The kids are back in school, the breeze is kicking up a bit and harvest season, or “crush” is once again in full swing in the Napa Valley! Those beautiful, ripe grapes are headed for some serious stomping to be sure. It’s fitting, then, to take a look at some stomping within the Workers’ Compensation arena this past month. Grab a nice glass of Chardonnay and read on…

Sour Grapes Over Amputations. Applicant’s attorneys don’t like a new panel decision on the amputation issue/TD cap.

Of particular note this past month was the WCAB’s en banc decision after reconsideration in Cruz v. Mercedes-Benz of San Francisco, et al., SFO 0501425. As you know, two Northern California judges had previously interpreted Labor Code section 4656(c)(2)(C) rather broadly in awarding temporary disability benefits beyond the statutory limit. Both judges indicated in trial level opinions that the “amputation exception” to our current TD cap included those cases in which disc material or bone was removed during spinal surgery – a novel concept to be sure.

Congratulations are in order to Mullen & Filippi’s own Karen Dutton (San Francisco office), who wrote an excellent Petition for Reconsideration in the Cruz case. The WCAB found unanimously in her favor, indicating that “the word ‘amputations,’ as used in section 4656(c)(2)(C), means the severance or removal of a limb, part of a limb, or other body appendage, including both traumatic loss in an industrial injury and surgical removal during treatment of an industrial injury…. [It does not include] internal parts, even if they include bone.” We applaud this common-sense en banc ruling, which we feel limits TD according to the plain meaning of the statute, but which will likely be appealed further by the applicant’s bar. Stay tuned for further developments, and in the meantime, champagne for everyone!

Taking a Peek in the Barrels. Finalized Utilization Review enforcement regulations mean the DWC can now take a look at your files to see how your UR process is fermenting.

As of earlier this month, the Office of Administrative Law has approved DWC-proposed regulations governing the formation and use of utilization review processes. These new enforcement regulations could theoretically result in fines, effective immediately, for missed UR deadlines, failures to deny care or improper denials of care.

The regulations contain provisions requiring audits at every claims adjusting location once every 5 years, and at every UR company once every 3 years. Targeted investigations and audits can result from complaints received at the state level as well. Per state law, the DWC can impose penalties up to $50,000 for failure to comply but smaller fines would likely be the norm.

While we’re not suggesting that you need to your glass in panic, we do recommend that you take notice of the new regulations, which can be reviewed on the DWC Website.

Comp Legislation, Vintage 2007. Governor Schwarzenegger is set to do a little tasting of some new releases.

The 2007 legislative session having come to a close, our lawmakers in Sacramento have now bottled and shipped some new legislation to the governor’s office. This special limited release includes some old favorites and some new varietals as well. The governor has 30 days from bill passage to swirl his glass, see what he thinks of the character, complexity and finish and then either sign or veto.

Now somewhat of a regular offering, SB 936 would double permanent disability rates over a three-year period. And while applicants may be especially drawn to the rather forward finish of this bill, it is widely assumed that the governor will veto this one given his similar action as to prior vintages.

Most likely to be given a thumbs up (and signed into law) is SB 338, which would give applicants a total of five years instead of the current two years in which to collect a maximum of 104 weeks of temporary disability benefits. After significant modification to this bill late in the session, response to this watered-down offering has been rather weak on both sides.

Also up for private gubernatorial tasting for the first time this year is AB 1073, which would do away with the 24-visit cap on physical therapy and chiropractic care for those applicants who’ve undergone surgery. Will the governor drink the entire glass or dump it into the bucket? At least we’ll have a verdict in the near term so we can stop arguing so much about this contentious issue.

The other Comp bills on the governor’s desk have to do with more technical issues that we doubt will be discussed very often at the WCAB or around your water coolers. As soon as we have more information as to the governor’s decisions, we’ll certainly pass it along.

WCAB Updates. There have been some updates at various branches of the WCAB that we’d like to pass along to you.

First off, cheers to Workers’ Compensation Administrative Law Judge Pamela Foust (Marina del Rey) for being honored by the Latino Comp Association as Judge of the Year, 2007! The related dinner reception will be held on September 29th in Los Angeles.

We are saddened, however, to learn of the passing of Workers’ Compensation Administrative Law Judge Charles A. Regnell (Presiding Judge, San Bernardino) following a brief illness. Judge Regnell has been fondly remembered by those who practiced in his courtroom and he will be missed by the Workers’ Compensation community. Our condolences are extended to his family, friends and co-workers.

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