By Mullen & Fillippi

In the presidential race there is still no clear front-runner, at least on one side! In workers’ compensation the same can’t be said. In fact, things are changing in favor of employers. You could almost call it a “campaign of reform,” as the intent of the new laws is supported by a steady stream of votes (appellate decisions).

No Flip-flops here!

For instance, just in time for Washington’s birthday, the Second Appellate District has ruled in the unpublished case of Browning-Ferris Industries v. WCAB (Salter), that a worker with a previous 60% level of PD, who then suffers one cumulative trauma that increases PD to 100% according to her doctors and per the Stipulation of the parties, must be awarded 40% PD as a result of the new CT. The WCJ had relied on E & J Gallo Winery v. WCAB (2005) to issue an original decision ruling that it was appropriate to deduct the monetary value of the prior Award of 60% PD from the most recent award of 100% PD. However, the Second Appellate District stated that “subtracting the monetary value of prior awards does not comport with Labor Code §4664 as constructed by our Supreme Court in Brodie.” Moreover, Section 4664 limits the employer’s liability to only the percentage of liability which is directly caused by the current industrial injury.

Can’t we all just get along?

Next, in a psychiatric case, demonstrating “actual events of employment” requires the applicant to establish objective evidence of harassment, persecution, or some other basis for alleged psychiatric injury. In Rosemary Verga v. WCAB (United Airlines), the Third Appellate District in an opinion filed Jan. 23 has placed the burden of proof on the applicant to prove that disdainful reactions of co-workers to applicant’s abusive conduct towards them were neither “actual events of employment” nor the “predominant” cause of applicant's psychiatric injury. According to Verga, her psychiatric injury was the result of harassment and persecution by her supervisor and co-workers. However, the WCAB found “the true fact remains that [Verga] was not actually subjected to harassment or persecution, but rather she brought upon herself the disdain of her co-workers” because Vera was a “difficult person to get along with”; she was impolite, unpleasant, and co-workers “never knew when [she] might get upset.” The WCAB held: “that disdain is not an actual event of employment” within the meaning of the statute. This case was argued by our own Ohnmar Shin of the Sacramento office of Mullen & Filippi.

What is being done to fix the system?
 
The “President” of our Workers' Compensation system (the Administrative Director) states that California’s return to work process and Qualified Medical Evaluator Panels could see significant changes in 2008. At a recent convention, Carrie Nevins stated that the 15% bump “might not be around much longer,” but did not clarify beyond that. She stated that “a lot of employers don’t really like the way the 15% bump-up and bump-down works”. Further she added, “I think that everyone generally agrees that, one, the language in the statute is not very good”. “You end up sending return to work letters offering return to work (benefits) to those who are often already back at work, and the supplemental job displacement for the workers that come back, comes in too late in the system, because it’s a post Award benefit in the way that it is written in the statute”. Nevins also said that the DWC is studying a revision of the PR-2 form to require physicians to state what “the worker is capable of doing” instead of reporting that the employee simply can’t work. Also, she indicated that, “for a particular injury, we may allow you to have a second panel in a different specialty”, but “we’re going to monitor this closely to make sure that people aren’t using it to doctor shop.”

The DWC and WCAB go paperless in the summer or fall of 2008.

DWC officials also confirmed that the WCAB will operate with skeleton crews for up to nine business days sometime this year as DWC Judges and staffers train on the new paperless filing system. The EAMS (Electronic Adjudication Management System) will revolutionize the practice of workers’ compensation in California. Various units (DEU, SIS, ADJ where cases are litigated), (VOC, RSU, UEF), within the DWC will be integrated into one system called EAMS. You are encouraged to read the proposed rules and issue your commentary online with the DWC while you can. The public forum can be found at www.dir.ca.gov/WCJudicial.htm. Click on “current forums” at the top of the page.

Forms we now use will be converted to “e-forms”, e.g., Application for Adjudication of Claim, Answers, Declaration of Readiness, Compromise and Release Agreements, Stipulations With Request for Awards – basically any form that we are using except for the MSC Statement and the Appearance Sheets, which will remain paper and then be scanned into EAMS by a DWC staff person. You will file a Declaration of Readiness to Proceed electronically and receive a choice of dates within seconds of filing one. Once you select a date for a hearing, EAMS will serve notice by the method you previously requested (email, e-fax or regular mail). Electronic signatures are accepted in the form “/S/ John Doe” or an actual scanned in document with an original signature. There are rules for filing Petitions for Reconsideration with the WCAB – you have 20 plus two days to file electronically or 20 plus five days if you had previously designated service by regular mail. These are just a few of the many new rules that you will be hearing more about.

More Changes to the Official Medical Fee Schedule (OMFS)

In addition, adjustments to the Official Medical Fee Schedule (OMFS) are posted on the DWC website. On Jan. 25, adjustments to the Outpatient Hospital and Ambulatory Surgical Center Services section of the OMFS will be implemented to conform to changes in the Medicare payment system. These were posted on the DWC website. Adjustments to the DMEPOS section of the OMFS to conform to changes in the Medicare payment system were posted on the DWC website on 1/9/08. Adjustments to the pathology in clinical laboratory section of the OMFS to conform to changes in the Medicare payment system were posted on the DWC website on Jan. 8.

As you can see from the above, this is an exciting season for change. Just don’t get too excited. Remember what happened to one presidential hopeful last term!

The Mullen & Filippi Bulletin is reprinted with the permission of the law firm.