NEW DWC PROCEDURES – NOT ESTABLISHED BY STATUTE – THREATEN THE CALIFORNIA WORKERS’ COMPENSATION SYSTEM

Law1199.com Newsletter 2015 Issue #1, entitled “The Current Workers’ Com­pen­sa­tion Sys­tem Violates the Bargain Between Employers and Workers and Creates a Burden on Society”, reflected the development of Workers’ Compensation throughout Europe and the United States and encompassed the encumbrance placed upon California workers by the passage of Senate Bill 899 in 2004 which created the Medical Provider Network­. The California Work Comp system subsequently was further burdened when Gov. Brown signed Senate Bill 863 on September 18, 2012.

Since the issuance of Law1199.com Newsletter 2015 Issue #1, additional enlighten­ment has occurred regarding the burden placed upon California Workers as a result of the 2004 and 2012 legislation, and the failure of the amendments which have legis­latively been put in place, causing great harm to the state’s workers. Law1199.com News­letter 2019 Issue #3 contained a discussion of the corrective actions which are needed and can be imple­mented to allow California workers to independently make their own decisions as to the ave­nues they choose to access the medical care they need.

On February 13, 2020, a lawsuit was filed seeking a Writ of Mandate (legally defined as “a court order to a government agency . . . to follow the law by correcting its prior actions or ceasing illegal acts”) to correct the existing Workers’ Compensation sys­tem. This lawsuit in the Supe­rior Court is an extraordinary move to force the Cali­fornia Department of Industrial Relations and the Division of Workers’ Compensation to comply with their legal obligation to provide California workers with access to medical care to cure or relieve the effects of their work-related injuries as set forth in the California Constitution.

The only avenue to challenge treatment denials made by doctors relative to the care

prescribed by a worker’s treating doctor is through the Independent Medical Review (IMR) process, which requires workers to file an application for such review with the Depart­ment of Industrial Rela­tions, Division of Workers’ Compensation. Unfortu­nately, more than 80-to-90% of the appeals made to IMR are denied, and because of the cloak of secrecy protecting IMR doctors (80-to-90% denial) (as their identities are never made known), their deter­mi­nations cannot be ques­tioned. More­over, IMR doc­tors (80-to-90% denial) never see their patients, and they are not even required to be licensed in the state of California. The IMR protocol is clearly set up to support the deci­sions of Utiliza­tion Review (UR).

The IMR protocol also has a second review process to review and evaluate the medi­cal care which has been provided by Employer Medical Provider Network physicians, who are selected by em­ploy­ers. If a worker disagrees with the opinion of a treater who is part of the Employer MPN, he/she can request a second and third opinion (from other doctors who are also part of the Employer MPN) as to the medical care in question. If these second and third doctor opinions are still not satisfactory to the needs of the injured worker, the worker’s only remaining option is to file an appeal through Independent Med­ical Review, where the appeal will be subject to the determinations of an un­known doctor who never sees the worker and may not even be licensed in the state of California.

It has come to light that the Division of Workers’ Compensation (DWC) has unilaterally set forth its own additional steps which are not mandated by the Labor Code but must be met by injured workers. If these steps are not met, workers have no way to move forward to challenge medical care denials. The steps mentioned consist of interroga­tories cre­ated by the DWC — something which, again, is not required by the legislative enactments in the Labor Code.

Two cases have arisen — Scott Pace and Scott Hines — in which the interrogatories were provided to the workers. These interrogatories, created unilaterally by the DWC, go beyond the scope of the legis­lative mandate and have created an additional thresh­old for injured workers to meet. Workers who dispute the denial, delay or restriction of medical care made by Employer MPN doctors have only the one option of using the IMR pro­tocol. Again, however, this protocol is set up to sup­port the denial of medical care. As mentioned above, the names of IMR (80-to-90% denial) doctors are with­held from the public, they never see their patients, and they don’t even have to be licensed in the state of California.

