1. No category

1
2
September 2013 Vol. I Issue 9 DWC CLARIFIES INTERPRETER RULES By: Ani Baghdassarian, Esq. On 09/04/13, the DWC issued a statement clarifying application of the new interpreter rules under Labor Code §4600(g). Pursuant to §4600(g), “if the injured employee cannot effectively communicate with his or her treating physician because he or she cannot proficiently speak or understand the English language, the injured employee is entitled to the services of a qualified interpreter during medical treatment appointment… Upon request of the injured employee, the employer or insurance carrier shall pay for interpreter services.” The DWC advised all claims administrators that “failure to provide a necessary interpreter at a medical treatment appointment may constitute a failure to provide medical treatment.” Such a failure may lead to penalties and/or sanctions against the claims administrator. Though the phrase “proficiently speak or understand English” is not defined in §4600(g), a claims administrator should be able to determine whether an injured worker’s (IW) request for an interpreter is necessary. Continued on page 2… HOW TO REQUEST A PANEL QME UNDER THE
NEW REGULATIONS
By: Margaret E. Forer, Esq.
The DWC Medical Unit has now finalized the new Panel QME regulations. Please note since these regulations are new, they are not included in the 2013 edition of the Workers’ Compensation Laws of California. Under the new regulations, the DWC will review and scrutinize every PQME request, including the objection letter (to the primary treating physician’s medical report) and the QME 105 or 106 forms, to ensure the parties have strictly complied with the procedural requirements. This means that claims administrators and defense attorneys must follow and satisfy each and every step discussed below before the DWC will issue a PQME. If any required piece of information is left incomplete, the DWC will reject (and in fact has been rejecting) and return the request. Since it is taking the Medical Unit approximately five months to issue Panel lists, it is imperative for claims administrators to follow the exact procedures to avoid any rejections or further delays. Your o bjection must include all necessary content Up until a few months ago, the DWC was issuing Panel lists even if the required objection was vague, improper or incorrect. The DWC has now vocalized that the exact procedural requirements must be met. The objection letter needs to be set forth with specificity and include information not previously required (meaning not previously enforced b y the Medical Unit). It is no longer adequate to simply object to a physician by name or state the date of the medical report. The objection must be made timely, within 20 days of receipt of the medical report (if the injured worker is represented) or within 30 days (if the injured worker is unrepresented). The objection must state a description of the specific medical dispute (i.e. compensability, permanent disability, TTD, nature and extent, disputed body part(s), etc.) and the Labor Code Section (4060, 4061, and/or 4062). Pursuant to Title 8 CCR §30(b), the party requesting a PQME shall: 1) Attach a written objection indicating the identity of the primary treating physician (PTP), the date of the PTP’s medical report, and a description of the medical dispute, which requires a comprehensive medical/legal Continued on page 2… 4
2
3
Interpreters, from page 1… If an IW can converse with an employer or claims administrator in English, it does not necessarily mean he can effectively communicate with a physician (understanding the medical terms /diagnosis, etc.). Speaking English on the job is very different than speaking English fluently at a deposition, Trial (because of perjury and the legal ramifications of testimony), and/or with a treating physician. It is best to give the IW the benefit of the doubt and schedule an interpreter if necessary, but if it is obvious the IW speaks and understands English, then an interpreter is unnecessary. In addition, §4600(g) states if an interpreter is necessary, then the IW gets an interpreter at every medical treatment appointment (this would include all evaluations, all reevaluations, all consultations, all therapy, all chiropractic, and all acupuncture, etc.). The doctor’s office is not obligated to have someone on staff to interpret. To avoid any delay in treatment and/or penalties/sanctions, it is recommended that a claims administrator provide, upon an injured worker’s request, an interpreter, whether qualified or certified, at all medical treatment appointments. You can read the DWC’s statement in its entirety at: http://www.dir.ca.gov/dwc/dwc_n
