One need only look at the increase in Cumulative Trauma claims that are being filed after an employee has been laid off. While there has been no specific injury that they can point to, many are now claiming that "work" has worn them out and that they are therefore entitled to even more money than that which was bargained for as a part of their employment agreement.

I would not argue that there are no real and viable events that can lead to a compensable situation. Asbestosis would be the best example of an occupational disease that was unknown to either management or their employees for many years. Litigation over asbestosis has been ongoing since then, and I believe that the compensation awarded to injured workers in such cases is justified.

However, when an employee who is hired to do a job that produces no discernible injuries and who has been laid off for legitimate, non-discriminatory reasons is able to work around the system by claiming a cumulative injury, it is time to reassess the value of that part of the Labor Code. We must decide if both parties to this equation are being properly served. Or, is this an abuse of the system that has been allowed to fester too long?

As a starting point for this discussion, when someone is hired for a job whether it is for either brain or brawn, the employer is taking on the whole person as he/she finds them. When the employee arrives at the jobsite, he/she does not simply place their body in the corner to rest while some mysterious spirit does their job. Employers hire the entire package as he/she finds them and is responsible for same. I would then point out that whether or not we like it, all of us are "wearing-out" as the years pass. The question then is, "Why should an employer be responsible for the normal aging process vs. being responsible for a specific injury?" I argue that they should not.

I therefore offer three possible options for consideration. Any or all of these will allow legitimate cumulative injuries to be raised as part of the work bargain while at the same time making employees responsible for their own "wearing out."

• Take "cumulative" claims out of L/C [Section 3208.1(b)] so that it reads: "An injury may be either specific or cumulative occurring as the result of one or a series of incidents or exposure which causes disability or the need for medical treatment" and then remove cumulative trauma from L/C 5412 and place it under 5411.

  This will allow employees to file a cumulative trauma claim just as they would a specific injury. This would also place the burden of proof on the employee to show, just as they must now with a specific injury. In other words, what extraordinary events of employment occurred thereby showing how this cumulative trauma is more than just part of the normal "wearing out/aging" process we all face every day.

• Change the definition of a Cumulative Trauma injury to more closely mirror that of psych/stress claims (L/C 3208.3). In other words, let the employee show how the preponderance of actual work, absent the normal aging process, had caused a "disability" which should be covered.
• Since the employer is hiring the entire package, we should set up a "depletion" allowance funded by the employee. There should be a percentage taken from each dollar earned which is placed in a fund similar to a 401K. It will belong to the employee and will be portable so that it follows him/her throughout their working career. At the time they become eligible for Social Security, they would have access to this additional fund of dollars. This would result in taking the burden of the normal aging process off the backs of employers.

Regardless of which of these or any others the legislature feels would be the best solution to this growing problem, the real point is that this is currently just another further drain on employers and therefore the California economy and needs to be addressed.

We are now seeing the injured employee's attorney trying to gain medical control by claiming that pursuant to the Labor Code, you did not offer immediate medical treatment or, if it was provided it was not in a timely manner. As such, they are claiming that you (really your carrier) have waived your right to medical control under your Medical Provider Network. As such, applicant's attorneys are now trying to move their client to their medical provider(s) to see just how many new body parts they can add to the claim. So, when you are the first to receive notice of a claim, here is what we recommend you do.

Immediately schedule an appointment for the injured employee with your clinic and provide the employee with a written notice telling them when and where to go. That way, we will have foiled any attempt by the applicant attorney to grab medical control because of our alleged failure to provide treatment.

To help you facilitate the process, I have added language regarding this medical appointment to the "Acknowledgment of a Claim" letter I recommend you use (see below). The goal is to ensure that your injured employee understands that they must go to our doctors for treatment, as well as at the same time telling them that they are free to obtain medical treatment outside of your Medical Provider Network but that it will be at their own expense.

We have already seen this approach work keeping the injured employee treating within our Medical Provider Network. Injured employees are showing your letter to them to their attorney and are asking if they really have to go to our doctor(s). They are also asking if their attorney is going to pay for any treatment by the attorney's directed non-Medical Provider Network doctor. The answer is almost always "No," and we find ourselves retaining medical control with a minimum of effort on our part, which we all know is critical to the timely closure of any claim.

You will note below the revised language I recommend you use. You will also note that it should be on company letterhead and given as soon as you first learn of the claim. A copy should also be sent to the examiner for this claim. This way, no time will be lost and there will be no argument over whether or not you have waived any of your rights to retain and maintain medical control.

I have put the medical appointment language in italics so that you understand that it should only be used when you are the first served with notice of a claim. Otherwise, simply leave this out and only use the language about their ability to obtain their own doctor at their own expense.

(On Company Letterhead)

Name
Address

Re: Recent work related injury - (Date of Injury)

Dear (Employee's first name if possible or Mr/Mrs ...)

