Bunkhouse rule, personal convenience doctrine





AOE/COE: bunkhouse rule, personal convenience doctrine, Lab. Code § 3202.

Warner, R 2-5 B232190 ADJ264969 writ issued 10/28/11

Source: http://www.dir.ca.gov/wcab/wcab_appeal.htm

Timeline set forth for selecting an agreed medical evaluator and requesting a panel qualified medical evaluator

October 27, 2011 by  
Filed under DWC News, News





The Workers’ Compensation Appeals Board (WCAB) issued an en banc decision in Messele v. Pitco Foods Inc. Cal. Wrk. Comp. LEXIS 144, on Sept. 27, 2011. The decision concerns the number of days the parties in a represented case must wait after an agreed medical evaluator (AME) proposal is mailed before requesting a qualified medical evaluator (QME) panel from the Medical Unit. In Messele v. Pitco Foods the WCAB held (1) when the first written AME proposal is mailed or by any method other than personal service, the period for seeking agreement on an AME under Labor Code section 4062.2(b) is extended five calendar days if the physical address of the party being served with the first written proposal is within California; and (2), the time period set forth in Labor Code section 4062.2(b) for seeking agreement on an AME starts with the day after the date of the first written proposal and includes the last day.

Effective immediately, the Medical Unit will only issue panels that comply with the holding in Messele v. