BulletinHope Springs Eternal

February 21, 20190

Though the recent polar vortex on the East Coast and record snowfall in the Truckee-Tahoe area may have us doubting it, Punxsutawney Phil, our nation’s foremost rodent prognosticator, could not find his shadow on February 2, 2019, leading us all to hope for an early spring.  Whether we’re bundled up for a few more weeks or dressing for sunshine, 2019 is now well underway, and everyone here at Mullen & Filippi is working diligently to resolve our clients’ claims old and new, come rain or shine.


At the DWC educational conference in Los Angeles, DWC Administrative Director George Parisotto advised that 184,735 IMR decisions issued in 2018, and that this is consistent with volumes since 2015.  On average, around 20,000 IMR requests are filed each month.  Utilization Review decisions were upheld upon IMR 84.7% of the time, with 9.5% being overturned and 5.7% being partially overturned.  The rate at which pharmaceutical UR decisions were overturned was 10.3% of the time, with the overturn rate for opioids being 9.8%.

IBR remains much less utilized, with only around 2,000 IBRs being filed in 2018.  Of note is that 70% of IBR decisions to date found that the provider was owed additional money.


The 26th Annual DWC Educational Conference was held from 2/11/-2/12/2019 in Southern California and will be held in Oakland from 2/28-3/1/2019 in Northern California.  This year’s conference features breakout sessions on apportionment, updates from the DWC, employment and insurance, the drug formulary, settlements, social media’s use in workers’ compensation litigation, legal ethics, liens, the Medical Treatment Utilization Schedule, return to work considerations, rating misconceptions in the use of the AMA Guides, the rating of spine impairments, discovery and record development, updates from the WCAB, trending topics in the Audit Unit, Utilization Review, and recent workers’ compensation case law.

More information on the conference and how to attend the Northern California conference can be found at https://www.dir.ca.gov/dwc/educonf26/DWC_EducationalConference.html.  Mullen & Filippi will have several attorneys attending the Northern California Conference, and we hope to see you there!


California medical providers no longer have to pay for a commercial license in order to access the state’s treatment guidelines.  The Medical Treatment Utilization Schedule had incorporated guidelines developed by the American College of Occupational and Environmental Medicine (ACOEM), which are published by Reed Group.  Providers previously needed to purchase a license to access the publication, but the DWC has now negotiated with the Reed Group and procured free access to the guidelines.  According to the DWC Administrative Director, it is hoped that by providing the guidelines free of charge, providers will be better able to comply with them in their treatment requests and decisions and so reduce friction in the Utilization Review process.


Mullen & Filippi Senior Partners Medy Beauchane, Anne Hernandez, Dana Miller, Christopher Morrow, and Paula White, Associate Partners Sepideh Sepidehdam and yours truly, and Associate Attorney Ted de la Haye recently attended the 45th Public Agency Risk Management Association Conference and Exposition at the Disneyland Hotel in Anaheim, CA.  Dana and Paula gave a presentation on recent trends in Permanent Disability and Medy gave a presentation on Third-Party Negligence and Subrogation in Workers’ Compensation.  If you missed the conference and would like to have your claims professionals receive some of the insights they shared in their well-received presentations, please contact us to set up a training.


In another reminder to all practitioners to be careful when entering into stipulations, the WCAB upheld a finding that a defendant did not show good cause to be relieved from a stipulation as to which body parts were involved in an industrial injury in the case of Dean v. HomeGrocer.com, 2018 Cal. Wrk. Comp. P.D. LEXIS 547.  The defendant had sought to set aside the stipulations after the fact when a QME later found that the applicant did not sustain an industrial injury to various body parts that were the subject of the stipulation.  The WCAB again confirmed that a party cannot withdraw from a stipulation to injury to a body part based on medical evidence obtained subsequent to the stipulation.


The Case Briefs section of the Mullen & Filippi website is a great resource for updates on recent developments in case law and for thorough analysis of core legal concepts that are regularly a part of workers’ compensation claims.  Two new briefs were recently added on 2/16/2019.  One article, by Associate Xavier T. Tan-Sanchez of our Van Nuys office addresses how the WCAB defines the date of injury in cumulative trauma cases, which can be crucial in determining liability when multiple employers or carriers are involved during a possible cumulative trauma period.  The other article, by Associate Debra A. Robins, also of our Van Nuys office, addresses the definition of employee and independent contractor both under the former multi-factor test set forth by the Borello case and under the streamlined “ABC” test set forth by the recent Dynamex decision.  Debra’s analysis provides helpful practice tips for litigating the issue of whether an applicant was an employee under either test.  Check these most recent briefs out, and feel free to peruse the other helpful briefs in the archives at the following link:  https://www.mulfil.com/case-briefs/

This Bulletin was written by Jim Cotter, Associate Partner in our Oakland office.

Need Assistance? Are you interested in having M&F attorneys design a customized training or claim review round-table meeting for your office? We’d be happy to provide on-site assistance as required to help you meet the challenges of today’s claims administration issues, and to assist you in complying with all regulatory guidelines. Contact us today at education@mulfil.com for further details or to schedule a seminar!

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