A BRIEF SUMMARY OF NEW LAWS TAKING EFFECT, SOME CASE DECISIONS OF 2011, AND SOME PRACTICE SUGGESTIONS

New laws that take effect 1-1-12ⁱ

• AB 228 – SCIF MAY INSURE TEMPORARY OUT-OF-STATE EMPLOYEES: Amends the California Insurance Code to authorize the State Compensation Insurance Fund (SCIF) to provide workers’ compensation coverage to a California employer, whose principal place of business is in California, for those California employees, temporarily working outside of California on a specific assignment, provided that SCIF insures the employer’s other employees who work within California.
• AB 335 – NEW NOTICES TO INJURED WORKERS AND BOOKLET: Requires the Division of Workers’ Compensation Administrative Director (AD) in consultation with the Commission on Health and Safety and Workers’ Compensation (CHSWC) to prescribe reasonable rules and regulations regarding notices to injured workers; requires AD in consultation with CHSWC, to prescribe and make accessible, a booklet written in plain language, about the overall workers’ compensation claims process and it making it available on the department’s Internet Web site. Requires notices to be written in “plain language.”
• AB 378 – COMPOUND DRUGS/OTHER DRUGS: This bill requires any “compounded drug product” as defined in 16 CCR 1735 to be billed by the pharmacy at the ingredient level, with each ingredient identified by using the applicable National Drug Code (NDC) of the ingredient and quantity thereof, in accordance with regulations adopted by the State Board of Pharmacy. Ingredients with no NDC shall not be separately reimbursable. Establishes set maximum reimbursement for a dangerous drug, dangerous device or other pharmacy goods, dispensed by a physician. This bill also amends existing law by adding pharmacy goods to the list of “medical goods” or services for which it is unlawful for a physician to refer to a person, if there is a financial conflict-of-interest.
• AB 397: LICENSED CONTRACTORS: Bill requires active contractor, upon renewal, with an exemption for workers’ compensation insurance on file, either to recertify the exemption or provide valid Certificate of Workers’ Compensation Insurance or Certificate of Self-Insurance. Also, permits retroactive license renewal upon showing of proper documentation.
• AB 585: EXTENSION OF CANCER PRESUMPTION: Extends the cancer presumption for active firefighters and peace officers under Labor Code 3212.1 to firefighters of a fire department serving NASA, provided there is adherence to the training standards under the Health and Safety Code.
• AB 1168: FEE SCHEDULE FOR VOCATIONAL EXPERTS: Adds Section 5307.7 to the Labor Code, and requires the AD to adopt regulations on or before 1/1/13, establishing a new fee schedule of hourly fees for vocational experts, including vocational evaluations and for testimony.
• AB 1426: COURT ADMINISTRATOR ABOLISHED: The position of the Court Administrator is eliminated and those former duties are now distributed to the WCAB and to the Administrative Director of the DWC. (This bill actually took effect by urgency in 2011). This bill amends Labor Code 5307 to exclude all references to the Court Administrator. But, all existing regulations of the Court Administrator remain, unless and until they are amended or repealed either by the WCAB or the AD.
• SB 459: MISCLASSIFICATION OF EMPLOYEES AS INDEPENDENT CONTRACTORS: Adds Section 226.8 to the Labor Code making it unlawful to misclassify an individual as an independent contractor; imposes civil penalties for violations.
• SB 826: DWC CAN ASSESS ADMINISTRATIVE PENALTY FOR VIOLATION OF DATA REPORTING REQUIREMENTS: This bill would require the DWC to impose administrative penalties, based upon a schedule, of no more than $5,000 against a Claims Administrator, in any single year, for a violation of the data reporting requirements. Also, requires the AD to publish an annual report, disclosing compliance rates of Claims Administrators.

Mileage Remains The Same

• Mileage for 1/1/12: Effective 7/1/11 the mileage rate is $.555 (55.5 cents) per mile, regardless of the date of injury and there is no change.
• According to the DWC Newsline No. 59-11, 12/16/11. ⁱⁱ
• No change for mileage rate for medical and medical-legal travel expenses in 2012
• The current mileage rate of 55.5¢ for medical and medical-legal travel expenses will remain unchanged in 2012. This rate must be paid for travel on or after Jan. 1, 2012 regardless of the date of injury.
• Labor Code section 4600, in conjunction with Government Code section 19820 and the Department of Personnel Administration regulations, establishes the rate payable for mileage reimbursement for medical and medical-legal expenses and ties it to the Internal Revenue Service (IRS) published mileage reimbursement rate.
• The latest announcement marks the first time since 2007 that claims administrators will not need to apply a new rate for travel on or after January 1. The mileage reimbursement form is posted on the Division of Workers’ Compensation Web site.

What about the COLAS?

COLA ADJUSTMENTS:

TTD: [Labor Code 4453(a)(10)]: For injuries on 1/1/07, and each January thereafter, COLA adjustment for 1/1/12 increased by 1.0241351% (2.4%) based upon the reported increase in the SAWW from to $979.90 to $1003.55. Therefore, the new maximum TD rate is $1,010.50 per week.

LIFE PENSION AND PTD: [Lab Code 4659(c)]: COLA APPLIES for injuries on or after 1/1/03, as life pension payments are increased annually effective 1/1/04 and each January thereafter. NOTE: The California Supreme Court Issued its decision on the “Duncan issue” in Baker v. WCAB (X.S.) 8/11/11 and has therefore clarified that the COLA provisions apply prospectively from the January 1st following the year in which the worker first becomes entitled to receive a life pension or total permanent disability indemnity, i.e., when the payments actually commence. Here, the high court rejected the previous “Duncan” holding in which potential retroactive COLA adjustments could apply to post 1/1/03 injuries so that in effect, someone with an injury in 2010, who became eligible for a life pension in 2015, could go back to 1/1/04 and have retroactive “COLA” adjustments made to date. Therefore, for 100% permanent disability cases, the COLA’s take effect on the January 1st following the date the injured worker reaches MMI/P & S status. As to life pensions from 70:0 to 99:0, the COLA’s take effect on the January 1st, following the date on which the partial permanent disability becomes exhausted and the life pension payments commence.