We were sorry to learn of your recent on the job injury. We want to take this opportunity to assure you that our workers' compensation insurance company has been notified. They will be in touch with you to discuss your injury and to make sure that you receive all the benefits necessary to help you with a speedy recovery.

We want to be sure that you know your rights under California law (Labor Code 4605) which says:

"You have the right to provide, at your own expense, a consulting physician or attending physician(s)."

We also understand that you probably feel the need to be seen by a doctor as soon as possible. We want you to know that medical treatment is immediately available at (insert your clinic's name here). They are located at (address and phone number).

An appointment has been made for you at (call the clinic and get a specific time for the injured worker to be seen). If this time is not convenient for you, call the clinic and reschedule at your convenience. You will be receiving further information directly from our workers' compensation carrier regarding your claim.

Please do not hesitate to contact (fill in the name of the person) if you have any questions about your injury or benefits.

Again, we wish you a speedy recovery.

Signed.

Cc - Your insurance carrier

Let's Start With A Good...
In 1917, the first Industrial Accident and Safety Act went into effect. There were lots of pieces, but one that has endured the test of time is the one that allows an injured employee to choose to be treated by his own consulting or attending physician, at the employee's own expense. The current version of that section is now Labor Code Section 4605 (until 1/1/2013). In my mind, it has been used, or should I say abused, over the past years with an ongoing controversy over this section and what it really means.

There are two major issues surrounding this section of the code. The first has been the question of who is really responsible to pay the bill. The second is whether or not the non-Medical Provider Network doctors' reports are admissible in court. Well, thanks to an energetic applicants' attorney (A/A) named Mendoza, both of these issues became ripe for the courts with the recent 2012 Valdez case.

First, I must note that there was a viable Medical Provider Network in place at the time of the injury. The employee initially went to the carrier's Medical Provider Network doctor, but he also self-procured his own, non-Medical Provider Network doctor.

The carrier objected on the basis that the Medical Provider Network controlled all medical treatment. However, the trial judge admitted and relied totally on the report of the self-procured, non-Medical Provider Network doctor in making his decision as to compensability and the amount that would be due the injured employee. This matter was then taken up by the Workers' Compensation Appeals Board who reversed the trial judge not once but twice.

However, Mr. Valdez' attorney was not letting go so easily. So the matter was then taken up by the Court of Appeals who agreed with the Workers' Compensation Appeals Board. Mr. Mendoza was still not satisfied and took the matter to the California Supreme Court for consideration. The matter has been accepted by the Supreme Court and we await their decision which I predict will be in our favor.

However, while all of this was going on in the courts, the legislature was in the process of passing SB 863, which has some interesting changes ... one of which is directly related to this issue. To put it in perspective, you must understand the current language of 4605 which reads as follows:

L/C 4605 — Consulting or attending physicians provided at employee's expense. Nothing contained in this chapter shall limit the right of the employee to provide, at his own expense to a consulting or attending physicians whom he desires.

As noted above, one of the problems has been who has been paying the non-Medical Provider Network doctors' fees. Up to this point in time, the applicant's attorneys have been burying these costs when they send the injured employees to their doctors. The doctors are instructed to treat and to then file a lien for their fees which are normally dealt with at the time the claim itself is decided. I am sorry to say, that in the end, the carriers have rolled over and have been picking up these costs without a fight. This, even when there is a valid Medical Provider Network in place and all such services by the non-Medical Provider Network doctor should be objected to and paid for by either the injured employee or better yet, his attorney.

Non-Medical Provider Network Doctors' Reports
The next issue is the admissibility of the non-Medical Provider Network doctor's report. The argument has been that since the employee is paying for it, it should be allowed to have weight in the final determination of the claim. Needless to say, we have vigorously objected and in many cases have won. However, the issue was still there until the legislature made a significant change to L/C 4605 which clarified whether these reports could or should be admitted. L/C 4605 has been changed to read as follows effective 1/1/2013:

Nothing contained in this chapter shall limit the right of the employee to provide, at his or her own expense, a consulting physician or any attending physicians who he or she desires. Any report prepared by consulting or attending physicians pursuant to this section shall not be the sole basis for an award of compensation. A qualified medical evaluator (QME) or authorized treating physician (read MPN Primary Treating Physician — PTP) shall address any report procured pursuant to this section and shall indicate whether he or she agrees or disagrees with the findings or opinions stated in the report and shall identify the bases for this opinion.

So you can see that the legislature has spoken and the issue of the admissibility of the reports has been addressed and settled. That is why I feel we will win at the Supreme Court as the legislature has already made the necessary changes to make clear their intent with the law.

So You Ask, "How Does All This Affect Me?"
Effective January 1, 2013, when you have a strong Medical Provider Network in place, the "consulting or attending physician's" reports will be admissible but will be sent only to the Medical Provider Network's Primary Treating Physician. That doctor will either accept what the non-Medical Provider Network doctor has stated or reject it. If our doctor rejects it, he/she must justify why they disagree with what the report says. And of greater import is that if they reject it, there is now a dispute over the diagnosis and treatment of the injury and the matter will be sent out for a second opinion by our Medical Provider Network doctor and not the non-Medical Provider Network one chosen by the injured employee.

