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By David Bryan Leonard, Esq.
The 2013 California Applicant’s Attorney’s Association (CAAA) winter convention commenced January 24, 2013, in San Diego, California. This has been the first large CAAA convention since the implementation of Senate Bill 863 (SB 863).
In an ongoing tradition to both educate and recognize past achievement, Marc Marcus, Esq. will be honored with the Eugene Marias award. This award is presented to attorneys who have achieved the highest level of excellence and professionalism in representing injured workers in California.
The 2013 convention opened with a discussion moderated by CAAA past president Adam Dombchik, Esq., and panelists A. Keith Lesar, Esq., Thomas Martin, Esq. and Aaron Sussman, Esq. The topic presented was the issue of medical control of the injured worker’s treatment in the environment of Medical Provider Networks (MPNS). The panel began with a discussion of how to define an MPN. Reference was made to California Code of Regulations, Title 8, section 9767 et seq. and Labor Code Section 4616. It moved on to the duties of the employer and the need for employee access to quality medical care. The panel noted the numerous requirements that the employer must meet in order to effectuate its control under the MPN guidelines. It was observed that if the MPN failed to adhere to its statutory duties, the employer would lose control, and the injured worker would be allowed to self-procure treatment from a physician of his or her choice. The panel emphasized that in SB 863 the Legislature expressed a deep concern for the quality of medical care provided to injured workers and imposed numerous mandatory requirements on the employers and insurance carriers. It was emphasized that, in future cases, the question presented for legal consideration will center on whether or not the insured, employer and MPN have complied with their obligations. This is a much deeper analysis than the simple question of whether an MPN exists. Not only must it exist, the MPN notices, accessibility and quality of care must be present; otherwise, applicants’ attorneys will seek medical control. The issue of piecemeal medical treatment was discussed. It was noted that, in many cases, the employer will accept one body part and deny treatment for contested body parts. The panel asserted that if one body part is accepted, the MPN is required to treat all body parts alleged to have been injured. It was suggested that if the MPN fails to provide complete treatment, that was a denial of medical care warranting intervention. Additionally, if treatment is not being provided in a manner consistent with the MTUS, that, too, would constitute a denial of care subjecting the employer/carrier to a loss of medical control. The panel closed with a discussion of Utilization Review and Independent Medical Review. It noted that these two review processes only address the issue of medical treatment and do not resolve legal questions of liability, such as injury AOE/COE or MPN compliance.
Next, the Honorable WCJ Paige Levy along with Sheldon S. Cohen, Esq. and David Skaggs, Esq. presented a panel on Discovery and Applicant’s Right of Privacy. Focus was presented on how to draft and quash subpoenas, and what type of evidence is admissible and relevant. In addition, practice points were provided on how to present and spot objections to be raised in the deposition process.
Day one of the convention closed with a return to the issue of medical control. The final set of panelists focused on the issue of medical treatment control and how to use expedited hearings to advance your case. The panel consisted of Russell Glauber, Esq., Clint Fedderson, Esq., Robert Wyman, Esq. and Michael Bernard, Esq. Echoing the opening message, this panel also asserted SB 863 as a clear message by the Legislature that quality medical treatment, along with provider control, are significant issues in the California workers’ compensation system. They observed that, with SB 863, practitioners are now presented with numerous opportunities to enforce the strict MPN compliance obligations created by SB 863 while obtaining rapid resolution of medical treatment control disputes whenever medical care is denied.
To achieve this goal, it was explained that under Labor Code Section 5502(b), expedited hearings are now allowed on the threshold issue of whether or not the injured employee is required to obtain treatment within an MPN. The applicant-oriented participants of the panel anticipated that the use of expedited hearings on the issue of MPN control would provide a powerful tool to help injured workers obtain expeditious access to medical treatment benefits. Defense attorney Bernard noted that lack of utilization of MPN protocol was also an issue to employers. It was generally agreed that because of the significance of medical control, the use of expedited hearings to resolve the MPN treatment denial disputes would probably increase. The panel concluded with the observation that the best presented expedited case is one that it is documented with evidence of treatment denial and/or MPN compliance.
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