We at Mullen Filippi hope you all had a very happy holiday season and are adjusting to the new decade. As we reflect on the past decade we recognize it was one of big developments in workers’ compensation, with the passage of SB 863 in 2012, the passage of AB 5 this year, and a host of major decisions including Dahl, Dubon, South Coast Framing, Fitzpatrick, Rice, Lindh, Hikida, and many more. Mullen Filippi, founded in 1949, celebrated its 70th anniversary this year, and our plan for the new decade is the same as our plan for the prior seven, which is to provide excellent representation to our clients no matter what changes the next ten years bring.
QME AUDIT HEARING SCHEDULED
Attorneys, claims professionals, and applicants can all likely attest that multiple replacement QME panels are becoming troublingly common in litigated claims. According to an 11/19/2019 audit completed by Elaine Howle, CPA, a California State Auditor, the DWC has failed to ensure that there are enough QMEs to keep up with the demand for such evaluators. Between 2013 and 2018, the total number of QMEs in the system went down 12%, while requests for QMEs increased by 37%. The auditor also found that the DWC has not put in place an adequate process for reviewing QME reports for quality or for tracking QME reports rejected by workers’ compensation judges for not meeting evidentiary standards. Ms. Howle recommended that panel sizes be increased from three to five QMEs, and recommended that the party who did not request the panel be allowed to select a QME from the three QMEs remaining after each party exercised a single strike. Ms. Howle also recommended that the Medical-Legal Fee Schedule be reviewed more frequently to account for inflation.
A summary of the report can be found here: https://www.auditor.ca.gov/reports/2019-102/summary.html. An oversight hearing is now scheduled for 1/7/2020 to address these concerns. Problems with the QME panel system are to the detriment of injured workers and employers alike, so stakeholders in the workers’ compensation system will surely be monitoring these developments closely.
SUPREME COURT DENIES WRIT IN SKELTON: TTD NOT OWING FOR MEDICAL APPOINTMENTS AFTER RETURN TO WORK
The California Supreme Court recently denied review in the case of Skelton v. WCAB (2019). A workers’ compensation judge had found in Skelton that applicant was not entitled to TTD benefits for time missed from work while attending industrial medical appointments where the work injury did not prevent a return to work. That finding was upheld by a majority at the WCAB level and then affirmed by the 6th District Court of Appeals. The Supreme Court had earlier held in the Lauher decision that an injured worker is not entitled to temporary disability indemnity for treatment after reaching permanent and stationary status and that Labor Code 4600(e)(1) only requires temporary disability indemnity be provided for medical legal evaluations.
The 6th District Court of Appeals in Skelton reasoned that temporary disability indemnity is intended to provide wage replacement only during a period where the employee is healing and incapable of working. With the Supreme Court’s denial of review, it now becomes law that an applicant who has returned to work is not entitled to TTD benefits for work missed due to industrial medical appointments even if they are not yet permanent and stationary. This means that if an injured worker can only schedule treatment appointments during work hours, an employer may require the employee to use sick leave or vacation time or take the time off as unpaid leave.
NEW CASE BRIEFS AVAILABLE!
This month, Pamela Goe, Senior Counsel in our Bakersfield office, has written a detailed analysis of the Colamonico decision that set forth the evidentiary burden of proof under Labor Code 4620 and Labor Code 4621 for lien claimants seeking reimbursement for medical legal services. The case involved a copy service, which makes this well-written brief by Ms. Goe a must read for anyone who deals frequently with liens from copy services. The brief can be found at the following link: https://www.mulfil.com/copy-service-has-to-actually-prove-entitlement-to-reimbursement-what-a-concept/?single_header=briefs&get_cat=case-brief
This Bulletin was written by Jim Cotter, Associate Partner in our Oakland office.