WCAB EN BANC DECISTIONS OF 2011

[En banc decisions are binding on all WCAB three member panels and upon all WCAB offices and are therefore citable authority until reversed by the WCAB or by an appellate court]

 

CASE	DECISION
MESSELLE v. PITCO FOODS 11/22/11, 11/4/11 and 9/26/11	FIVE ADDITIONAL DAYS FOR PQME INITIATION REQUEST IF SERVED BY MAIL: Process for initiating PQME requests under Labor Code 4062.2 requires the requesting party to propose in writing, an AME and then absent an agreement, within 10 days of first written proposal, that party may then request a PQME. This decision extends the 10 day period by additional 5 days if the request was made to a party in California and was made by any method other than by personal service. (CCP 1013). NOTE: This decision applies to all requests made on or after 9/26/11. For panel requests made prior to that date, where a panel was prematurely requested, the decision is retroactive, only if the objecting party based their objection on this narrow ground. Otherwise, the decision applies prospectively from 9/26/11.
VALDEZ v. WAREHOUSE DEMO SERVICES 9/27/11, 7/14/11 and 4/20/11	REPORTS FROM NON-MPN DOCTOR ARE INADMISSIBLE ON ALL ISSUES: By far the most important and compelling decision of 2011, the WCAB declared that once it is established that the defendant has a validly established and properly noticed MPN, then medical reports written by out-of-net work physicians are inadmissible and may not be relied upon to support any WCAB award. The WCAB has declared that where unauthorized medical treatment is obtained outside a validly established and properly noticed MPN, medical reports from the non-MPN doctors are inadmissible and that the defendant is also not responsible for the cost of the non-MPN reports. Based upon principles set forth in Tenant/Centinela Hospital Medical Center v. WCAB (Rushing) 65 CCC 477), the WCAB determined that if the applicant goes outside of the validly established and properly noticed MPN, the out-of-network physician is not the PTP and this improper selection does not otherwise change the status of any prior in-network PTP.
GUITRON v. SCIF 3/17/11	INTERPRETERS MAY BE PAID FOR SERVICES DURING TREATMENT: Acknowledging the absence of a statutory basis for permitting interpreting services as an element of providing medical treatment, the WCAB has drawn a comparison to “transportation costs” which while also not part of the statutory scheme, have nonetheless been deemed adjunctive to treatment. Therefore, drawing an analogy to the justification supporting transportation expenses as a reasonable element of medical treatment, the WCAB has now held that interpreting services are an essential adjunctive to the provision of medical treatment, under Labor Code 4600. However, the WCAB has further held that a lien claimant has the burden of proving that the interpreting services in question were reasonably required and that the interpreter was actually present on the date of the treatment visit and that the interpretive services were actually rendered at that time.

Some other notable decisions

CITY AND COUNTY OF SAN FRANCISCO v. WCAB (OGILVIE III): On 7/31/11, the First District Court of Appeal held that there are now three ways to “rebut” the PDRS. (From our Client Bulletin): [note, The Supreme Court declined review of this decision so this case law stands, for now]

• Method One: Presentation of evidence of a factual error in the application of the PDRS, a forumula or a component thereof of an error in the calcuation or application of the formula for the PD rating;
• Method Two: Presentation of evidence that the employee’s diminished future earning capacity is greater than the DFEC adjustment factor in the 2005 PDRS.
• Method Three: “In certain rare cases ⁱⁱⁱ” the scheduled DFEC component may be rebutted by showing that by the nature or severity of the claimant’s injury, the DFEC is not captured within the data used by RAND with their sampling of disabled workers.  Therefore, the schedule can be rebutted by showing the extent to which the injured worker’s actual PD has been aggravated by complications not considered within the RAND data sampling and therefore not provided for within the 2005 PDRS.^iv  Note: this may portend the return of the “vocational expert” which we are already seeing in some cases. 

CITY AND COUNTY OF SAN FRANCISCO v. WCAB: [(2011) 76 CCC 1088]: The 2 year TD Cap under Lab C 4656(c)(1), did not run from the payment of one day of wage loss to attend a PQME examination. This is a writ denied case, which is citable but not in the strength of a published opinion.

CONSTANZA v. HOLIDAY INN: [ADJ 389222/1530924]. Post Termination defense and CT Claims: This comes up often. You receive a new claim from an employee, who was terminated and they go out and file a claim of cumulative trauma after the date upon which they are terminated. Weren’t Labor Code Sections 3600(a)(10) and 3208.3(e) (psyche) supposed to have prevented this? The short answer, at least for CT claims, is not really. Here, the applicant was terminated from his job as a waiter. Two years before, he had a specific injury to his lower back and received care at Kaiser, but did not file a claim.  He filed a CT claim only after he was terminated.  The WCAB found there were  actually two exceptions to the post-termination defense; the first was the specific injury reflecting medical treatment existing prior to notice of termination and the other was the fact that the CT was filed after termination.  Here, once again we go back to the definition of a CT claim (Lab C 5412) which is the date upon which there is concurrent knowledge that the disability is work related.  Here, the concurrence of knowledge did not occur until after the notice of termination, so the CT exception was also applicable.  This was a writ denied case as reported in Work Comp Central.^v

PRACTICE SUGGESTIONS FOR THE NEW YEAR

• NON-MPN TREATMENT AND VALDEZ:

1. In light of Valdez, we strongly recommend that you secure copies of employer required MPN notices, the Labor Code 3550 notice poster, photographs at time of injury and designation of employer witness as to MPN issues, at the onset of your cases.  Assure your attorneys are also provided with the employer notices; photographs, name of employer MPN witness and authorization contacts.  Include a copy of all notices with all lien objections when the provider is not an MPN physician or the provider was a referral from a non-MPN physician.
2. Manage your medical costs further through prompt and timely UR. Also, be alert that some treatment decisions such as the treatment is “out of network”  or “parts of body disputed” are legal defenses and are therefore not UR based, so be on alert for RFA’s which may raise both UR and non-UR issues.

• CHRONIC PAIN:  IS THIS THE NEXT “WAVE” FROM TREATING PHYSICIANS?: The Chronic  Pain Medical Treatment Guidelines, under 8 CCR 9792.20-9792.26, went into effect 7/18/09 and consist of 127 pages of protocols and guides, which are part of the Medical Treatment Utilization Schedule under Lab C 5307.27 and hence are presumptively correct. Here is the link:  http://www.dir.ca.gov/dwc/DWCPropRegs/MTUS_Regulations/MTUS_ChronicPainMedicalTreatmentGuidelines.pdf    A common problem in extended treatment cases often involves the  unlimited and ongoing use of opioids (e.g. Hydrododone, Norco, Oxycodone, Oxycontin, Vicodin, etc.) for the treatment of a condition, for which there is no specific treatment plan addressing the protocols  for chronic pain.  Many doctors don’t even bother with a functional assessment which is the general “baseline” for assessing whether opoid use has resulted in some return to function.  Instead, some doctors will simply ignore the protocols and simply see the patient every 30 days and provide yet another prescription for an opioid or possibly a “pain cocktail.

