California: SB 863 Checklist and Reference Guide

SB 863 CHECKLIST & REFERENCE GUIDE

 By Robert G. Rassp, Esq.

© Copyright 2012 LexisNexis. All rights reserved. This SB 863 Checklist & Reference Guide is excerpted from The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, 2013 Edition (available February 2013).

□ 1997 PDRS

• Based on work restrictions
• Applies to DOI prior to 1/1/05 if
  • IW is P&S prior to 1/1/05
  • PD notices should have been sent to IW prior to 1/1/05
  • Treating or evaluating physician indicated the existence of PD prior to 1/1/05 that constitutes substantial evidence

□ 2005 PDRS

• AMA Guides 5th Edition applies DOI 1/1/05 through 12/31/12
• AMA Guides 5th Edition may apply for DOI prior to 1/1/05, per Lab. Code § 4660(d)
• Rating string = xx.xx.xx.xx. – WPI – [DFEC] – OCC – AGE = % PD

□ 2013 PDRS

• AMA Guides 5th Edition still applies for DOI on or after 1/1/13
• Eliminates DFEC adjustment factors Ranks 1 through 8
• Uses 1.4 “adjustment factor” for each WPI rating for each part of body injured
• Rating string = xx.xx.xx.xx – WPI – [WPI x 1.4] – OCC – AGE = % PD
• AD may adopt new modifiers for occupational variants and age adjustments that promote uniformity, objectivity and consistency but new modifiers are not mandatory
• Use occupational variants and age adjustments in 2005 PDRS in the meantime
• 1997, 2005 and 2013 PDRS can be rebutted
• Use 2006 “money chart” for number of weeks of payment of PD for DOI on or after 1/1/13
• For dates of injury on or after 1/1/13:
  • 0 – 54%  PD = Maximum PD is $230.00 per week
  • 55%-69% PD = Maximum PD is $270.00 per week
  • 70% - 90%  PD = Maximum PD is $290.00 per week
• For dates of injury on or after 1/1/14:
  • 0 – 99% PD = Maximum $290.00 per week
• Life Pensions and COLAs are calculated at the higher beginning PD money rates but otherwise remain the same – Lab. Code § 4659 was not amended in SB 863

□ When PD is paid if the IW is working on the date of MMI

• Applies to all dates of injury
• If earnings at MMI with same employer is 85% wages on DOI, or
• If earnings at MMI with different employer is 100% or greater than wages on DOI then no permanent disability advances are paid
• PD is paid only when there is an F&A or Stip Award
• PD is paid retroactively to end of TTD payment or MMI date, whichever is earlier

□ Return to Work Fund – Lab. Code § 139.48

• Applies to DOI on or after 1/1/13
• May apply to any DOI but DFEC accounts for this already for cases falling under 2005 PDRS?

□ 15% PD “Bump-up” and 15% PD “Bump-down”

• Does not apply to DOI on or after 1/1/13
• Applies for 2005 PDRS cases within 60 days of MMI/P&S by first treating or evaluating physician and no offer of regular, modified or alternative work by employer

□ Supplemental Job Displacement Benefits – Lab. Code § 4658.5

• DOI prior to 1/1/13
  • Provided if employer does not offer regular, modified or alternative work within 60 days of any treating or evaluating physician who indicates IW is QIW
  • PD less than 15% = $4.000.00
  • PD 15%-25% = $6,000.00
  • PD 26% - 49% = $8,000.00
  • PD greater than 50% = $10,000.00
  • May change if AME or PQME raises or lowers PD rating
• DOI on or after 1/1/13:
  • $6,000.00 SJDB voucher regardless of amount of PD
  • $500.00 “no questions asked” cash advance
• If IW receives voucher on or after 1/1/13 regardless of the date of injury
  • Voucher expires 2 years from its issuance date or 5 years from the DOI, whichever is later
  • Voucher cannot be settled for a lump sum payment of cash

