BulletinUncategorizedMAY MUSINGS

May 24, 20210


We at Mullen & Filippi would like to wish a Happy Mother’s Day to all mothers, children of mothers, mothers-to-be (whether soon or in the distant future), and anyone doing the important, often unpaid and underappreciated, work that we can hardly recognize sufficiently with one brunch and a bouquet of flowers.  As a proud mama’s boy, this author salutes you!

We’re well into spring 2021 now, and many institutions and traditions are now starting to break through the permafrost of last year as public health regulations are slowly relaxed across the state.  It’s been a good month to consider new wardrobes and haircuts (or in my case a much-needed beard trim).  There’s surely been a bit of a shock to the system as our eyes adjust to the midday sun after all of that indoor lighting, but with any luck, we’ll maintain some of the patience with each other required of us last year as we all return to the now abnormal normal routines of our prior lives.


If you’re like everyone else in the comp community and the new medical legal fee schedule set forth in 8 CCR 9793, 9794 & 9795 is taking some getting used to, and you could use a handy reference guide to give you an idea of just what a medical legal evaluation might cost and how much it might run you to send those 12,000 pages of treatment records, Mullen & Filippi has you covered.  We have up at our website an easily printable reference guide covering all the base costs and multipliers set forth in the new regulations.  Find it at this link:  Costs-for-Most-Med-Legal-Exams.pdf (mulfil.com)


Assembly Bill 1465, which proposed a statewide MPN, citing a need for better access to treatment, has been transformed into a proposed study bill aimed at exploring the feasibility and costs of a statewide MPN.  Employers and insurers had expressed concerns with the bill, and the California Workers’ Compensation Institute had estimated that the costs of the statewide MPN would range from $314 million to $364 million per year.  The parameters of the proposed study are not yet rigorously defined.  The bill only states that the Commission on Health and Safety and Workers’ Compensation should submit a study to the Legislature on or before 01/01/2023 regarding delays and access to care issues in medical provider networks.  The bill does require the study to compare specified data for injury claims in which a worker was treated by a medical provider network to that data for injury claims in which a worker was treated by a provider who is not part of a medical provider network.  As to areas of study, the new proposed bill specifically discusses length of time between injury and initial treatment across the two systems, as well as the geographic distance between the injured worker and the provider across the two systems.  With this change to the proposed bill, however, there is no statewide MPN expected in the imminent future.


Senate Bill 788 has the stated goal of decreasing discrimination in the workers’ compensation system and prohibits a physician’s consideration of race, religious creed, color, national origin, age, gender, marital status, sex, sexual identity, sexual orientation, or genetic characteristics when determining the approximate percentage of permanent disability caused by factors other than the industrial injury.  The bill would amend Labor Code § 4663 to preclude the above factors from being considered.

In practice, that could mean that genetic conditions that significantly contribute to disability could not be considered.  The statute would seem a direct response to the 2017 case of City of Jackson v. WCAB (Rice), which found valid apportionment present where a medical-legal evaluator found that a pre-existing genetic predisposition for degenerative disc disease contributed to the overall level of disability.  The Court there pointed out that precluding apportionment based on impermissible immutable factors would preclude apportionment on the very factors that the legislation now permits; that is, apportionment based on pathology and asymptomatic prior conditions for which a worker has a predisposition, inherited or otherwise.  There is no telling what effect the language of SB 788 would have on apportionment analyses in cases where psychiatric permanent disability is involved, given that many of the prohibited categories can form part of the psychosocial makeup that a medical-legal evaluator must consider when opining on causes of psychiatric disability.  The overall effect would seem to be to limit apportionment to cases of clear prior industrial or non-industrial injury.


The Ninth Circuit Court of Appeals in California Trucking Association v. Bonta has reversed a previously ordered injunction against application of AB5 to motor carriers, finding that the Federal Aviation Administration Authorization Act does not preempt the application of AB5 to such entities.  In pertinent part, the Court stated that “because AB-5 is a generally applicable labor law that affects a motor carrier’s relationship with its workforce and does not bind, compel, or otherwise freeze into place the prices, routes or services of motor carriers, it is not preempted by the FAAAA.”  The Court rejected California Trucking Association’s arguments that the application of AB5 would have a significant effect on prices, routes, and services by fundamentally changing the way that motor carriers do business, indicating that the effects did not meet the impermissible effect standard that would implicate preemption.  The Court instead compared the application of AB5 and the change in how employees are classified to wage, meal, and break laws, as statewide laws of general applicability not implicated by preemption doctrines.  The dissent, however, found the effects on prices significant and stated that “California will now be free to enforce its preempted law.  CTA’s members will now suffer irreparable injury.  And the damage to the policies mandated by Congress will likely be profound.”  There is now a split amongst federal circuits on the issue of whether the ABC test is preempted by the FAAA such that the issue may eventually merit consideration by the US Supreme Court.


This month, Daisy Morris, an Associate Attorney in our Los Angeles office, has provided a discussion of the WCAB decision in Menicucci v. State of California, Department of Transportation (2010), a case where the applicant had sought care with a physician who was in the employer’s MPN but whose office was 51 miles away from the applicant’s residence.  Defendant had challenged the physician selection as improper for being outside of a reasonable geographic area.  The WCAB, which found that the injured worker was not precluded from treating with that physician, pointed out that while Labor Code § 4600 limits non-MPN treatment to physicians of the applicant’s choice within a reasonable geographic area, there is no explicit language in the MPN statutes limiting treatment to those physicians within a reasonable geographic area.  Ms. Morris discusses the various statutes that define a reasonable geographic area and discusses helpful practice pointers for keeping mileage costs low where the injured worker has their heart set on a particular MPN physician.

The article can be found here:  WE DO PRACTICE IN A YELLOW SUBMARINE (mulfil.com)


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