Workers Compensation Claims: Blindspots and Risks

Transcription

1 Workers Compensation Claims: Blindspots and Risks March 19, 2015 Sean G. Hermanson Patrico, Hermanson & Guzman, A P.C.

2 Patrico, Hermanson & Guzman a Professional Corporation Serving Most of California San Diego Office (858) Bay Area Office (650) Riverside Office (951) Santa Ana Office (714) Salinas Office (831)

3 Overview Cost containment UR / IMR MPNs Liens Penalties Interest Fees Sanctions Cost effectiveness Delay and denial Early settlement When to fight v. when to flee

4 UR / IMR Reporting Duties of PTP PTP shall render opinions on all medical issues necessary to determine the employee s eligibility for compensation (Cal. Code of Regulations, title 8, 9785(d)) Only 1 PTP at a time! ( 9785(b)(1)) Secondary treating physicians and other providers report to PTP ( 9785(e)(3)) PTP incorporates findings/recommendations of other providers ( 9785(e)(4)) So, ONLY the PTP can request authorization for treatment For injuries after 1/1/04, chiropractor cannot be PTP after 24 visits ( 9785(a)(1))

5 UR / IMR Reporting Duties of PTP PTP reporting timeframes ( 9785 (e), (f), (h)) 5 working days from initial evaluation 20 days from: Examination date (unless initial eval) P&S designation Receipt of reports from other providers Unexpected significant change in condition / treatment plan Return to modified / regular work Off work / cannot engage in usual & customary job duties Release from care Requested information from Defendant

6 UR / IMR Request for Authorization DWC Form RFA ( ) Specific course of proposed medical treatment ( (t)) MUST attach substantiating documentation ( 9785(g); (t)(2)) MUST be signed by PTP ( (t)(3)) Defendant MAY accept a Request for Authorization that does not utilize RFA if: Request for Authorization and all requested treatment on first page Request accompanied by supporting documentation ( (c)(2)(B))

7 UR / IMR Utilization Review Is UR necessary? Denied claim? Disputed part of body? Request by provider other than PTP? MPN? (see LC ) UR reviews treatment recommendations by PTP to determine medical necessity to cure or relieve the injured worker from the effects of his/her injury (Cal. Labor Code section 4610(a)) Prospective / concurrent Retrospective

8 UR / IMR Utilization Review Timeframes: UR decision (or request for additional info) within 5 working days from receipt of information reasonably necessary to make determination (LC 4610(g)(1); (f)) UNLESS imminent and serious health threat 72 hours (LC 4610(g)(2)) Never more than 14 days from PTP request Retrospective decisions within 30 days Communicated to requesting physician within 24 hours of decision (LC 4610(g)(3)(A) Initial communication with doctor by phone or fax Decision to modify/delay/deny is effective for 12 months If same PTP, same treatment, no change in material facts (LC 4610(g)(6))

9 UR / IMR Utilization Review UR Content (if modify/delay/deny): By licensed, competent physician (LC 4610(e)) Non-physician can approve requests ( (b)(3)) When request was received When decision made Medicals reviewed Clear explanation of decision Clear statement of IMR process and IMR form ( (e)(5)) UR must be served on employee, AA, DA, and requesting doctor

10 UR / IMR Independent Medical Review Only way to appeal UR decisions (LC (b),(e)) Limited to issue of medical necessity of requested treatment (LC (a)) Employee has 30 days from service of UR decision on employee (LC (h)(1); (b)) Defendant has 10 days from AD notice to provide to IMR: Relevant, current medical records Materials provided by requesting physician s materials Copies to employee, AA, and requesting physician (LC (l) Defendant bears the cost of IMR! (LC (l); (a))

11 UR / IMR Independent Medical Review IMR decision: Within 30 days of receipt of request for review and supporting docs (LC (d); (g)) Binding on all parties (LC (g)) Can only be challenged via verified appeal with WCAB within 30 days that IMR decision was mailed (LC (h)) IMR terminated upon written authorization of treatment (LC (g)) Pending IMR decisions when case is settled?

12 UR / IMR Dubon III (en banc) Decision WCAB vs. IMR jurisdiction WCAB can decide issues of medical necessity ONLY in cases where UR is untimely WCAB to decide legal issues regarding timeliness IF WCAB has jurisdiction, the employee still has the burden to prove that the treatment is medically necessary All other disputes regarding a UR decision MUST be resolved by IMR Creative AA arguments regarding what constitutes an untimely UR In Bodam significant panel decision, WCAB held that untimely communication of decision = untimely UR

13 UR / IMR Cost Containment Tips UR to determine medical necessity to cure or relieve effects of industrial injury Look for other issues / defenses Ensure timeliness of UR decisions to avoid unnecessary WCAB hearings Cost / benefit analysis of IMR for specific treatment Notify IMR upon claim settlement, if outstanding decisions