This is a major problem which should be addressed with the PTP either through a 9785(f)(7) “request for information” letter demanded a reply, as well as through UR.  Also, it is my opinion that failing to consider these Guidelines, may raise issues beyond UR and may permit objections to medical care outside the scope of UR. [on the basis that the report is non-compliant and is therefore not substantive evidence]  Be sure to hold the treating physicians accountable to follow these guidelines. Don’t be afraid to notice the deposition of a recalcitrant PTP.

• REVIEWING A PQME REPORT:  Whether obtained under Lab C 4061.1 or Lab C 4062.2, the PQME reports are critical to the case.  When you receive a report, a first good “rule of thumb” is to immediately check the report to determine whether the physician actually received and then reviewed all of the forwarded exhibits and documents, including non-medical records, if applicable, which were transmitted to the physician, prior to the examination.  A practical problem is that some doctors will examine the applicant before they get around to reviewing records, so that the history as told by the applicant might go unchallenged, if the QME is unfamiliar with the prior records.  Another potential problem is when the QME simply “appends” the records to his/her report without making a single comment about those records or the summary contains information which is inconsistent with the histories but the doctor doesn’t reference this anywhere in the report)!  Next, you should check on apportionment. If the doctor did not “address apportionment to causation” then you can bet the report is probably flawed and it might not even constitute substantial medical evidence.  [Remember, a “late report” must be objected to before it is received or you waive the lateness –per 8 CCR 38] ^vi You should also carefully review the impairment discussion and determine whether the doctor is following the AMA Guides. Quite often, a PQME will write an essentially “fair” report overall but with flaws and errors, which can be used in a litigated case, to possibly negotiate a favorable resolution.
• APPORTIONMENT AND CAUSATION:  The failure to “address” apportionment, under Lab C 4663 and Escobedo rather than failing to find apportionment is the recurrent problem.  Unfortunately, many physicians still view apportionment through the “old” law of pre -SB 899 and will not find “factors of apportionment” unless they believe there was actual disability before the injury.  A “canned” sentence or two, setting forth apportionment is probably not sufficient here.  Every doctor should list “all factors” which caused the impairment, not simply the ones they believe stem from the industrial injury.  Also, some doctors confuse “factors” of apportionment with actual causation of an injury, which often occurs in a psyche case.
• 15% BUMP “UP AND DOWN”: As reported earlier in our Client Alert (10/11), the case law is still unsettled as to from what date does the 60 days to provide the offer to return to work run?  Does it run from the actual time the applicant was permanent and stationary?  As discussed previously in our Client Alert, a strict reading of the regulations, would lead to absurd results, especially when an AME or PQME finds the applicant was MMI/permanent and stationary months or even years before the evaluation, so that it would be functional impossibility to comply with the statute and regulations in a timely fashion as literally written.  As we have recommended previously, we take the position that the 60 days should run from the time the report was received and not upon the actual date the applicant was otherwise found permanent and stationary.  (One panel decision, Ornelez v. Albertertson’s Inc., supports this view –plus 5 days for mailing). 

 

We hope that 2012 is a healthy and happy year for you and your family.

 

Thanks

 

Corey

 

Almost one year ago, the voters in this state elected Governor Jerry Brown to serve his THIRD term as Governor of California.  This was after his prior stint as Governor from 1975-1983 – a gap of almost thirty years between service.  Since his re-election, businesses have been on edge wondering what type of anti-business measures he would sign into law.  The California Chamber of Commerce was also on edge and immediately started monitoring the laws that could be classified as “Job Killers.”  The Chamber did an excellent job opposing these identified bills and were successful on most counts.

At the start of the busy bill-signing cycle in October, 2011, the Governor appeared to have seen the light and was briefly characterized as being diplomatic in his approach to businesses – particularly in this economic climate.  He vetoed several of the laws that he reviewed first.  Most critics and the Chamber were pleased by the early victories.  However, towards the end of the cycle, Governor Brown did stay true to his roots and sign into law a few very terrible and expensive laws for employers that on one end, limits the ability of an employer to select a qualified candidate, and on the other end, increases the costs of doing business in this state.  This Jekyll & Hyde behavior should be a call to all California businesses to stay on guard throughout the legislative process.

The following are a sampling of provisions enacted by Governor Brown:

AB 22 – Mendoza (D-Artesia) – Credit Checks

California has now decided to follow a growing trend in other states by barring employers from obtaining credit reports during the application process for many job positions.  Currently, employers are required to inform the prospective employee that a credit check might be performed, and get written consent.  But now, thanks to AB 22, employers cannot obtain or use the credit reports of its prospective employees for many positions.

The new law prohibits employers from using a consumer credit report for “employment purposes” except for certain types of job classifications.  The positions for which a credit report can be obtained during the hiring process include:

•  a managerial position;
• a position for which credit information is required by law;
• a position that requires regular access to bank or credit card account information, social security numbers, and date of birth;
• a position in which the employee would be a signatory on the employer’s bank account, or authorized to transfer money on behalf of the employer, or authorized to enter into financial contracts on behalf of the employer;
• a position that involves access to confidential or proprietary information, including trade secrets;
• a position that involves regular access to cash totaling ten thousand dollars ($10,000) or more of the employer, a customer, or client, during the workday; or
• certain financial institutions.

When an employer does intend to obtain a credit report during the hiring process, the employer must inform the applicant of the specific reason the employer is obtaining the report, meaning the provision set forth above that applies to the position.  This new requirement is in addition to the other requirements already imposed on employers under the Fair Credit Reporting Act and other similar laws.

SB 299 – Evans (D – Santa Rosa) – Health Insurance Coverage for Pregnancy Disability Leaves

Currently, employers with 50 or more employees are subject to the federal Family & Medical Leave Act as well as California’s Family Rights Act.  Both laws require that a covered employer continue to provide health insurance coverage to employee who must take a leave of absence for a serious health condition.  The right to have continued health insurance coverage extended for a period of three months for certain employees who have 1250 hours and 12 months of service.  Employers who were not covered by FMLA/CFRA, but had employees who needed to take a pregnancy disability leave, were required to provide up to four months of leave – but were not required to continue health insurance coverage because the costs to employers was previously consider too burdensome to impose on the smaller business.  Now, this new law requires that companies with 5 or more employees (no tenure requirement) provide continued health insurance costs for up to four (4) months – longer than what is required by FMLA or CFRA.