This approach will save both time and a great deal of money by shortening how long it takes to get an acceptable medical opinion. This will allow the claim to be moved forward and closed in a timely manner and at a much reduced cost.

What Your Injured Employee Needs To Know When Reporting An Injury
The most important thing to remember here is that when an injury occurs to one of your employees, you need to make sure that they know and understand their right to secure outside treatment but at their own expense. This has already had the affect of limiting applicant attorneys from sending their clients out to doctors who list every possible body part available and then treat and treat and treat and treat.

The question is "What do you do if you are fined by OSHA for a serious penalty?" Among the various defenses available, there is the Independent Employee Act Defense (IEAD). It is all based on the 1980 Mercury Service, Inc., case which by the way is still cited in Cal/OSHA legal circles.

In this defense, the employer must plead that the act of the employee that caused the injury was an independent act of the employee, and the employer should not be held liable. The argument by the employer is that "I did everything the law required me to do, but the employee violated company policies and procedures and that is what caused the injury."

Now this seems simple but it is not. In order to prevail with the affirmative defense, it must first be pled on the appeal following the citation and for the employer to prevail, he/she must prove all five of the following elements:

1. The employee was experienced and trained on the job. Using the case noted as our base, the employee was a diagnostic specialist on automobiles. The employer presented over 70 training certificates from the manufacturer out of which over 30 were on engine diagnostic and performance checks. Also, training certification from a nationally recognized body was provided by the employer. OSHA accepted the employer's claim on this issue. However, OSHA reviewed all of the safety training that had been completed by the tech.
2. The employer has a well-defined safety program in place. This one is so obvious. You must prove that you have a well-defined and active safety program in place. Here, the employer provided its Injury & Illness Prevention Program Manual along with copies of the various training sessions that had been given. These were taken directly from the manufacturer's service manual that were relevant to the tasks being performed at the time of the injury. OSHA again accepted this part of the defense as well.
3. You must have a policy of sanctions against employees who violate your safety program. Employers must have a policy of sanctions which is enforced equally against any employee who violates your safety rules or is involved in unsafe acts. Here the employer reported that he did not have such a policy as injuries were virtually non-existent and therefore not needed. The employer lost on this one at OSHA as no policy was in place and as any earlier violations that may have occurred had not been documented.
4. You must also have an effective enforcement program in place. The written policy noted above must be enforced equally and be well documented. Here, OSHA held that the enforcement part of the employer's overall safety program had "no teeth" and that the program which was well written was never followed nor enforced. Here, as you can see, the employer lost.
5. The employee caused the safety infraction which he/she knew was contrary to the employer's safety requirements. Here, the employer must prove that the employee had the requisite knowledge of the safety requirement which he knowingly violated, whether on purpose or by his/her own negligence. The employer provided a copy of the safety rules in place at the time of the injury which had been signed and acknowledged by the injured employee. They also provided a copy of the shop manual (specific directions on the servicing of vehicles) which all technicians refer to repeatedly. This document also outlined the safety procedures for each task as well as the relevant safety issues.

So what does this say to you? It says that if you have an effective Injury & Illness Prevention Program and training program in place which is well documented and enforced you may be able to effectively defend against an OSHA serious violation. However, the important thing to remember is that proper documentation wins the day. Without it, don't even try to defend as you will most likely lose. The watch word by most agencies is that lack of documentation means that there was no documentation and you lose.

In its simplest terms, it says in part that an injured employee may be treated by his/her own non-Medical Provider Network physician pursuant to Labor Code (L/C) 4605 for diagnosis, treatment and attendant reports. The case goes on to acknowledge that the employee is responsible for the payment of these services and that any reports generated by the non-Medical Provider Network doctor are admissible. However, the case was remanded to the trial court to deal with the admissibility as well as other issues left unsettled by the Workers' Compensation Judge at the time of trial.

However, as you will see below, I am pleased to report that the defense strategy we developed allowing employers to use the current Medical Provider Network system to its fullest advantage was adopted by the Legislature in the recently passed SB 863. This was due to the amendment to Labor Code 4605 as discussed below.