ewslines/2013/Newsline_61-­‐
13.pdf#zoom=100 In other news, the W CAB has issued Rule 10451.3, which allows interpreters to file petitions for © Pearlman, Borska & Wax 2013 pbw-­‐law.com costs for services provided during requesting a copy of the denial depositions. Such an interpreter is before issuing a Panel list. Enclosure of the denial letter may now exempt from filing a lien. prevent any additional delays. Request a panel, from page 1… Use the new version of the forms -­‐ QME 105 or 106 report; When requesting a Panel, you must 2) Designate a specialty for the now use the new finalized versions PQME; of either form 105 or 106 (these forms replaced 105a and 106a, 3) State the specialty preferred by which were in use during the the opposing party, if known; and proposed regulation time period). The forms also now include a proof 4) State the specialty of the PTP of service, which must be completed. Once an objection issues, you must wait 1 5 days before How to request a Panel in a requesting a PQME different specialty After issuing an objection to a If more than one specialty is PTP’s medical report, you must needed, it is no longer acceptable to wait 15 days (ten days for the attach an objection letter and issue objection and five days for the request on the 105 or 106 mailing) before submitting the forms. Pursuant to the new PQME form and accompanying Additional Panel Request form documents to the DWC Medical (QME form 31.7), an additional Unit (per the Messele case). You Panel request can only be issued can request and mail the Panel under one of two circumstances: (1) form on the 16th day. a written agreement between the parties in a represented case or (2) Labor Code §4060 if a PQME acupuncturist notifies the compensability issue parties that a QME in a different specialty is necessary to comment If an objection is made under on disability. It appears that Labor Code §4060, it is obtaining a Judge’s Order is no recommended you include the longer an option. claim denial letter with your PQME request form. The denial letter is The new PQME forms are available not necessarily required, but the on the DWC website: DWC has been contacting parties http://www.dir.ca.gov/dwc/forms.ht
ml Outside the office: Contributing attorney, Margaret Forer, hanging with her son poolside. 2 1
2
3
INDEPENDENT MEDICAL REVIEW DECISIONS OF THE MONTH: MAXIMUS CERTIFIES KNEE REPLACEMENT TO AVOID “CATASTROPHIC” LOSS By: Ani Baghdassarian, Esq. This month’s examples deal with surgery requests, one which Maximus found medically reasonable. Example 1: Maximus determined the request for an urgent total right knee revision surgery with two stage debridement, and ABT spaces, was medically necessary. The injured worker (IW) had right knee replacement in 2008. The IW recently had an infection (staphylococcus aureus per blood culture), which required hospitalization and treatment with antibiotics. Despite the antibiotics, N
R
Z
L
T
C
R
E
Y
V
H
G
I
Q
L
F
U
E
S
U
J
K
C
S
E
N
V
M
G
A
F
R
I
D
X
M
I
U
A
N
I
G
P
L
C
K
R
A
D
R
C
B
D
M
S
O
L
A
Z
I
W
K
T
C
A
O
A
A
U
L
R
W
I
U
V
K
Y
T
R
T
C
S
B
R
E
G
U
R
C
R
G
P
O
I
H
U
J
I
L
S
F
B
M
F
E
X
H
Q
E
A
E
R
L
D
I
Q
F
E
K
C
© Pearlman, Borska & Wax 2013 pbw-­‐law.com T
O
M
Y
C
G
W
E
G
O
M
F
N
T
Y
the IW still experienced swelling, pain and increased warmth in the right knee. Utilization Review (UR) non-­‐
certified the request based on the Official Disability Guidelines (ODG), Knee and Leg Chapter, knee joint replacement section, a medical treatment guideline (MTG) not part of the Medical Treatment Utilization Schedule (MTUS). The IMR physician found no section of the MTUS specifically addressed this issue. The ODG supports revision of total knee arthroplasty as an effective procedure for failed knee arthroplasty. Due to the infection, a total knee revision is necessary “to prevent further catastrophic events.” The IMR physician was Board Certified in orthopedic surgery. Example 2: Maximus determined the request R
T
B
T
L
W
V
X
R
N
N
D
T
Q
D
N
O
I
T
A
I
N
R
E
H
V
C
N
P
J
P
V
T
V
D
Q
L
A
N
R
E
T
N
I
D
E
G
G
A
X
Q
N
I
D
N
Z
C
Z
N
S
A
B
N
O
R
M
A
L
W
X
Y
T
W
Z
S
F
E
M
U
R
Z
U
E
D
P
P
I
V
U