□ AME and PQME Process – Lab. Code § 4062.2

• Lab. Code § 4060 AOE/COE process has not changed
  • No earlier than the first working day that is at least 10 days after the date of mailing of a request for a medical evaluation, either party may request a panel QME list
• AME or PQME under Lab. Code § 4061 or 4062
  • No earlier than the first working day that is at least 10 days after the mailing of an objection pursuant to Lab. Code §§ 4061 or 4062, either party may request a panel QME list
• You have ten days from date of DWC assignment of a panel list to strike a name
• AME and PQME physicians no longer determine medical necessity
  • Second opinion spinal surgery per Lab. Code § 4062.2(b) is repealed regardless of DOI
  • AME or PQME only decides injury AOE/COE, parts of body injured, WPI ratings, apportionment, and need for further medical treatment
• Parties can agree to an AME at any time (Lab. Code § 4062.2(f))
  • On any issue except a UR denial, modification or delay since those are subject to IMR process

□ Independent Medical Review

• Applies to UR denials, modifications or delays for DOI on or after 1/1/13 for medical necessity
• Applies to any DOI with UR denials, modifications or delays as of 7/1/13 for medical necessity
• IW has burden of appeal UR denial, modification or delay to IMR
• See Health & Safety Code §§ 1374.3–1374.36 and 1370.4 (experimental and investigational procedures)
• See 28 Cal. Code Reg. §§ 1300.74.30 and 1300.70.4
• IW may designate a “designee” to represent IW in IMR process
  • Cannot designate agent prior to an UR dispute

□ Medical Provider Networks

• Medical Access Assistants as of 1/1/14, 7:00 am to 8:00 pm, Mondays through Saturdays
• Dispute over diagnosis or treatment recommendations by MPN physician
  • IMR process under Lab. Code §§ 4616.3 and 4616.4 and 8 Cal. Code Reg. § 9768.1 after a third MPN physician’s opinion
  • We don’t think anyone has used this in 8 years!
  • This is a different IMR process than is now required for UR denial, modifications or delays under medical necessity issues

□ Home Health Care

• Fee schedule by 7/1/13 – Lab. Code § 5307.8
• Cannot cover services rendered “in same manner and to the same degree” by a family member prior to date of injury
• Attorney’s fees are allowed under Lab. Code § 4906 and regulations

□ Vocational experts

• Fee schedule by 1/1/13
• Reports are admissible if expert certifies opinion as based on personal knowledge, experience, education and skills
• Reports to be signed under penalty of perjury
• No live testimony unless a showing of good cause
• In other words, take the expert’s deposition instead
• Applies regardless of the date of injury

□ Photocopy companies

• Fee schedule by 12/31/13

□ Liens

• Drop dead date 1/1/14 dismissal by operation of law if no activation or filing fee paid
• Statute of limitations
  • 3 years from date of service, or 18 months from date of medical treatment service if services are provided on or after 7/1/13
  • Health care providers, group disability insurers, or self-insured welfare benefit plans 12 months after knowledge services were for work related condition, but no later than 5 years from date of service
  • Lien claimant activation and filing fees
    • Must be paid electronically
    • Effective by emergency regulations on or after 1/1/13 regardless of date of injury
    • Lien claimant has to prove payment when DOR is filed
    • If DOR is filed, other lien claimants have to prove payment “prior to time of” lien conference
    • If filing or activation fees not proven paid by time of lien conference then lien is dismissed with prejudice (Lab. Code § 4903.06)
    • Statutory offer of compromise required to have loser pay lien filing or activation fees (Lab. Code § 4903.07)
    • Filing lien without filing fee or activation fee does not toll statute of limitations (Lab. Code § 4903.05(c)(2))

□ Burial expenses

• $10,000.00 if date of injury is on or after 1/1/13
  • Has not been increased in 22 years!

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Read The Rassp Report, a law blog by Robert G. Rassp, Esq.