GMK's New Glendale Office
Goldman, Magdalin & Krikes, LLP is excited to announce the opening of our new office in Glendale. We will be moving into our new location effective August 1, 2011.
Goldman, Magdalin & Krikes, LLP
500 North Central Avenue, Suite 650
Glendale, CA 91203
Phone: (818) 243-4800
Fax: (818) 243-4802
The attorneys who will be staffing the Glendale office are partners Jon Yudin and Aaron Turchin and associates Joan Son from our Brea office and Dacia Caswell from our Woodland Hills office.
GMK expects that this transition to our new office will further enhance the firm's ability to service the needs of our clients.
Observations from the CAAA Convention
Senior Partner Paul Magdalin attended the CAAA convention last weekend. The following are his comments regarding two cases that were the subject of extensive discussion and concern by the applicant’s attorneys and which therefore require close attention.
This case was a significant subject of discussion at the convention and was made more so when commissioners Moresi and Caplane (the latter was a dissenter in the opinion) allegedly privately admitted that they had overlooked the fact that some of the body parts claimed by Valdez were not admitted by the defendant. Accordingly this is going to be an area that will be attacked to preclude MPN treatment. The applicant’s attorneys are looking to avoid the MPN based on a Labor Code §4600 claim of "neglect of medical treatment" with respect to disputed body parts. Very often the employer or insurance carrier will inform the treating MPN physician that it is authorizing treatment only for specific admitted body parts and not others resulting in the disputed body parts not being addressed by the MPN treating physician.
The applicant's attorneys will be taking the position that “ignoring" the additional body parts is tantamount to a denial of treatment thus presumably giving them the opportunity to pull the applicant out of the MPN. In order to defend claims made by applicant’s attorneys that MPN physicians are failing to provide adequate medical treatment it is recommended that, if you have an applicant who is treating in the MPN and who subsequently alleges more body parts after litigating the case than were originally claimed, the treating MPN physician should be immediately made aware of that fact, asked to examine those additional body parts and submit a medical report commenting on the compensability, nature and extent of disability and need for medical treatment with regard to the newly alleged body parts. The resulting medical report from the MPN physician should force the applicant’s attorneys to object pursuant to Labor Code §§4061-4062.2, offer an AME or request a QME panel and/or seek another MPN physician pursuant to Labor Code §4616.3(c) instead of being able to pull the applicant from the MPN.
The applicant’s attorneys will also be attacking the MPN certification and notice requirements from the outset. Some of them already incorporate production demands in their formatted opening letters. In light of Valdez it is fairly certain that a WCJ is not going to ignore the fact that the defendant did not respond to a demand for production of MPN certification documentation and timely notification. In this regard, it is recommended that all available MPN documentation and notices are produced with the initial delivery of file documents to defense counsel along with confirmation as to whether or not the applicant was provided with the appropriate notice of the MPN at the time of hire and/or subsequent rollout and at the time of the injury. Please see Board Rule §9767.12 specifically concerning employee notification. Labor Code §§4616-4616.7 cover MPNs and the Board Rules concerning MPNs are contained in §§9767.1-9767.16.
Oral argument took place at the Court of Appeal during the last week of June 2011, a few days before the convention. A decision is expected by mid-to late September. There was an entire program developed to using the Montana factors [27 CCC 13 (1948)] to enhance, rather than defeat, the applicant's Ogilvie claim with regard to loss of earning capacity. The idea is not just to show 100% loss of earning capacity as a factor in the rating string but to contemporaneously argue 100% permanent and total disability using the applicant’s FEC expert. It is therefore recommended that as soon as the applicant’s attorney makes reference to Ogilvie the defendant should authorize the retention of an FEC expert to perform an analysis of the applicant at the earliest possible opportunity.
July 1 Medical Mileage Increase Affects Upcoming Medical Evaluations
California’s medical mileage rate will increase to $.55.5 per mile beginning on July 1, 2011. This means that, regardless of the date of injury, for travel on and after July 1, 2011, the reimbursement rate is $.55.5 per mile as opposed to the current rate of $.51 per mile.
PLEASE NOTE: If you have already advanced mileage at the rate of $.51 per mile to an applicant for a medical appointment that is scheduled to take place on or after July 1, 2011, you should now pay the $.04.5 per mile difference.
As our valued clients, we want to make sure that you are not placed in a penalty situation by underpaying medical mileage.
Please contact us if you have any questions.
Panel QME Dispute Process May Lead to Increased Litigation
The DWC Medical Unit has garnered recent attention for its procedures to expedite processing of panel QME requests by acting on each request as received without inquiry as to whether or not a prior panel or a different panel specialty has been requested in the same matter.
The DWC has now begun to issue letters advising the panel QME physician to cancel a scheduled appointment if an opposing party submits an objection to the examination until the dispute between the parties has been resolved by a workers’ compensation judge.
The revisions to Labor Code §4062, including the addition of Labor Code §§4062.1 and 4061.2 for injuries on or after April 19, 2004, significantly changed the practice of obtaining medical-legal evaluations in California. Rather than having the ability to select its own QME as was the procedure prior to SB 899, the party disputing a medical determination of a treating physician is required to submit a request for a QME panel to the DWC Medical Unit if the parties cannot reach an agreement on using an Agreed Medical Examiner.
Undesirable and unforeseen consequences may serve to further complicate rather than streamline the California workers’ compensation system as panel QMEs cancel appointments thereby requiring the non-objecting party to bring the issue to the WCAB. For example, an applicant may object to the PQME exam simply to delay a finding of MMI status to extend TTD and medical treatment benefits. Or, a defendant may object to a PQME exam to avoid exposure for additional medical treatment and disability benefits. Such tactics, while possibly sanctionable, are certain to delay the final resolution of individual cases. Further reform may be necessary.
What this means for you
Medical mileage requests for dates of service on or after July 1, 2011 must now be processed in accordance with the directive to reimburse at $.55.5 per mile. With fluctuating fuel prices, continuing modification of the medical mileage reimbursement rate can be reasonably anticipated for the foreseeable future.
The DWC Medical Unit’s advisory letters to panel QME physicians requesting that disputes regarding their evaluations be decided by the WCAB will further extend delays in the resolution of cases until a determination regarding panel QME selection can be made by a workers’ compensation judge.
While the DWC Medical Unit advisory letter does not carry the force of law or a specific regulation we believe the selection of forensic medical evaluations to prove or disprove a disputed claim is an issue that is ripe for re-examination by the Legislature and/or the Administrative Director to assure timely and appropriate assessment of industrial injury impairments and need for medical treatment.
Medical Mileage Increase Effective July 1, 2011
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California's medical mileage rate will increase to $.55.5 per mile in beginning on July 1, 2011.
The California workers’ compensation system bases its medical mileage rate on published IRS figures, and is adopted by the California Department of Personnel Administration.
Calculation of medical mileage reimbursement is based on the date on which the mileage was incurred, not the date of injury. For example, an injured worker who travels 100 miles in 2010 and submits the request for reimbursement in July 2011 should be reimbursed at the 2010 rate. A recent table of medical mileage reimbursement rates based on the date on which the mileage was incurred is available below.
10/1/01 to 6/30/06: $ 0.340
7/1/06 to 12/31/06: $ 0.445
1/1/07 to 12/31/07: $ 0.485
1/1/08 to 6/30/08: $ 0.505
7/1/08 to 12/31/08: $ 0.585
1/1/09 to 12/31/09: $ 0.550
1/1/10 to 12/31/10: $ 0.500
1/1/2011 to 6/30/11: $ 0.510
7/1/2011 and later: $ 0.555
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