Background
The current Labor Code 4605 was first enacted in 1917 as a part of the then Insurance and Safety Act. Sec. 9(a) of that act is most interesting from a historical perspective in that it reads:

Such medical, surgical and hospital treatment, including nursing, medicines, medical and surgical supplies, crutches and apparatus, including artificial members, as may reasonably be required to cure and relieve from the effects of the injury, the same to be provided by the employer, and in case of his neglect or refusal seasonably to do so, the employer to be liable for the reasonable expense incurred by or on behalf of the employee in providing the same: provided, that if the employee so requests, the employer shall tender him one change of physicians and shall nominate at least three additional practicing physicians competent to treat the particular case, or as many as may be available if three cannot reasonably be named, from whom the employee may choose: the employee shall also be entitled, in any serious case, upon request, to the services of a consulting physician to be provided by the employer: all of said treatment to be at the expense of the employer. If the employee so requests, the employer must procure certification by the commission or the commissioner of the competency for the particular case of the consulting or additional physicians; provided, further, that the foregoing provisions regarding a change of physicians shall not apply to those cases where the employer maintains, for his own employees, a hospital and hospital staff, the adequacy and competency of which have been approved by the commission. Nothing contained in this section shall be construed to limit the right of the employee to provide, in any case, at his own expense, a consulting physician or any attending physicians whom he may desire (my emphasis). The same general language as to responsibilities is now found in L/C 4600(a); 4601 and 4605.

The reason this section is important is that Section 9(a) pre-dates Labor Code 4616, the Medical Provider Network statute. As such, any attempt prior to SB 863 to harmonize the rights of the employee to seek their own doctor at their own expense against the later-enacted Medical Provider Network statute would have to give precedent to the later-enacted labor code section (L/C 4616).

Labor Code 4605 Amended By SB 863
However, all of that was changed with SB 863 which amends Labor Code 4605 in such a way that makes clear the admissibility and subsequent value of any non-Medical Provider Network generated reports:

"Section 4605 of the Labor Code is amended to read:

4605. Nothing contained in this chapter shall limit the right of the employee to provide, at his or her own expense, a consulting physician or attending physicians whom he or she desires. Any report prepared by consulting or attending physicians pursuant to this section shall not be the sole basis of an award of compensation. A qualified medical evaluator (QME) or authorized treating physician shall address any report procured pursuant to this section and shall indicate whether he or she agrees or disagrees with the findings or opinions stated in the report, and shall identify the bases for this opinion."

Strategy For The Use Of Labor Code 4605 And Medical Provider Networks Going Forward
Employers and their claims administrators (carrier or Third Party Administrator) must aggressively assert and maintain their medical control over any new claim reported under their Medical Provider Network to make this strategy work.

First, employers need to be sure that the required Medical Provider Network notice to each employee and the Labor Code required general postings are complete and well documented.

It is important to note that SB 863 also made significant changes to 4616, the Medical Provider Network statute. However, even with these changes, an employer's best defense will continue to be quality documentation regarding policies and procedures on their handling of the Medical Provider Network notification and enforcement process which will block applicant attorneys' (A/A) attempt to seize medical control for failure to comply with the statute.

Consulting And Attending Physicians
The important question raised by Valdez dealing with the use of Labor Code 4605 by applicant attorneys as a means to get their non-Medical Provider Network doctors reports admitted has been resolved. Labor Code 4605, as amended, has clarified clearly and concisely to who and how the non-Medical Provider Network doctor(s) reports are to be submitted and used.

As noted above, "A qualified medical evaluator or authorized treating physician shall address any report procured pursuant to this section and shall indicate whether he or she (my emphasis) agrees or disagrees with the findings or opinions..." You will note that only a qualified medical evaluator in a non-Medical Provider Network claims environment or the "authorized treating physician" which in the case of a Medical Provider Network is the Primary Treating Physician (PTP) have control over the use of such pro-offered reports.

Recommended Procedure Under Labor Code 4605 As Amended

1. As a first step, I recommend that the injured employee be informed, as part of the employer's or claims professional's acknowledgment of the claim, that a valid Medical Provider Network is in place and that the employee's cooperation is expected.
2. The same initial notice should also state "that the employee is free under Labor Code 4605 to seek their own consulting or attending physician, at their own expense." They will be told at that time that if they do avail themselves of this option under Labor Code 4605, their consulting or attending physician's medical reports will be tendered to the Primary Treating Physician (PTP) for this injury who, under the Medical Provider Network statute, is the controlling doctor (Labor Code 4061.5). Under this scenario, the consulting or attending physician's report will be submitted to either the qualified medical evaluator or Primary Treating Physician to be used as he/she deems appropriate.
3. At the same time, the normal Medical Provider Network process will be enforced as is current policy. Demand will be made that the employee continues to be seen for diagnosis and treatment by a Medical Provider Network doctor. If there is a dispute as to diagnosis or treatment by either the applicant's attorney or the L/C 4605-obtained consulting report, that dispute will be handled under the Medical Provider Network's 2nd, 3rd and if necessary, the Independent Medical Review process and NOT through a Panel Qualified Medical Evaluator.
4. We will also be requesting from the employee an acknowledgement, under penalty of perjury that the employee has already paid or understands that he/she is the ultimate responsible party for paying their L/C 4605-obtained physicians as well as any other related bills for treatment, testing and other costs.
5. We will object to any liens from the consulting physician and will recommend they bill the injured employee directly.
6. Should the employee continue to refuse to be seen by our Medical Provider Network doctors and treat with the non-Medical Provider Network physician, then a Notice of Suspension of Benefits will be sent to the injured employee, his attorney (if there is one), and the non-treating physician. The notice will inform all of the above that all benefits including both Temporary Total Disability and medical treatment are suspended under Labor Code 4053 for failure to comply with a written demand. It will go on to say that the suspension can be lifted by the injured employee simply showing up at our Medical Provider Network doctor for diagnosis and if necessary, treatment.
7. Under this scenario, employers and their carriers or Third Party Administrators will be able to use the full weight of the Medical Provider Network process while, at the same time, dealing with non-Medical Provider Network procured medical diagnosis and treatment. This will help keep the employee within the Medical Provider Network and, if handled in a swift and judicious manner, help hasten a timely closure of the claim.