The Department of Workers’ Compensation’s creation of interrogatory templates has created another template which again is not set forth in any California statute, as correctly described by Juan M. Armenta, Esq., the attorney for Mr. Pace and Mr. Hines, as “under­ground rule-making activities”.

The current system involving Employer MPN doctors, Utilization Review and Inde­pen­dent Med­i­cal Review is used by employers to deny or delay medical care. If an injured worker does not accept the Employer MPN doctor’s recommendations, his/her oppor­tu­nity for a second or third doctor’s opinion simply involves further use of other Employer MPN doctors, with the final step being an appeal of their denials through Inde­pendent Medical Review..

What the DIR/DWC has done is to add an additional threshold of inquiry as to spe­cifically why an applicant disagrees with the Employer MPN doctor’s determinations, and to ask the worker as to what form of treatment he or she would like to have as opposed to what has been recom­mended by the Employer MPN doctors. This practice is operating in a man­ner which is contrary to what is established and goes outside the parameters of current policies and pro­ce­dures. The counsel for the workers has correctly identified these DWC regulations and inter­rogatories which are not set forth by any statute as “underground rule-making activities”. This practice further delays treat­ment for in­jured workers and places many workers who do not have the advan­tage of having counsel in a position where they are more vulnerable to a denial of care for not answering the inquiries.

On 11/19/19, the California State Auditor, Elaine M. Howle, C.P.A., issued a report to the Governor of California, the President Pro Tem of the Senate, and the Speaker of the Assem­bly. In this report, Ms. Howle found that the DWC was not adequately over­seeing the sys­tem to ensure that California workers have access to the benefits to which they are entitled.

One of the failures existing at that time — and which continues to date — is the Divi­sion of Workers’ Compensation’s failure to ensure that the system has a suffi­cient num­ber of Qualified Medical Evaluators to meet demands. The additional finding as to the “underground rule-making activities” employed by the DWC as set forth in the writ by the attorney (Mr. Armenta) representing Mr. Pace and Mr. Hines re­flects an ongoing lack of ack­nowl­edgment of the necessity of having a system which works and provides care so injured workers can be cured or relieved of the effects of their injuries and then return to work, minimizing the disability benefits which em­ploy­ers have to pay.

The use of interrogatories upon injured workers is a means of seeking to have workers share their medical opinions as to the type and extent of treatment needed. This is not within the scope of the worker’s knowledge or expertise, and only serves to delay or deny a worker’s ability to receive the care which is actually necessary.

The current usage of interrogatories by the Department of Workers’ Compensation needs to cease. It is essential for the legislative body to be aware of the failure and inadequacies of the present system, and the resulting need to rectify same.

The current wave of interrogatories which is eviscerating the California Workers’ Com­pen­­sa­tion system should strongly propel the legislative changes which have been pre­vi­ously recommended.

Law1199.com Newsletter™

THE LAW OFFICES OF                       Bobbitt, Pinckard

               Scott A. O’Mara                   & Fields, A.P.C.

2370 Fifth Ave.                                                        8388 Vickers St.

San Diego, CA 92101                                        San Diego, CA 92111

4200 Latham St. – Ste. B                                                4200 Latham St. – Ste. B

Riverside, CA 92501-1766                                            Riverside, CA 92501-1766

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951-276-1199

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NOTICE: Making a false or frau­du­lent Wor­kers’ Compensa­tion claim is a fel­ony sub­ject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, which­ever is greater, or by both impris­on­ment and fine.

THE LAW OFFICES OF SCOTT A. O’MARA
2370 Fifth Ave. San Diego, CA 92101
4200 Latham St. – Ste. B Riverside, CA 92501-1766
1-800-LAW-1199 (1-800-529-1199)
619-583-1199 951-276-1199
www.law1199.com
BOBBITT, PINCKARD & FIELDS, A.P.C.
8388 Vickers St. San Diego, CA 92111
4200 Latham St. – Ste. B Riverside, CA 92501-1766
858-467-1199
www.coplaw.org

NOTICE: Making a false or fraudulent Workers’ Compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.