The financial burden on smaller employers is blatantly evident.  Employers with just a handful of employees must continue to provide health insurance coverage during a PDL leave, when one was not required before.  My fear is that this will cause some smaller employers to reconsider providing health insurance at all to their employees.  Accordingly, effective January 1, 2012, employers will have to revise their leave policies.

SB 459 – Corbett (D – San Leandro) – Independent Contractor Misclassification

This bill has now created an entire administrative scheme and additional causes of action for companies that engage the services of individual independent contractors.  If the individual is subsequently found to have been improperly classified as an independent contractor and that individual should have been classified as an employee, the contracting entity may be fined anywhere from $5,000 to $25,000 for EACH violation!

This new law is going to be difficult to comply with as differing state agencies utilize differing determinations of who is an independent contractor.  I have not seen clear guidance yet, but it would be my recommendation to comply with all of the tests concerning determining independent contractor status, in particular, the 11-point test utilized by the California Labor Commissioner.  If in doubt, classify any individual contracting worker as employee.  By all means, seek legal advice if you have any individuals who are currently being 1099’d for work.

SB 272 – DeSaulnier (D – Concord) Organ Donor/Bone Marrow Leave of Absence

Last year SB 1304 was enacted with relatively little fanfare.  This law added sections 1508-1513 to the California Labor Code.  SB 1304 created an additional leave of absence for employees of private organizations which entitled that employee up to 30 days of leave to donate an organ, and up to 5 days for someone to donate bone marrow.  This new law brings renewed attention to this new law and clarifies that the 30 days are business days and not calendar days.  This new law also clarifies that the time off cannot be seen as a break in service for pay increases or the accrual of benefits, including vacation and seniority.

AB 469 – Swanson (D – Oakland) California Wage Theft Prevention Act

Among the flurry of bills Governor Jerry Brown signed recently, the Wage Theft Prevention Act of 2011 (“Act”) imposes new requirements on California employers.  One significant provision now requires employers to provide non-exempt employees with a written notice, at the time they are hired, of various compensation information and information on the company.

In particular, Labor Code Section 2810.5 (as of January 1, 2012) will require that at the time of hiring, an employer shall provide each employee a written notice, in the language the employer normally uses to communicate employment-related information to the employee, containing the following information:

1. The rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or otherwise, including any rates for overtime, as applicable.
2. Allowances, if any, claimed as part of the minimum wage, including meal or lodging allowances.
3. The regular payday designated by the employer in accordance with the requirements of this code.
4. The name of the employer, including any “doing business as” names used by the employer.
5. The physical address of the employer’s main office or principal place of business, and a mailing address, if different.
6. The telephone number of the employer.
7. The name, address, and telephone number of the employer’s workers’ compensation insurance carrier.
8. Any other information the Labor Commissioner deems material and necessary.
9. The Labor Commissioner is in the process of preparing a template that complies with the above requirements and estimates that the template shall be made available to employers by mid-December.

If an employer changes any of the eight items, it shall notify the impacted employees in writing of any changes within seven calendar days after the time of the changes, unless all changes are reflected on a timely wage statement furnished in accordance with Section 226; or notice of all changes is provided in another writing required by law within seven days of the changes.

This “New Hire Statement” applies to private, non-exempt employees but does not apply to public employees; exempt employees; or employees who are covered by a valid collective bargaining agreement.

The Act also requires employers to maintain records itemized wage statements and records of deductions for three years.  The Act also dramatically strengthens certain penalties and the enforcement powers of the California Labor Commissioner.  One particular provision now allows the Labor Commissioner to collect penalties and fees for up to three (3) years whereas the prior limit was one (1) year.

AB 1369 – Assembly Committee on Labor & Employment – Written Commission Agreement

The new law requires all employers doing business in California to draft written contracts for any agreements with employees that involve commissions as a method of payment for services. Commission wages are defined as compensation paid to any person for services rendered in the sale of an employer’s property or services and based proportionately upon the amount or value thereof.

The deadline for employers to reduce all commission agreements to writing is January 1, 2013.  In addition to outlining the commission plan in writing, employers must provide a signed copy of the contract to every employee covered by the commission agreement and obtain a signed receipt for the contract from each employee.  There are no penalties associated with a violation of the new statute but presumably it could be a basis for suit under California’s Private Attorneys General Act (PAGA) and Unfair Competition Law.  Accordingly we recommend commencing with the implementation as soon as possible.

Other laws have gone into effect, and we will attempt to provide guidance on more as the impact on businesses become clearer.  In conclusion, the start of Governor Brown’s tenure does not bode well for California businesses.   It is important to stay diligent in any and all advocacy efforts and work with your local, state and federal Chambers of Commerce or industry associations to protect the interests of businesses.

By: Michael S. Lavenant and Brian E. Ewing

On September 27, 2011, Al Landegger is conducting a seminar at the Glendale Hilton.  Discussion highlight and summary:
In today’s business world, employers are faced with many issues that can affect their bottom-line. Disciplining and terminating employees are two of the most stressful and legally risky duties employers must perform.

Unfortunately, employers and their managers/supervisors are not always equipped to handle these types of situations without exposing their company to potential expensive employee lawsuits.
Discussion will include:

• Is “at will” employment alive and well in California?
• What are the most important factors to successfully terminate an employee?
• Use of Last Chance Agreements, Final Warnings and Severance Agreements
• Can I terminate an employee who has a workers’ compensation claim?
• Question and Answer Session

For full information and to reserve a seat.

STAY HOME!  Non-Residents Entitled to California Overtime Protection While Here, California Supreme Court Rules

by Michael S. Lavenant

While California is mired in a $25 billion budget deficit, and companies are leaving for greener, business-friendlier pastures like Arizona, Texas, Georgia and North Carolina, the California Supreme Court is doing its best to pile on the regulatory burdens that hurt this state’s ability to compete on a national and global scale. In Sullivan v. Oracle Corporation, the California Supreme Court held that non-resident employees who perform work in this state, even for periods as short as a single day, are protected by California’s overtime laws.

As a result of this decision, we recommend that out-of-state employers seriously consider allowing only employees who are exempt under the California standards (which are more difficult for employers to meet than the exemption standards under the federal Fair Labor Standards Act) to travel to the state on business.

The three plaintiffs were instructors for California-based Oracle, but they lived and usually worked in the states of Arizona and Colorado. However, they periodically came to California to provide instruction to the company’s customers in use of the company’s products. At one time, Oracle had classified all of its instructors as exempt from overtime but later reclassified them as non-exempt and settled a wage-hour class action. The three plaintiffs had been dismissed from the class action because they were not residents of California.