Employers currently have a minimum of 30 days within which to control the medical treatment of an injured employee. This remains true unless the employee has correctly "Pre-designated" his or her Primary Treating Physician before the injury. If you are smart enough to have a Health Care Organization (HCO) in place, you have a minimum of 90 and possibly 180 days of absolute medical control over the claim. Or, if you have put a Medical Provider Network (MPN) in place, you have cradle-to-grave control over the medical treatment of your injured employee if it is handled correctly by both you and your insurance carrier.

Your ability to retain control is a given unless you do not follow the rules regarding the treatment of an injured employee. It is in the initial stages of the claim that you are most vulnerable and subject to having your control taken away by an attorney/doctor team from the dark side if you do not strictly follow the letter of the law. However, do not despair as we have once again been forewarned of their latest tactic and are ready to meet them head-on.

You Have To Open The Mail Every Day
The current law (L/C 5401) says "Within one working day of receiving notice or knowledge of injury under Section 5400 or 5402, in which an injury results in lost time beyond the employee's work shift at the time of injury or which results in medical treatment beyond first aid, the employer shall provide, personally or by first class mail, a claim form and notice of potential eligibility for benefits."

This is the first place that the applicant's attorney is going to try to get you. If you have not provided the Workers' Compensation Claim Form (DWC-1) to the injured employee, they will claim that you failed to follow the law and will attempt to seize control regardless of the medical control program you have in place. It is therefore important that this requirement be strictly adhered to by the person within your organization who you have designated as being responsible for watching your workers' comp claims.

Next, current law (L/C 5402) says "Within one working day after an employee files a claim form (DWC-1) under Section 5401, the employer shall authorize the provision of all treatment,... for the alleged injury and shall continue to provide the treatment until the date the liability for the claim is accepted or rejected..."

In a previous article, I recommended that each of you change your policy regarding how you deal with the DWC-1 when there is an injury. I stated that it is "best practice" for you to have the injured employee complete the top part of the DWC-1 in their own handwriting at the time of the injury. This gives you a record of what allegedly happened (in the employee's own words) and signed by them. If you receive an amended DWC-1 later from an attorney, we then have a basis to object to the added body parts.

You should then fill in the bottom half of the DWC-1 and give them a completed copy. Under this scenario, you have complied with the labor code and can then either accept the claim or delay it while you investigate the incident to see if it really is work related. The need for this approach has become clearer with the current filing of claims we are seeing.

In a recent claim, the employer's failure to timely provide treatment caused him to lose control of a claim that was covered by his Medical Provider Network. The first the company heard from the employee was through a fax sent by an attorney. The rule on receiving notice by ax is the same as if it comes by mail, i.e. you add 4 days to the notice.

So, if you were to receive a fax on Thursday, you add 4 days and the following Monday becomes your official notice date. Several lawyers have tried to use the date of the fax as their official notice trying to gain medical control because the employer did not act timely in getting the injured employee in for treatment. The law is clear that in order for the date of a fax to be effective as notice, both parties must agree in writing for the fax notice to be effective. So watch these carefully and call if there is ever a question.

Another employer also received a letter from the injured employee's attorney which contained a DWC-1 for his alleged specific injury along with another DWC-1 for a cumulative trauma (CT) claim. The forms were mailed to the employer and not the claims examiner. The letter sat on a desk for several days and was not dealt with in a timely manner. The person designated to handle the company's workers' comp program had not been properly trained in the new rules so that the attorney's letter sat for 4 days on her desk before she decided that it might be important enough to open and should be forwarded to their carrier.

Because of the delay in dealing with the alleged injury, medical control over the claim was lost. The employer had failed to authorize treatment (L/C 5401) within 24 hours as required by the statute as well as failing to have the employee seen by a doctor within 3 days as required by the Medical Provider Network statute (L/C 4616). So what is the message here?

If you have not already done so, review your internal policy regarding how you handle claims, especially the provision of dealing with the DWC-1 form when there is an injury. I again strongly recommend that you have the employee fill out the top part of the form first and you do the same for the bottom section giving a completed copy of the form back to the employee and documenting that you did so.

Next, you must open your mail and deal with it every day. This is the only way that you will protect yourself from attacks from the Dark Side.