14 MPNs - Generally Employer is responsible for medical treatment that is reasonably required to cure or relieve the injured worker from the effects of his/her injury (LC 4600(a)) Employer may establish an MPN for the provision of medical treatment to injured workers (LC 4616(a)) Access standards ( ): PTP & emergency hospital within 30 min / 15 miles of each covered employee s residence or workplace Occupational health & specialists within 60 min / 30 miles Alternate standards if unreasonably restrictive (i.e. rural areas)

15 MPNs Notice (at hire/implementation) Employer shall post, in a conspicuous location frequented by employees, notice of current WC information: English & Spanish Emergency treatment, injuries covered by WC, right to treatment/indemnity To whom injuries should be reported Time limits MPN information, effective date of MPN, how to access Pre-designation exception How to get more info on WC, MPN (LC 3550; 9881)

16 MPNs Notice (at hire/implementation) Employer shall provide written notice of the posted information, in English & Spanish, to every new employee, and/or at the time of MPN implementation (LC 3551; ; 9880) Keeping track of employer-level notice: Photos of workplace postings Photos of employees next to postings? MPN information as part of new employee paperwork Employee to sign confirmation of receipt of MPN information

17 MPNs Notice (at injury) Employer shall arrange for a initial medical evaluation within 1 working day of claim form (LC (a); (a)) Employer shall notify employee of existence of MPN, right to change PTPs, how to access list of MPN doctors (LC (b); (d)) MPN can be enforced during decision period! ( (c)) Failure to provide/post notice shall NOT be a basis for treatment outside of the MPN (LC (b)) Unless employee can show that the failure resulted in a denial of medical care

18 MPNs Knight (en banc) case Employer s failure to provide required MPN notices, that results in a neglect or refusal to provide reasonable medical treatment, renders the employer liable for reasonable medical treatment self-procured by the employee Duty to provide notice at hire/implementation AND at injury Employer carries the burden of proving whether employee was provided notice of MPN rights

19 MPNs Valdez (CA Supreme Court) case Post-SB 863 Non-MPN reports are admissible BUT privately-retained doctors reports cannot be the sole basis for an award for compensation (LC 4605) BUT employer is not legally obligated to pay for self-procured reports outside of MPN

20 MPNs Transfer of Care For existing injury at the time of MPN implementation; if notice not properly given at hire/implementation or injury; if claim has slipped through the cracks and applicant treating outside of MPN Transfer of Care notice to employee, AA, PTP ( (f)) English and Spanish Employee would be entitled to complete treatment outside of MPN if acute condition, serious/chronic condition, terminal illness, performance of surgery or other authorized procedure ( (e)) Per PTP report finding one of the above within 20 days of Notice ( (g))

21 MPNs Cost Containment Tips Thorough employer documentation at hire / implementation Signed acknowledgments, photographs, updated postings Timely employer response at injury Treatment within MPN within 24 hours of injury reporting Keep employee within MPN during 90-day decision period DOR for Expedited Hearing Inquiry into MPN notice at applicant s deposition Transfer of Care for old injuries, or if notice was improper at hire / implementation or injury

22 Liens Generally (LC 4903) Reasonable attorney fee for legal services Reasonable value of living expenses Reasonable burial expenses Unemployment compensation disability benefits Reasonable expense incurred by, or on behalf of, the injured employee under LC 4600 For treatment reasonably required to cure or relieve the inured worker for the effects of his / her injury

23 Liens During Case-In-Chief Keep employee s treatment within the MPN Treatment requests through UR Closely monitor employee treatment Immediate objections to non-mpn, denied, unauthorized treatment Nurse case manager involvement DOR for Expedited Hearing Suspension of benefits to applicant? Thomas language in Compromise and Release Entire claim AOE/COE, or for certain parts of body

24 Liens Parties Burdens of Proof Lien claimant has evidentiary burden of proof on all issues by a preponderance of the evidence (LC ; LC 5705) Injury AOE/COE Reasonableness/necessity of treatment Reasonableness of billing Burden shifts to Defendant to prove up affirmative defenses Lien filed outside of Statute of Limitations (LC ) Laches MPN UR non-cert

25 Liens Torres (en banc) Case Lien claimant must prove, by preponderance of evidence, all elements necessary to establish the validity of their lien Lien claimant CANNOT establish a prima facie right to recovery simply by submitting a billing statement Lien claimant subject to sanctions for frivolous and bad faith conduct

26 Liens Independent Bill Review If medical provider disputes the amount of payment made by Defendant (DOS after 1/1/13), second review may be requested within 90 days of EOB Final written determination within 14 days Payment of any additional amounts owed within 21 days If provider continues to dispute amount of payment after second review, IBR will be requested ( ) Within 30 days of second review (LC (a))