G for an extensor halluces brevis and extensor pollicis longus tendon transfer (transfer of the big toe extensor to the thumb tendon) was not medically necessary. The IW was status-­‐post right carpal tunnel release, right ulnar nerve decompression at the wrist, and neurolysis of the right median nerve. The IW was unable to straighten the right thumb, had limited function and pain, and had diminished sensation of the m iddle and ring fingers. The IW was diagnosed with bilateral muscle atrophy, right arm pain, tendon rupture of the EPL tendon on the right and tenosynovitis of the right thumb flexor tendon sheath. UR non-­‐certified the request based on Green’s Operative Hand Surgery, 6th Edition, and Campbell’s Operative th
Orthopaedics, 12 Edition, which are not part of the MTUS. Continued on page 5… ABNORMAL CERVICAL DISORDER FEMUR FRACTURE GAIT GROIN HEADACHE HERNIATION IMPAIRMENT INTERNAL LESION LUMBAR SUBJECTIVE THORACIC WRIST 3 1
2
3
MUNCH ON THIS: LUNCH BREAK INJURIES. WHEN ARE THEY COMPENSABLE? By Charles B. Ressler, Esq. Labor Code §3600(a) indicates an employer (ER) is liable for any injury “sustained by his or her employees arising out of and in the course of the employment….” This creates a two-­‐prong test for compensability. Does the injury ‘arise’ out of the employment and was the injury sustained during the ‘course’ of the employment. ‘Arising out of employment’ (AOE) is one half of the AOE/COE equation. AOE is a proximate cause, to some degree or extent of the injury by the employment relationship. It need not be the sole cause of the injury. There must be a “direct causal connection between the injury received by the employee and her employment.” State Compensation Ins. Fund v. Industrial Acci. Com., 194 Cal. 28, 31 (Cal. 1924) ‘Course of employment’ (COE) is the other half of the AOE/COE equation. This has to do with the specific acts of the employment contract. “An employee (EE) is in the 'course of his employment' when he does those reasonable things which his contract with his employment expressly or impliedly permits him to do." State Compensation Ins. Fund, supra. This two-­‐prong test is summarized in Maher v WCAB, 48 CCC 326 (1983). The California Supreme Court held “the employment and the injury (must) be linked in some causal fashion” to satisfy the AOE test. As to the COE requirement, the Court held this is satisfied © Pearlman, Borska & Wax 2013 pbw-­‐law.com when the EE is “performing a duty imposed upon him by his employer.” Lunch break injuries present similar AOE/COE issues If an EE is injured while on his lunch break, under what circumstances is he entitled to workers’ compensation benefits? An injury occurring during a lunch break ‘arising’ out of the employment is easy to see. Without an employment situation, there would of course be no ‘lunch break’ within the common usage of the term. The lunch break presupposes the employment condition. This then satisfies the AOE portion of the equation. That is, there is a “direct causal connection between the injury received by the employee and her employment.” There is a clear link between the employment and the lunch break. However, is the lunch break injury within the ‘course’ of employment? Case law has developed several tests by which the issue can be determined. Simply put, the tests include whether the injury occurred on or off premises and whether the EE is or is not compensated for the break. On premises lunch breaks A lunch break injury while on the ER’s premises is generally found to be within the course of the employment whether the lunch break is compensated or not. This general rule has its inception within the so-­‐called ‘personal comfort doctrine.’ See Western Pipe and Steel co. of California v IAC 7 Cal. Comp. Cases 28, 7 Cal. Comp. Cases 28 (Cal. App. 1942) for a discussion as to the origin of The DWC announced on 09/19/13 that effective 11/30/13, the Goleta WCAB will close and merge with the Oxnard WCAB. All cases in Goleta will be transferred to Oxnard. this doctrine, where the Court held “Acts of the employee for his personal comfort and convenience while at work, such as taking a drink of water, lighting a cigarette, warming himself, etc., do not interrupt the continuity of the employment.” In Gutierrez v. Petoseed Co., 103 Cal. App. 3d 766 (Cal. App. 2d Dist. 1980), the Court found the injured workers were allowed compensation because the EEs were injured while in the course