The three plaintiffs then filed their own suit against Oracle in a federal court in California, seeking overtime under the FLSA for work performed outside California and overtime under the California Labor Code for work performed in California. The company won summary judgment. The U.S. Court of Appeals for the Ninth Circuit reversed in part but then withdrew its decision, and asked the California Supreme Court to rule on the state overtime issue.

Under California law, a non-exempt employee is entitled to overtime, not only for hours worked in excess of 40 in a single workweek, but also for hours worked in excess of 8 in a single day. The FLSA does not provide for daily overtime. California’s unfair business practice law can extend the statute of limitations to four years, compared with the FLSA statute of limitations of only two years for non-willful violations.

In its analysis of the application of daily and weekly overtime laws, the California Supreme Court looked to the plain language of the statute and whether there is a significant conflict of law with other jurisdictions.  The Court initiated its analysis with the foreboding statement – “California’s overtime laws apply by their terms to all employment in the state, without reference to the employee’s place of residence.”  The remaining discussion was dedicated to shooting down Oracle’s common-sense arguments that adoption of the plaintiffs’ position would impose extreme burdens on multi-state employers.

The Court emphasized that its decision applied only to the payment of overtime compensation and that other employment laws would have to be analyzed separately.  Further, the Court emphasized that its decision was affected by the fact that Oracle was based in California. It is unknown what the decision would be if the employer did not have a significant presence in California. The conclusion remains, however, that if a non-resident employee performs work in California for a complete day or more, the daily overtime protections will apply and the employer’s failure to compensate accordingly will create a claim for up to four years.

The Court determined that it had jurisdiction over the issue because California had a duty to regulate any work performed within its borders. The Court also noted that neither Arizona nor Colorado had specified that their employment laws were intended to supplant other states’ laws.  This seems to be an invitation to business-friendly states to revise their wage and hour laws to specify that work performed by their residents out of the state would be subject to the home state’s overtime regulatory scheme.

Finally, the Court left open the possibility that Oracle could be liable under the state’s unfair competition law for failure to pay for overtime as required by California law for work performed in California.

This decision is expected to have exactly the effect that Oracle has argued it will have – causing even more damage to California’s already-struggling economy. Out-of-state employers will be reluctant to send non-exempt employees to California for any kind of business – whether direct business, or conventions, conferences, or training. Business and events such as these often entail compensable activities outside normal working hours, which will make the out-of-state employers vulnerable to California overtime claims.

All companies, whether based in California or not, should review the travel plans of their employees. Until an internal analysis is completed, companies should seriously consider banning employee travel to California unless it is certain that the employee is “exempt” from the California overtime provisions. Again, employers should note that California’s standards for determining overtime exemption are more demanding (less employer-friendly) than the standards that apply under the FLSA.

WHAT ACTIONS, IF ANY, SHOULD BE TAKEN WHEN WE ARE STILL GETTING MEDICAL REPORTS FROM OUT-OF-NETWORK PHYSICIANS?

HOW DO WE DETERMINE WHETHER WE HAVE A DEFENSE?

Please recall the WCAB En Banc decision in Valdez v. Warehouse Demo Services/Zurich [ADJ7048296] where on 4/20/11, the WCAB Commissioners, with two partially dissenting opinions, held that where unauthorized medical treatment is obtained outside of a validly established and properly noticed MPN, the reports from these non-MPN doctors are inadmissible and may not be relied upon. What is the practical, claims handling and practice impact of this decision?

VALDEZ IS NOT CAST IN STONE—NOT YET:

You should know that applicant’s attorneys have filed a petition for reconsideration from this decision. They contend, among other things, that the WCAB decision causes “mischief, exorbitant costs, and an absurd result.”ⁱ It is therefore conceivable, but not likely, that the Commissioners could revisit the issue. On a procedural level, if the WCAB takes no action on the petition, then the petition for reconsideration is denied by operation of law within 60 days from the date of filing, per Lab Code 5909. Given the enormous importance of this issue, we expect the WCAB will act upon the petition, most likely by issuance of a simple denial before the 60 days. Assuming a denial is made, or a granting of the petition and then the issuance of a subsequent decision upholding the initial determinations, then applicant’s attorneys will almost certainly file a writ of review. Therefore, it is highly likely this issue will not be put to its final rest before the end of 2011 if not beyond. For present purposes however, the current decision is “good law” and is therefore binding statewide unless and until the WCAB issues a new and contrary decision or an appellate court either stays or reverses the decision.

SUGGESTED DEFENSE PROTOCOLS

STEP ONE: IS OUR MPN HOUSE IN ORDER?

Before considering an aggressive response to out-of-network treatment reports, be very aware thatValdez made the inadmissibility of these reports specifically conditional upon the MPN being both validity established and properly noticed. This means that in order to sustain a good defense, we need to make sure that there has been compliance with the applicable statutes and governing regulations. We need to be able to “prove” that the MPN is validly established, that the notice poster was up on the date of injury, the applicant was provided with the implementation notice before the date of injury and the full notice of MPN rights post-injury –AND- that we provided medical treatment both in compliance with Labor Code 5402(c) “1 working day” post claim form service and that we arranged for the initial MPN medical appointment within 3 business days following a request for treatment.

So the check list is:

• Is the MPN properly established?
• Was the required posted notice made in a conspicuous location frequented by employees (English and Spanish) noting that the regulations require a new notice poster as of 10/8/10.?ⁱⁱ The absence of this notice probably dooms this defense, since under the statutes and case law, the effect of not putting up the notice is to otherwise permit the applicant to treat out-of-network from day one. The failure to post any form of notice is probably not curable. For injuries on or after 10/1/08, the effect of retaining the “old” notice but not the new poster notice, is less certain, but possibly curable. We don’t know.
• Was pre-date of injury MPN information (“Implementation Notice”) given to the applicant and did it contain the required minimum information?ⁱⁱⁱ
• Was post-date of injury MPN notice provided to the applicant “(Employee Notification”)? This is the “full blown” information required, which incorporates the MPN essentials, including, MPN access standards and mileage, how to select physicians and change physicians within the MPN, the toll free number, an MPN contact person, how to obtain initial and subsequent medical care, the MPN directory access, including regional listings, how to obtain a specialist, the continuity of care policy, the transfer of care policy, the 2nd and 3rd opinion process and the securing of independent medical review, etc.^iv

STEP TWO: TIMELY PROVISION OF CLAIM FORM AND TREATMENT AUTHORIZED: DID WE TIMELY PROVIDE THE DWC-1 TO THE EMPLOYEE?DID WE AUTHORIZE MEDICAL TREATMENT UNDER LABOR CODE 5402, 8 CCR 9767.6 and 8 CCR 9767.5(f)?