While the applicant's attorney will ask the court to publish it, the probability seems very low in that the case was remanded to the trial court to deal with the admissibility issue as well as other issues left unsettled by the Workers Compensation Judge at the time of trial.

Background
Labor Code (L/C) 4605 was first enacted in 1917 under the Insurance and Safety Act. Sec. 9(a) is most interesting in that it reads:

"Such medical, surgical and hospital treatment, including nursing, medicines, medical and surgical supplies, crutches and apparatus, including artificial members, as may reasonably be required to cure and relieve from the effects of the injury, the same to be provided by the employer, and in case of his neglect or refusal seasonably to do so, the employer to be liable for the reasonable expense incurred by or on behalf of the employee in providing the same: provided, that if the employee so requests, the employer shall tender him one change of physicians and shall nominate at least three additional practicing physicians competent to treat the particular case, or as many as may be available if three cannot reasonably be named, from whom the employee may choose: the employee shall also be entitled, in any serious case, upon request, to the services of a consulting physician to be provided by the employer: all of said treatment to be at the expense of the employer. If the employee so requests, the employer must procure certification by the commission or the commissioner of the competency for the particular case of the consulting or additional physicians; provided, further, that the foregoing provisions regarding a change of physicians shall not apply to those cases where the employer maintains, for his own employees, a hospital and hospital staff, the adequacy and competency of which have been approved by the commission. Nothing contained in this section shall be construed to limit the right of the employee to provide, in any case, at his own expense, a consulting physician or any attending physicians whom he may desire (my emphasis). The same general language as to responsibilities will now be found in L/C 4600(a); 4601 and 4605.

The reason this section is important is that Section 9(a) pre-dates L/C 4616, the Medical Provider Network statute. As such, any attempt to harmonize the rights of the employee to seek their own doctor at their own expense against the later enacted Medical Provider Network statute will have to give precedent to the later enacted labor code section. I therefore offer the following as one strategy to retain medical control under the Medical Provider Network while at the same time avoiding lengthy litigation over the admissibility of the employee's non-Medical Provider Network doctor's report.

Strategy for Medical Provider Networks Going Forward
On all new claims, employers and their claims administrators (carrier or TPA) should continue to assert medical control under their Medical Provider Network. Employers will need to make sure that the notice process to the employee is complete and well documented. That is one of the issues currently facing the trial judge on remand, i.e. was there a valid Medical Provider Network in place. Had there been better documentation on the employer's notification process presented at trial, the issue of applicant attorneys' attempt to seize medical control may have been avoided.

However, the real question deals with the use by applicant attorney of L/C 4605 as a means to get his non-Medical Provider Network doctors reports admitted and relied upon. What is most interesting is the caption for that section:

"Consulting or attending physicians provided at employee's expense."

"Nothing contained in this chapter shall limit the right of the employee to provide, at his own expense, a consulting or any attending physicians whom he desires."

It must again be noted that this language was in the Labor Code long before L/C 4616, i.e. the Medical Provider Network enabling statute which became effective in 2004. As noted above, under the rules of statutory construction, the later enacted takes precedent over the former when seeking to harmonize the two as to current legislative intent.

Recommended Procedure
I therefore recommend that the injured employee be informed, as part of the employer's or carrier's acknowledgment of the claim, that a valid Medical Provider Network is in place and that the employee's cooperation is expected. Next, it should state "that they are free under L/C 4605 to seek their own consulting or attending physician, at their own expense. They will be told at that time that if they do avail themselves of this option under L/C 4605, their consulting or attending physicians medical reports will be tendered to the Primary Treating Physician for this injury who, under the Medical Provider Network statute is the controlling doctor (L/C 4061.5) This way, the consulting physician's report will have been admitted for use by the Primary Treating Physician as he/she deems appropriate.

At the same time, the normal Medical Provider Network process will be enforced as is current policy. Demand will be made that the employee continues to be seen for diagnosis and treatment by a Medical Provider Network doctor. If there is a dispute as to diagnosis or treatment by either the applicant's attorney or the L/C 4605 obtained consulting report, that dispute over the diagnosis and/or treatment will be handled under the Medical Provider Network's 2nd, 3rd and if necessary, the Independent Medical Review process.

We will also be requesting from the employee an acknowledgement, under penalty of perjury that the employee has already paid or understands that he/she is the ultimate responsible party for paying their L/C 4605 obtained physicians as well as any other related bills for testing and other costs. We will object to the fronting of said costs by the applicant's attorney or any liens from the consulting physician unless it is clear that they understand the applicant's obligation to pay their costs.

Under this scenario, employers and their carriers or Third Party Administrators will be able to use the full weight of the Medical Provider Network process while at the same time, dealing with non-Medical Provider Network procured medical diagnosis and treatment. This will help keep the employee within the Medical Provider Network and, if handled in a swift and judicious manner, help hasten a timely closure of the claim.