of employment pursuant to the personal comfort doctrine even though the injury took place during an uncompensated lunch break on the ER’s premises. What about off premises lunch breaks? Consider the case of a salaried bookkeeping manager of a temporary employment agency who, due to a hectic day, took her lunch break several blocks from the office where she worked. Compensability was originally denied, but on appeal, the Court held the EE’s salary was essentially spread throughout the day effectively compensating the EE for the lunch break, thereby allowing benefits. Duncan v. Workers' Comp. Appeals Bd., 150 Cal. App. 3d 117 (Cal. App. 1st Dist. 1983). Continued on page 5… 4 4
1
2
Lunch break injuries, from page 4… Is then, an EE to be denied benefits for an uncompensated, off premises lunch break? The answer appears to be ‘yes.’ Consider the case of Mission Ins. Co. v. Workers' Comp. Appeals Bd., 84 Cal. App. 3d 50 (Cal. App. 1st Dist. 1978). Here, the EE was off the ER premises on an uncompensated lunch break when she suffered injuries by way of an automobile accident. The EE was originally awarded benefits. However, the Court reversed, holding that the EE had effectively crossed the ‘premises line’ of the ER and hence was not entitled to benefits under the ‘going and coming rule’ and the ‘personal comfort doctrine.’ The Court outlined a clear distinction where the ER’s liability is not measured by a ‘reasonable distance’ from the premises, as in earlier cases, but to a clear ‘boundary line’ to determine the ER liability. Case law involving lunch break injuries are heavily fact driven. For example, the on premises compensated lunch break injury, otherwise compensable, could be found non compensable if the EE was intoxicated, the initial physical aggressor, if the activity giving rise to the injury was prohibited by the ER, or any other affirmative defense. These same defenses can apply to salaried EEs and off premises injuries as well. The claims administrator is cautioned to review each fact pattern carefully as application of the various rules and doctrines cannot be applied in a ‘one size fits all’ m anner. © Pearlman, Borska & Wax 2013 pbw-­‐law.com IMR decisions, from page 3… The IMR physician found no section of the MTUS specifically addressed this issue. The submitted medical records did not include an indication of procedure risks nor did it include a rationale by the requesting physician to support the request. The IMR physician was Board Certified in orthopedic surgery. A sample of IMR decisions can be found on the DWC website: www.dir.ca.gov/dwc/IMR/IMR_Dec
isions.htm EMPLOYER LIABILITY EXPANDED TO INCLUDE EXPOSURE FOR COMMUTE TIME By: N icole G. Minkow, Esq. Can an employer (ER) be held liable for tortious acts of its employees (EE) when the EE is considered commuting and “off the clock?” A California appellate court answered that question with a resounding “yes” when it held an EE was acting within the scope of her employment during a car accident while running personal errands on her way home, because the ER required her to use the personal vehicle for work-­‐related purposes. The case is Majid Moradi v. Marsh USA, case number B239858 (“Marsh”). Marsh is widely believed to expand ER liability for the acts of EEs during the previously believed “off the clock commute time” for EEs who must use their personal vehicles for work. In Marsh, the EE (an insurance TO VIEW PRIOR ISSUES OF THE PBWIRE, PLEASE VISIT OUR WEBSITE AT: http://www.pbw-­‐
law.com/newsletters/ broker) collided with a motorcyclist on her way home from the office at the end of the workday. Just prior to the accident, the EE ran some personal errands, including stopping for frozen yogurt and taking a yoga class. The accident occurred as the EE turned into the frozen yogurt store. Notably, the yogurt shop and yoga studio were within a few miles of the EE’s home, while the ER’s offices were located a significant distance away (approximately 30 miles). The motorcyclist sued Marsh, arguing the EE was acting within the course and scope of her employment during the accident and as a result, Marsh should be liable for his injuries. The trial court disagreed and found the EE did not act within the course of her employment. However, the Court of Appeal found otherwise, and held the EE was acting within the scope of her employment, because Marsh required the EE to use her personal vehicle to travel to and from the office and make other work-­‐related trips. The Court explained the ER received an “incidental benefit” when the EE used her personal vehicle for work purposes. Moreover, the stops for frozen yogurt and yoga were considered a foreseeable minor deviation from the EE’s commute. “Thus, under the ‘required vehicle’ exception to Continued on page 6… 5 4