This is a potential “trap” since it appears we have two hurdles to overcome. First, we need to be able to establish that medical treatment was provided within one (1) working day after the filing of the claim form upon the employer –AND- that we arranged for the first visit to the MPN doctor within three (3) business days of a request for treatment within the MPN. This means that we have two different time rules to evaluate and even if we provided all of the notices required but the medical treatment was not provided timely, then this will be a major issue if the matter is heard before the WCAB. This aspect of the defense must be scrutinized.

STEP THREE: SENDING LETTER TO THE OUT-OF-NETWORK TREATING PHYSICIAN WITH CURRENT AND CONTINUING OBJECTIONS TO ANY AND ALL CHARGES.

The letter should make it clear that we are enforcing Valdez, that we object to all treatment on a current and ongoing basis, that we will move to strike any and all medical reports and that we will oppose any of this evidence to be used for any purpose in the WCAB proceedings. [SUGGESTION] In the letter, you can also ask them to explain why they have the right to treat out-of-network. If they do not respond, but continue to treat, this fact can be used later on to support a request for costs, sanctions and attorney fees].

STEP FOUR: FILING A NOTICE WITH THE WCAB.

This notice, in pleading form, would be filed and served upon the parties and any and all non-MPN physicians, stating that we oppose any intended use of these medical reports for any evidentiary purposes and that we further oppose the use of these reports as attachments or exhibits to be sent to any AME, primary treating physician, State Panel QME (SPQME) or Agreed State Panel QME (ASPQME). This pleading then becomes part of our defense exhibits for hearing on the issue.

STEP FIVE: PREVENTING THE MEDICAL REPORTS FROM COMING IN THE “SIDE DOOR” [GOING IN EX PARTE IF THE OTHER SIDE TRYS TO SEND THE REPORTS TO A PQME-ASKING FOR A DISCOVERY ORDER]

Making sure that we take the position that this inadmissible evidence should not become part of the Exhibit List for any SPQME, APQME, AME or treating physician evaluation and opposing by objection, the other side’s effort to do so. If the other side provides 20 days notice of their intent to send these inadmissible reports to a PQME, then consider making an ex parte attempt have a WCAB Judge issue a protective discovery order, prior to the examination or at least requesting a special hearing prior to the exam. Otherwise, by nottaking this stance, we might be permitting these medical reports to find their way into evidence through the admissible reports of an AME or PQME. (If these non MPN physician reports are reviewed by an AME or PQME, we should take the position that these opinions were potentially influenced by the inadmissible reports of the out-of-network physicians and that in the case of a PQME, we should RESERVE THE RIGHT TO OBJECT TO THE PQME REPORT AND TO FURTHER REQUEST A NEW PANEL since the QME reports would be deemed compromised if they incorporated or relied upon this inadmissible evidence.

STEP SIX: [OPTIONAL] FILING A LIMITED DECLARATION OF READINESS TO PROCEED ON THE ISSUE OF MPN TREATMENT –REQUESTING A WCAB ORDER THAT TREATMENT IF ANY, WILL BE PROVIDED ONLY WITHIN THE MPN. CONSIDER ALSO REQUESTING SANCTIONS and COSTS.

Rather than permitting lien claims to build and the tainted evidence to mount, consider filing a DOR. Also, consider asking for costs and sanctions under Lab C 5813 and 8 CCR 10561, under the theory that the continued treatment out of network is being undertaken in disregard of the governing statutes and regulations as well as per Valdez. Note, in light of Valdez, it is now unclear whether the WCAB could actually force the applicant to treat, if at all, within the MPN. I know that prior WCAB panel decisions seemed to indicate they would not, but now in light of this case, I believe the WCAB can and should make these orders. We can’t force an applicant to obtain treatment but why can’t we ask the WCAB for a limiting order that if treatment is to be provided, it will be within the MPN.We certainly recommend both an abundance of caution and care before deciding upon a case-by-case basis, whether these strategies should be initiated. It is very highly recommended that every claim and case be reviewed for compliance, before any of these strategies be initiated. Also, there are no published decisions which speak to the issue of technical non-compliance. We have a number of WCAB panel decisions, which while interesting, are certainly not dispositive. However, it seems that the “tone” of some of these decisions is that if pre or post injury notices were not provided, the omissions might be curable, if we can demonstrate that ALL medical treatment was afforded timely and that access to the MPN was made timely and that later notices were sent to the applicant to cure the technical defect. There is no certainty here but a timely provision of benefits seems to be the “critical key” to permitting the curing of the technical defect.

 

Footnotes:

i Workcompcentral, 5/25/11, article by John P. Kamin, Legal Editor Page 1.

ii Lab C 3550, 8 CCR 9880, 9881, 9881.1

iii 8 CCR 9767.12. Information required here is much less extensive then in the post-injury notice, but there is minimum information required, including for new employees.

iv This notification is much more extensive and is set forth under 8 CCR 9767.12(f)

On Saturday May 21, 2011 Al Landegger will be a speaker at the upcoming Southern California Mediation Associations conference “Communication in Employment Mediation: Telling It Like It Is,”  The conference is held at the Portofino Hotel and Yacht Club in Redondo Beach, CA.

Our own Al Landegger will be speaking on the topic “Keeping the ‘Good’ in’Goodbye’: Mediating Workplace Disputes Pre-Litigation.”  To find out more about attending, please click on this link below to download the PDF brochure on the event.

Download the PDF for SCMA Conference Brochure to make reservations to the event here.

March 28, 2010

WCAB PANEL DECISION UPHOLDS THE USE OF SECTION 15.13 OF THE GUIDES [Figure 15-19] TO SUPPORT AN ALMARAZ/GUZMAN II DETERMINATION

(Using Apples to Make Banana Pie and then calling it Red Velvet Cake)

The WCAB has issued a Panel Decision in the case of Laury v. SCIF (ADJ3400378).  While Panel Decisions are neither controlling nor citable as legal authority, they may carry some practical weight, as they are often widely circulated and they can therefore often reflect potential insights into the reasoning and thinking of at least the WCAB three member panels who decided the particular case.  Therefore, we should likely expect this Panel Decision should get some wide attention within the compensation community.

Very simply, Section 15.13, found on page 427 of the Guides, featuring Figure 15-19, is nothing more than an illustration showing how a DRE or ROM based impairment assessment can be converted from whole person impairment to a regional spinal impairment.  According to the Guides, this is the difference between “the involved spine region rather than the whole person.” ⁱ Therefore, this section represents nothing more than a conversion illustration from the DRE and ROM based whole person impairment (WPI) to regional spine impairment.

