We at Mullen and Filippi pride ourselves on embracing diversity and cultural heritage. As we finish the month of May, we are reminded of the profound significance it holds for the Asian American and Pacific Islander Community. Asian American and Pacific Islander Heritage Month not only honors the rich histories, remarkable contributions, and diverse experiences of Asians and Pacific Islanders in the United States, but also serves as a poignant reminder of the ongoing need for legal advocacy and the need to defend their rights.
May 29 is also Memorial Day, and we hope you celebrate the weekend with remembrance, gratitude, and recognition of the sacrifices made to protect the freedoms and rights that we hold dear.
BURDEN OF PROOF IN COVID-19 AOE/COE CASE
In the recent noteworthy panel decision of Elsa Garcia, Joffre Garcia (Deceased), Applicant v. U.S. Bank, Old Republic (hereinafter, Garcia), the Workers’ Compensation Appeals Board granted reconsideration and rescinded a decision in which the workers’ compensation judge (WCJ) found that defendant failed to rebut a presumption of industrial causation and that decedent sustained an industrial injury arising out of employment in the form of COVID-19.
Mr. Garcia was employed as a banker who last worked on November 16, 2020. He tested positive for COVID-19 on November 19, 2020, and subsequently died as a result of the infection on November 26, 2020.
Mr. Garcia’s widow filed an Application for Adjudication of Claim on April 5, 2021.The claim was denied by Defendants.On August 27, 2021, Defendants filed a Declaration of Readiness to Proceed (DOR) to a Mandatory Settlement Conference (MSC) on the issue of AOE/COE.On August 31, 2021, Applicant objected to the DOR, noting that the parties had not yet obtained a medical-legal evaluation.The matter was initially set for MSC on September 13, 2021, and the hearing was taken off calendar.
Defendant filed a second DOR on November 10, 2021. Applicant’s attorney filed an Objection to DOR on December 16, 2021, noting that a panel QME report was pending. At the December 20, 2021 MSC, the WCJ set the matter for trial, noting that Applicant’s DOR objection was untimely. The issue of admissibility of any panel QME report was deferred to the trial judge.
The matter proceeded to trial without medical-legal evidence and the WCJ held that Defendant failed to rebut the presumption that Applicant contracted COVID-19 on an industrial basis, and that Mr. Garcia sustained injury AOE/COE as a result of COVID-19.
Defendant filed a Petition for Reconsideration.
In its Opinion and Order Granting Petition for Reconsideration and Decision After Reconsideration, the Appeals Board held that there was insufficient evidence to find that Mr. Garcia contracted COVID-19 during an outbreak; therefore, the LC Section 3212.88 presumption did not apply. Further, the Appeals Board held that in the absence of the presumption, there must be medical evidence addressing causation. Because a medical-legal evaluation had not been completed, the matter was remanded to the trial level for the parties to complete the panel QME process.
Practice Tip: Practitioners should use caution when litigating AOE/COE claims involving COVID-19 without medical-legal evidence, and always remember to timely file objections to DORs!
Garcia v. U.S. Bank, Opinion and Order Granting Petition for Reconsideration
STATE SENATE PASSES PTSD PRESUMPTION AND UR LICENSING BILLS
According to a recent WorkCompCentral article, the California Senate passed bills that would require some utilization reviewers to be licensed in California and would extend a presumption that post-traumatic stress disorder (PTSD) is compensable to additional public safety employees.
Senate Bill 623 passed with a 35-0 vote, which would extend the presumption that PTSD is compensable to dispatchers and firefighters employed by State Hospitals, Developmental Services, Military and Veterans Affairs. The bill would also extend the sunset date for this presumption from January 1, 2025, to January 1, 2032.
Senate Bill 363 passed with a 30-8 vote, which would mandate that utilization reviewers involved in private employer claims be licensed by the appropriate California boards, such as the Medical Board of California for physicians and the California Board of Psychology for psychologists.
Senate Bill 363 was introduced by Senator Dave Cortese, who said “[i]f insurance companies feel compelled to perform utilization review, SB 363 would at least make sure the review doctor is licensed in California.”
Both Senate bills will now go to the Assembly for additional hearings.
Senate Passes PTSD Presumption, UP Licensing Measures
CWCI REPORT INDICATES IMR VOLUME HAS DECREASED
As the state legislature introduces legislation that may change the medical dispute resolution process, a new California Workers’ Compensation Institute (CWCI) report reveals that the number of independent medical reviews (IMR) used for resolving medical disputes hit a record low in 2022. This decline is attributed to a decrease in prescription drug disputes. The study also highlights that a small group of doctors are responsible for most of the disputed treatment requests that undergo IMR.
The CWCI analysis found that 127,215 IMR decision letters issued in 2022, which is a 4.7% decrease from 2021 and a significant 31.1% decrease from the record high in 2018.
The study found that in 2022, IMR doctors upheld the UR physician’s modification or denial of service at a rate of 91%. Prescription drug disputes constituted one-third of the 2022 IMR determinations, followed by physical therapy and injections. However, this percentage has decreased since the implementation of opioid and chronic pain treatment guidelines in 2017 and the MTUS Prescription Drug Formulary in 2018. Opioids remained the most common source of dispute, accounting for nearly a quarter of pharmaceutical IMRs in 2022.
The CWCI report also addresses the significant proportion of disputed treatment requests attributed to a small number of high-volume providers, primarily pain management and orthopedists. In 2022, the top 1% of providers based on their volume of disputed treatment requests consisted of 80 physicians, which accounted for nearly 40% of all IMR activity, while the top 10% (803 physicians) accounted for almost 83%.
Resolving Medical Disputes: Factors that Drive IMR Volume and Outcomes
This Bulletin was written by Steve Rosendin, Associate Partner in our San Francisco office. A copy of this Bulletin and the most current twelve months are available on our website at: www.mulfil.com/bulletins