3
5
Employer liability, from page 5… the “going and coming” rule, the employee was acting within the scope of her employment at the time of the accident, and the doctrine of respondeat superior applies”, resulting in Marsh’s liability for the accident. Typically, under the “going and coming” rule, ERs are generally exempt from liability for EEs’ acts committed during the drive to and from work, because the EE is not acting within the course and scope of employment. The courts have held the employment relationship is “suspended” when the EE leaves the workplace and until he returns. Moreover, when an EE is commuting, he is not typically rendering services to the ER. However, an exception to this rule lies when an EE uses his own car, giving an “incidental benefit” to the ER, or falling within the “required vehicle” exception, where an EE is either required to use his personal vehicle for work-­‐related purposes or – as is more common today – the EE has agreed, expressly or implicitly, to use the personal vehicle as an accommodation or courtesy and the ER reasonably relies upon this, often expecting such use. In other words, when the ER benefits from the EE bringing the car to work, the commute may be considered working time for liability purposes. Simply put, the courts have found an ER who requires an EE to use a personal vehicle for work related purposes should expect the EE to commute to and from work in that vehicle. The commute benefits the ER because it permits the EE to transport a work related item (i.e. the vehicle) to the workplace. In this situation, the commute is not considered routine transit and © Pearlman, Borska & Wax 2013 pbw-­‐law.com instead, is deemed part of the working day, resulting in potential liability to the ER for torts committed by the EE, even when he makes personal stops on the way home. What type of EE could expose an ER for liability for these minor commute deviations? W hile Marsh did not provide much guidance on this issue, we can extrapolate from the facts. The EE used her personal vehicle two to five times a week for client development purposes. She received a car allowance for costs incurred for using her vehicle. Moreover, she had work materials in her car and planned to travel the next day for that purpose. It is safe to assume that any EE who uses their personal vehicle for business related purposes (i.e. deliveries, picking up supplies, attending client meetings, traveling to various sites, etc.) can expose the ER to liability for automobile accidents which occur beyond the normal working hours. The impact of Marsh is tremendous. Most ERs view commute time as outside the course and scope of employment. Moreover, most ERs do not bat an eye when an EE gratuitously uses his own car for business purposes. Marsh may induce ERs to implement policies prohibiting the use of personal vehicles for business purposes without prior consent. ERs may also think about alternative forms of transportation for EEs who need to travel sporadically. Hopefully ERs will receive guidance in future court decisions regarding the scope of the “substantial unforeseeable departure” doctrine. While courts have held quick stops for an EE’s personal convenience (i.e. at the store) are considered foreseeable, the EE in Marsh was on her way to yoga class, further muddying the waters regarding the scope of foreseeable departure. ERs should reasonably expect EEs, while driving home, to engage in some personal activities, and as a result, could face liability for injuries resulting from auto accidents occurring during those commutes. NOTICE TO READERS: This material is not intended to constitute legal advice or to create an attorney-­‐client relationship. The distribution of this information is for educational purpose only and is not provided as a consideration for future business and is not intended to solicit new business. This information is not intended to apply to any specific case and each reader is cautioned to seek legal counsel before application of the information contained in this newsletter. 6