27 Liens Independent Bill Review (LC ) Lien claimant to provide documentation to IBR With copy to Defendant Lien claimant to pay fee to IBR Determination is final and binding, unless an appeal filed with WCAB within 20 days

28 Liens Cost Containment Tips Cultivate lien defenses during case-in-chief MPN enforcement UR Timely objections / EOBs upon receipt of disputed bills Limiting language in settlement documents Comply with IBR protocol

29 Penalties Self-Imposed Penalties Indemnity payments not made timely shall be increased by 10% (LC 4650(d)) Not dependent on finding of unreasonable delay (Rhiner v. WCAB (1993) 4 Cal. 4 th 1213) No SIP if no claim form has been filed No SIP if claim is delayed No SIP if incorrect rate paid while awaiting supplemental wage information (Skuse v. WCAB (2000) 65 CCC 594)

30 Penalties Self-Imposed Penalties Medical payments not timely made shall be increased by 15% (LC ) AND interest at prevailing rate (currently 10% per annum) No SIP if written objection within 30 days

31 Penalties Medical-Legal Expenses Med-legal expenses not timely made shall be increased by 10% (LC 4622) AND interest at 7% per annum No penalties if timely objection by Defendant Provider than has 90 days to contest Defendant s objection If provider contests Defendant s objection, Defendant to file DOR within 60 days If provider prevails at WCAB, then 10% penalty + 7% interest applicable Interest and LC 5814 penalties are NOT applicable in med-legal dispute process (LC 4622(e)(3))

32 Penalties Unreasonable Delay When payment of compensation has been unreasonably delayed or refused, the amount shall be increased by up to 25%, or up to $10,000.00, whichever is less (LC 5814) Compensation includes TD, PD, medical, interest Requires a WCAB finding after Trial Petition for LC 5814 Penalties must be filed within 2 years of date that compensation was due Safe harbor when Defendant discovers violation within 90 days and pays amount with 10% SIP

33 Penalties Unreasonable Delay Computed by WCAB to accomplish fair balance and substantial justice between the parties (LC 5814(a)) Multiple factors listed in Ramirez v. Drive Financial Services (2008) 73 CCC 1324 [en banc]) Presumption of resolution when settlement by C&R, F&A, or Stipulated Award (LC 5814(c)) Unless settlement documents say otherwise

34 Penalties Super Penalty If employer / insurer knowingly violates LC 5814 with a frequency that indicates a general business practice, they are liable for administrative penalties Up to $400,000.00!

35 Interest Interest follows Award (LC 5800) Including C&R, F&A, Stips, and even LC 5710 fees! Runs from the filing of award (Holston-Harris v. WCAB (1998) 63 CCC 639) Does NOT need to be specifically awarded Currently 10% Preprinted interest waiver in WCAB C&R, but NOT in WCAB Stipulated Award

36 Sanctions Reasonable expenses incurred by a party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay (LC 5813) Can also include payment up to $2, to General Fund Can be leveled against employee, employer, carrier, TPA, lien claimant, attorney, non-attorney representative

37 Penalties, Interest, Fees, and Sanctions - Cost Containment Tips Identify circumstances that warrant a SIP Compliance with LC 4622 dispute process for medical-legal expenses Including DOR, if necessary Timely objection to medical bills Include waiver language in settlement documents Monitor 2-year statute of limitations for LC 5814 penalties

38 Cost Effectiveness Delay and Denial Employer has 90 days from filing of claim form to reject liability (LC 5402) Otherwise, claim will be presumed compensable Presumption is rebuttable ONLY be evidence discovered subsequent to 90-day period During 90-day period: Closely monitor treatment; ensure MPN compliance Employer investigation Personnel consideration; witnesses interviews; investigation Deposition of applicant Subpoenaed records

39 Cost Effectiveness Denial Considerations Employee veracity and level of cooperation Employer considerations Witnesses Documentary evidence Factual v. medical denial Current treatment Other evidence Sub rosa Subpoenaed records

40 Cost Effectiveness Early Settlement Before filing of Application with the WCAB Before employee retains an attorney And before Defendant retains an attorney! At deposition Before medical-legal evaluation Before significant treatment and liens Allows for quick closure What is a nominal settlement?

41 Cost Effectiveness When to Fight v. When to Flee Strength of Denial Chances of prevailing at Trial with current evidence Costs of further discovery (deposition, DA, treatment, med-legal) Claim activity Multiple parts of body alleged Resisting MPN compliance Employment status of employee Age of employee Close to dreaded MSA/CMS threshold?

42 Questions?

43 Patrico, Hermanson & Guzman a Professional Corporation Serving Most of California San Diego Office (858) Bay Area Office (650) Riverside Office (951) Santa Ana Office (714) Salinas Office (831)

44 Workers Compensation Claims: Blindspots and Risks March 19, 2015 Sean G. Hermanson Patrico, Hermanson & Guzman, A P.C.