Just when you thought the claim by your injured employee was finally over and closed with a voluntary resignation, you still might have to meet with him/her to discuss possible return to work. This is due to the Interactive Process (I/P) rules imposed on you by the Fair Employment and Housing Act (FEHA). You will all remember that failure to enter into an Interactive Process, where there are work restrictions, is a violation of the law itself.

All the plaintiff needs to do is show that you did not meet with him/her in good faith to discuss how you might accommodate the return to their usual and customary job. If you did not do an Interactive Process, then it becomes just a matter of how many zeros go on the check you will ultimately write. I need only point to the over $2.2 million dollar jury verdict against the Auto Club for failure to do an Interactive Process with Mr. Weisinger when his doctor recommended an accommodation and they ignored him.

Well, Yogi's saying is also true when it comes to liens. They are filed for everything you can imagine including medical costs, translators, investigators and even pharmacies. The problem has been that they take on a life of their own and have clogged the system to such a degree that other more important matters such as hearings and trials for claims are being needlessly delayed.

However, there appears to be a light at the end of the tunnel. The Director of Industrial Relations (DIR) and the Administrative Director (AD) for workers comp have been listening. Effective May 23, 2012, new court rules are now in effect that are intended to cut down on the number of continuances a lien claimant may request and reduce greatly the number of documents that can be filed in support of the lien. The intent is to help reduce the huge backlog of unresolved liens which do nothing more then keep claims open.

The new rules require someone filing a lien to request a conference before actually filing a Declaration of Readiness (DOR) for a trial date. Lien claimants will also be limited to only one continuance and of the greatest importance is the judge's ability to dismiss the lien if the claimant fails to appear at the required conference. Finally, there is also a rule that allows the claim to be dismissed if the lien claimant fails to file a timely request for trial after the conference if the claim is not resolved at that time. The bottom line — a quicker resolution to a problem that has plagued the system for too many years.

There were also comments by insurance company claims professionals relating stories about how convoluted the system really is. We heard from healthcare professionals on the abuses they are seeing under the Utilization Review system which it seems has taken on a life of its own. And of course we heard from employers on everything from rising costs due to the lack of control over the medical delivery system to the outright fraud being seen when an employee is terminated for valid reasons and an industrious attorney files a cumulative trauma claim. It was to this issue I directed my remarks, and I thought it appropriate to share them with you in this article.

It is time to revisit and re-evaluate the value of this statutory condition (L/C 3208.1), which is rapidly becoming yet another undue burden on both employers as well as the workers' compensation system. Cumulative trauma claims are currently being used, and in many instances abused by disgruntled employees who are no longer on the payroll. By filing post-termination cumulative trauma claims, employees are circumventing the legitimate needs of businesses to make personnel decisions based on the employer's current financial situation and needs.

One need only look at the increase in cumulative trauma claims that are being filed after an employee has been laid off. While there has been no specific injury that they can point to, many are now claiming that "work" has worn them out and that they are therefore entitled to even more money than that which was bargained for as a part of their employment agreement.

I would not argue that there are not real and viable events that can lead to a compensable situation. Asbestosis would be the best example of a condition that was unknown to either management or their employees for many years. Litigation over asbestosis has been ongoing since then, and I believe that the compensation awarded to injured workers in such cases is justified.

However, when an employee who is hired to do a job that produces no discernible injuries and who has been laid off for legitimate, non-discriminatory reasons is able to work around the system by claiming a cumulative injury, it is time to reassess the value of that part of the Labor Code. We must decide if both parties to this equation are being properly served. Or, is this an abuse of the system that has been allowed to fester too long?

As a starting point for this discussion, when someone is hired for a job — whether it is brain or brawn — the employer is taking on the whole person as he/she finds them. When the employee arrives at the jobsite, he/she does not simply place their body in the corner to rest while they do their job. Employers hire the entire package as he/she finds them and is responsible for same.

I would then point out that whether or not we like it, all of us are "wearing-out" as the years pass. The question then is, "Why should an employer be responsible for the normal aging process vs. being responsible for a specific injury?" I argue that they should not.

I therefore offer three possible options for consideration. Any or all of these will allow legitimate cumulative injuries to be raised as part of the work bargain while at the same time making employees responsible for their own "wearing out."

Take cumulative trauma claims out of the Labor Code and allow employees to make cumulative trauma claims as they would a specific injury. This will place the burden of proof on the employee to show, just as they do with a specific injury, how this trauma is more than part of the "wearing out/aging" process.
1. Change the definition of a cumulative trauma injury to more closely mirror that of psych/stress claims. In other words, let the employee show how the preponderance of actual work, absent the normal aging process, had caused additional disability which should be covered.
2. Since the employer is hiring the entire package, we should set up a "depletion" allowance funded by the employee. There should be a percentage taken from each dollar earned which will be placed in a fund similar to a 401K. It will belong to the employee and will be portable so that it follows him/her throughout their working career. At the time they become eligible for Social Security they would have access to this additional fund of dollars. This would result in taking the burden of the normal aging process off the backs of employers.

