructions, which must be provided to the employee along with the List of Acceptable Documents, are more detailed than in previous versions. The new I-9 can be found at http://www.uscis.gov/files/form/i-9.pdf .
Request to Inspect/Copy Personnel Records
As noted in the December 10, 2012 Alert the Labor Code has been revised to allow employees, including former employees, (or their representatives) to inspect or request a copy of their personnel records. The employer may use a form for such requests. The form should include: the name of the person making the request; the employee (or former employee) for whom the request is made; whether the request is for inspection or a copy; whether a former employee is requesting a copy by mail; the costs for which the employer can charge for copies and/or mailing; and a reference to the California Labor Code Section 1198.5. If you would like a sample form please contact Jeanne Flaherty (contact information below).
Written Commission Agreements
As of January 1, 2013 employers must have a written agreement, acknowledged by the employee, for all employees who are paid (in full or in part) on a commission basis. This should include: the basis on which commissions are paid; what the employee is required to do to receive a commission; when and how commissions will be paid; and the effect of termination of the employee. Since these agreements will vary widely by employee no one form can be used for all employers. However, if you would like a copy of a Checklist for Written Commission Agreements contact Jeanne Flaherty.
Leaves of Absence
In conjunction with the new California pregnancy disability regulations, the Department of Fair Employment and Housing has issued a Certification of Health Care Provider for Pregnancy Disability Leave, Transfer and/or Reasonable Accommodation. This form can be found at: http://www.dfeh.ca.gov/res/docs/FEHC%20Pregnancy%20Regs/Certification_for_Health_Care_Provider_Pregnancy%202-7-13.pdf
This form can be used in lieu of a federal Family and Medical Leave Act (FMLA) Certification of Health Care Provider form which has been modified to meet California requirements under the California Family Rights Act (CFRA) and pregnancy leave, transfer or accommodation.
With regard to other leaves under the FMLA and/or CFRA, new regulations on military leaves for a qualifying exigency or to care for a current or former service member include new federal Certification forms for these types of leaves. These can be found at: http://www.dol.gov/whd/forms/. Unlike leaves for an employee’s own or a family member’s serious health condition there is no California law on these military-related leaves so the federal forms are acceptable for use. The Notice of Eligibility and Rights & Responsibilities form (used for both FMLA and CFRA leaves) must be modified to reflect the requirements of both federal and California law. However, these forms may need to be updated to reflect the new definitions and other requirements for military-related leaves. We do not recommend using federal forms (without modification) for leaves that encompass the FMLA, CFRA and/or California Pregnancy Disability Leave (CPDL).
What this means for you
Use of appropriate forms can be very helpful in the administration of employment-related issues. However, it is important to ensure that the proper forms are used when required and that employer-created forms meet legal requirements. For assistance with these forms, please contact GMK employment law attorney Jeanne Flaherty at 818-755-0444 or firstname.lastname@example.org.
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