By illustration, a cervical impairment ratable under the DRE III at 15% WPI would be converted to 43% spinal regional assessment impairment. This is not a transposition of the WPI into a higher number, but represents only the proportion the cervical WPI has to the entire spinal region.  In further illustration, if we take an injury to the lumbar spine, resulting in impairment based on the ROM method at 30%WPI, this would convert to 33% spinal regional assessment impairment.

By simple logic, Section 15.13 should have nothing to do with whole person impairment assessment, except to show how it can be converted to regional spinal assessment impairment. But there is no indication from this two paragraph section in the Guides that it was ever intended as an alternative method for determining impairment. Nonetheless, we are seeing some physicians justifying an Almaraz/Guzman II determination, using Figure 15-19 as a license with which to assess a much greater level of whole person impairment.  This practice is so convoluted and afar from the very principles upon which the Guides are based, that it is like using apples with which to make banana pie and then calling the final product red velvet cake.  Therefore, by permitting the use of this irrelevant Section 15.13 to determine whole person impairment is tantamount to a wholesale rejection of the Guides and the principles upon which the Guides are based.ⁱⁱ

Unfortunately, this WCAB Panel upheld the AME’s use of Figure 15-19 at Page 427, in order to support an Almararz/Guzman II finding.  In this case, the AME took Figure 15-19, which weighted lumbar impairment to the totality of spinal regional impairment at 90% and upon the AME declaring that, “This man in my opinion has lost 60% of the use of his lumbar spine excluding the impact of his sexual function and sleep disorder.  Therefore 60% of the lumbar spine function multiplied by .9 corresponds to a 54% WPI.”ⁱⁱⁱ Clearly, the 90% represented here, was intended to illustrate that a ROM based whole person impairment represented a proportional 90% of the spinal regional impairment and was not otherwise intended as a direct or alternative assessment of WPI.

We find this decision, and the facts upon which it is premised, to be troubling on a number of levels.  For one thing, there is neither discussion nor analysis as to why the AME found Figure 15-19 to represent a more “accurate” assessment of impairment than the ROM determined whole person impairment. For another thing, while the WCAB did reflect that Figure 15-19 “is within the four corners of the Guides,” they provided little rationale for supporting the AME’s use of this section and why it otherwise represented a more accurate level of impairment.”^iv It appears the WCAB ignored the fact that Figure 15-19 was a conversion device and not an alternative method of impairment assessment.  There is also no apparent reflection that the AME had determined this conversion formula reflected a more accurate picture or composition of the impairment assessment.  The standard of “Accuracy” is now the essential foundation for justifying an Almaraz/Guzman II determination, under the En Banc decision in Almaraz/Guzman II.  Also, it is clear that Figure 15-19 was meant to be nothing more than a conversion tool, in order to demonstrate the proportionality of a whole person impairment expressed as regional spine impairment. This very conversion is based upon a whole person impairment, either by the DRE or ROM method converted to a regional impairment (within the spine—not whole person) and was not intended to provide a direct method for converting WPI to a higher level.

This Panel decision seemingly misconstrues the meaning of Section 15.13 by permitting the AME to ignore the conversion from DRE or ROM based WPI to regional spine impairment, but rather going directly to a new WPI assessment, based upon the use of an element of the conversion number.  This number is abstracted from a single sentence under Figure 15-19: “The whole spine divided into regions indicating the maximum whole person impairment represented by a total impairment of one region of the spine. Lumbar 90%, thoracic 40%, cervical 80%.”^v In other words, instead of a simple mathematical conversion from DRE or ROM based WPI to regional spine impairment, this decision permits the physician to simply use the conversion as a direct transformation of a DRE or ROM based WPI to a regional WPI, and then substituting WPI for regional impairment.  The illustration presented by the Guides at Page 427 demonstrates that a neck injury resulting in a 20% DRE based WPI would convert to a 57% regional spinal impairment of the cervical spine,^vi not a 57% WPI. This is the use of apples to make banana pie and then calling it red velvet cake.

In its decision, the WCAB has upheld the AME, who concluded the applicant had lost 60% use of his lumbar spine and then applying that number against the 90% proportion the ROM based lumbar WPI is to the spinal region, to calculate a new WPI of 54%.  The flaws here include:

 

1. Section 15.13 is nothing but an illustration showing spinal WPI, based upon the DRE or ROM method, as a relative percentage of the entire spinal region; it starts with the premise that the conversion involves a DRE or ROM based rating.  So, the physician would use the weights here in order to convert WPI to a percentage of the spinal region.  But the converted number is not a WPI number, but a regional impairment number! To permit the regional impairment assessment to reflect a new WPI is to ignore the intended purpose of Figure 15-19.
2. The use of .90 as a multiplier, described as “the maximal WPI due to the lumbar spine is 90%” also seems to misconstrue the plain meaning of section.^vii The .90 is not the WPI but rather merely the “percentage” of lumbar WPI expressed as a percentage of the spinal region impairment.
3. This Panel seems to have ignored the current standard of proof required to factually sustain an Almaraz/Guzman II finding; i.e. more accurately reflective of the actual impairment.  This is ironic, since the conversion formula found on Page 427 appears to have been both misconstrued as well as misapplied, so how can a trier-of-fact correctly determine that the impairment assessment made by this AME is now “more accurate?” Here, the Panel seemingly permitted an A/G II finding without holding to the requisite foundation of “accuracy” as the basis.  Instead, they seemingly permit the now supplanted standard of “proportionality.”

On a going forward basis, we should probably anticipate that some applicant attorneys and treating physicians will regard this Panel Decision as a sanction permitting the use of Section 15.13 as a new or alternative impairment generating device.  We believe that using Section 15.13 as an impairment creating tool represents an improper and unsupportable use of the Guides and should be opposed.

You should be ready to defend against any physician who attempts to establish higher levels of impairment, using this section.

°Copyright 2011 Landegger, Baron, Lavenant & Ingber

i  American Medical Association Guides to the Evaluation of Permanent Impairment Pp. 427

ii “Impairment percentages estimate the extent of the impairment on whole person functioning and account for basic activities of daily living, not including work.’ Guides at Pp 13.

iii See decision at page 4, lines 14-16)

iv See decision at page 8, line 16

v Ibid

vi Ibid

vii See decision at Page 4, lines 14/15

 

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Subject to Proof—Interpreting Services are Now Deemed an Essential Adjunctive to the Provision of MedicalTreatment under Lab C 4600 and are therefore Potentially Recoverable as an Element of Treatment

The WCAB has issued an En Banc decision in the case of Jose Guitron v. State Compensation Insurance Fund.i Please note that en banc decisions are binding upon all WCAB offices statewide, until an appellate court either issues a stay or overturns the En Banc decision.