Regardless of which of these you feel would be the best solution to a growing problem, the real point is that this is a further drain on employers, and therefore the California economy, and needs to be addressed. I only hope that all of that which was shared will not have fallen on deaf ears. Only time will tell, and I promise to keep you informed as we see positive changes to the system to make it fair for everyone.

The unemployment rate seems to be on the decline, i.e. around 8.3% still without jobs. However, this is still 3% higher than when the financial "fit hit the shan" almost 4 years ago. Obviously, when the ranks of the unemployed are high, employers who are looking to hire are inundated with candidates. So much so that some employers are now disqualifying qualified applicants by advertising that "the unemployed" need not apply.

In light of this phenomena in job advertisements, Congress in their usual, under-informed method of operating, as well as several states, have begun the process of amending their anti-discrimination laws to add "unemployed status" as a covered class. New Jersey has already passed such legislation and believe it or not, the California legislature is also considering a bill. I can only wonder if this tendency to stupidity will ever end. In the meantime, be forewarned ...

Can You Refuse To Hire A Felon?
Suppose you are looking to hire someone for a sensitive position? One where the person hired will handle large amounts of money and/or materials. Your normal practice is to conduct a criminal background check on all applicants. What do you do when during your initial telephone interview, the applicant reveals a significant criminal felony conviction for the distribution and sale of narcotics, she/he has served time, and is now on probation?

Most employers would normally reject this applicant out of hand. The basis for your decision would be two-fold. First is the timing of the recent conviction with the second being the very nature of the offense. The person you are looking to hire could be responsible for large amounts of money, merchandise or even supplies. You conclude that if this person is willing to sell drugs for money, they are too a high a risk for you to hire them. However, like the situation with the "unemployed" person noted above, don't be so hasty to act.

In this case (it is real), the applicant filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) alleging race discrimination. Your initial reaction, which was mine as well, is "You have got to be kidding."

You conducted the interview over the phone so that you could not see what race the person was. Secondly, your decision to not hire was based on a legitimate business reason. You would think this would be more than enough to defend your position. Well, it was not ...

The Equal Employment Opportunity Commission decided that they would expand the overall scope of their investigation and began looking at this employer's entire hiring practices including its use of criminal background checks. They have taken the stance that an employer's policy or practice of not hiring someone because of a criminal conviction is a violation of Title VII of the Civil Rights Act of 1964 unless the policy or procedure can be show nto be a necessary business practice.

They start by using statistics that show that African-Americans and Hispanics are convicted at a higher rate than other races. They then extrapolate this to mean that employment decisions which have a criminal conviction component create an adverse impact on the two classes which they have labeled "adverse impact discrimination" which they define as a "substantially different rate of selection at all levels of employment."

It must be noted that both the Fair Credit Reporting Act (FCRA) and the Equal Employment Opportunity Commission as the enforcement agency have established the overall legal framework. Note that they are very serious about this issue as evidenced by the recent agreement entered into by Pepsi where Pepsi agreed to pay over 3 million dollars and to provide job offers and managerial and supervisor training to settle the case.

Here in California, an employer cannot ask questions about any arrest that did not end in a conviction and may not get this information from other sources. Even if the employer does gather this data, but does not use it in its employment decision, the fact that they had it could have a chilling effect on their final decision, which would be very difficult to overcome if challenged. The best way to protect yourself is the development and implementation of a policy that takes into consideration the actual offense, the timing (6 weeks ago or 16 years ago) and of course the very nature of the job that you are looking to fill.

This is very similar to what you go through when doing an interactive process with an employee who is ready to return to work. Employers need to be thorough in your hiring process and if someone is going to be rejected because of a criminal conviction, be sure to go that next step to ensure that you have all the information needed to make an informed and defensible decision. And of course document, document, document everything in case you are challenged.

And to add fuel to the "big brother is watching you" fire ...

The following is a direct quote from a recent Board of Equalization flyer (Publication 165):

"Board of Equalization (BOE) permit and license verification visits help educate business owners and keep our tax system fair".

"Most business owners know they need a state seller's permit to sell or lease merchandise in California ..."

I cannot argue with this statement. It is the next paragraph that scares me:

"As part of the Statewide Compliance and Outreach Program (SCOP), Board of Equalizattion representatives (SCOP specialists) conduct door to door visits to nonresidential businesses. They visit individual businesses to educate business owners regarding their tax responsibilities, to make sure the business has the required state tax and fee permits they need, and to make sure the business has a city or county business license, if one is required. In addition, they verify/update Board of Equalization account information and review business operations compared to returns filed to provide guidance on proper reporting." You can limit what they see, so if someone from the Board of Equalization arrives, ask for specifics as to what they want to see.

This article is an excerpt from the April 2012 edition of From The Hotline published by Stuart Baron & Associates and Workers' Compensation Claims Control. It is used with permission under the copyright of Stuart Baron & Associates.