REASONABLY REQUIRED INTERPRETING SERVICES PERMITTED DURING MEDICAL TREATMENT

• Acknowledging the absence of a statutory basis for permitting interpreting services as an element of providing medical treatment, the WCAB has drawn comparison to “transportation costs” which while also not part of the statutory scheme, have nonetheless been deemed adjunctive to treatment.ii
• Therefore, drawing an analogy to the justification supporting transportation expenses as a reasonable element of medical treatment, the WCAB has now held that interpreting services are an essential adjunctive to the provision of medical treatment, under Labor Code 4600.
• Interpreting services are therefore now regarded an element of medical treatment, provided they are reasonably required for injured workers who are unable to speak, understand or communicate in English.
• Entitlement to interpreting services is not conditional upon the type of treatment being rendered.
• But the applicant must establish that he or she requires these services. The fact that the applicant simply does not speak English is not enough for this proof.iii

ENTITLEMENT TO INTERPRETING SERVICES DURING TREATMENT IS CONDITIONAL UPON PROOF THAT THE SERVICES WERE NOT ONLY REASONABLY REQUIRED BUT ALSO: [1] THEY WERE ACTUALLY PROVIDED; [2] THE INTERPRETER WAS “QUALIFIED” TO PROVIDE THE SERVICEDS; AND [3] THE FEES CHARGES WERE REASONABLE.

• Lien claimant has the burden of proving that the interpreting services in question were reasonably required. No specific method or degree of proof or admissible evidence is prescribed. This can be done in a number of ways.
• Whether or not the doctor’s staff has an available staff member to translate might be probative but not dispositive on the issue. A failure by the treating physician to request an interpreter shall not be deemed a basis to conclude that an interpreter is not reasonably required
• Lien claimant must also prove that the interpreter was actually present on the date of the treatment visit and that services were actually rendered at that time. (It was deemed “helpful” and “appropriate,” but not required, for the treating physician to reflect the presence of an interpreter, within the body of the report).
• The preferred practice is to obtain pre-authorization.
• The interpreter must be “qualified.” This means the interpreter shall either be certified pursuant to the Government Code or “provisionally qualified,” which means the parties essentially “agree” that a non-certified interpreter may render services, when a certified interpreter is not otherwise available for the medical evaluation. Also, a physician,3may use “another interpreter” if that fact is noted in the medical evaluation.iv
• The fee charges must be reasonable. 8 CCR 9795.3 provides a “fee schedule” charge for interpreting services during a medical examination but these charges are not actually applicable for interpreting services during treatment. Therefore, the fee schedule does not necessarily apply to treatment. [For examinations, the scheduled fee is the greater of either $11.25 per quarter hour with a 2 hour minimum or $90.00, or market rate].
• The 2 hour minimum ($90.00) may not apply where the treatment session takes but 10 to 15 minutes.v
• Travel time at $20.00 per hour may be added, providing the distance between the office of the interpreter and the doctor’s office is over 25 miles (not reasonable if other qualified interpreters are available on the master listing for the county where the service was to be provided).vi

COMMENT FROM COREY INGBER

This decision should come as little surprise, since we have been receiving panel decisions, essentially upholding the same reasoning, for some time. The problem of course is that this new case will encourage interpreting services to provide treatment and it will also bolster the arguments of existing lien claimants, that this decision should be applied retroactively, since the issue is one of remedy and not substantive law. In other words, you should well expect interpreting lien claimants to be more aggressive. At the same time however, this case also requires the interpreting lien claimant to provide the required proof necessary to show that the charges are recoverable. This may not be easy or simple, especially when the case-in-chief resolved long ago.

Copyright 2011 Landegger, Baron, Lavenant & Ingber

ⁱ ADJ163338/ WCAB en banc decision filed 3/17/01

ⁱⁱ “Like transportation, effective communication between an injured employee and a medical provider is an essential adjunct to treatment.” Pp 16.

ⁱⁱⁱ “the employer is required to provide reasonably required interpreter services during medical treatment appointments for an injured worker who is unable to speak, understand or communicate in English.” Pp 13

^iv PP 22

^v Pp 24

^vi 8 CCR 9795.3(b)(3)

 

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This is inform that there are new DWC Regulations which have revised the written information employers are required to provide its employees with respect to their Medical Provider Networks (MPNs) and access to same in case of a work-related injury.

These new regulations would therefore apply only to dates of injury occurring on or after 10/8/10.

These new rules are contained within Title 8 (Industrial Relations) of the California Code of Regulations, CCR sections 9767.12, 9880, and 9881, and take effect October 8, 2010.

As a result of these changes, the current version of any “MPN employee notification” pamphlet and posting notices will only remain in effect until that date, and any such materials should be disposed and replaced with updated posting notices.

New Notices and Posting should be given to your covered employees and failure to do so may be deemed a waiver of these new MPN notification requirements (which are set forth in CCR 9767.12(f)) and could result in the loss of network control. The new poster should be placed in a conspicuous location frequented by employees during the hours of the workday and in close proximity to the workers compensation posting that has always been required (per Labor Code 3550 and CCR 9881).

Furthermore, the regulation regarding the notice of MPN to new employees (CCR 9880) now requires the following additional information:  a.) the right of the employee to pre-designate a personal physician or medical group; b.) a description about Medical Provider Networks which is to include that the employer may be using an MPN, what an MPN is, the pre-designation exemption from the MPN, when an employee must begin to use a physician from the MPN, and how to request information about using an MPN.

Also, the Notice to new employees should remove any reference to the rights of the employee to vocational rehabilitation services.

THE REAL CONCERN HERE IS THAT APPLICANT ATTORNEYS MAY BE FOCUSING ON ALL INJURIES OCCURRING ON OR AFTER OCTOBER 8, 2010 AND DEMANDING PROOF OF THE NEW POSTING AND IF NOT FURNISHED OR IF THE NEW POSTING IS NOT UP, THEN THEY WILL TRY AND ASSERT DAY ONE NON-MPN MEDICAL CONTROL.

We should expect a number of attorneys to take the position that there is no MPN control over an injury occurring on or after 10/8/10 unless the new posting was in place and for new hires after that date, the same argument would apply to the new employee pamphlet and contents.

You may view the requirements of the new regulations through the following link:  http://www.dir.ca.gov/dwc/DWCPropRegs/MPN_Regulations/DWC_MPN_FinalRegs.pdf

Download a printable PDF Version of this bulletin here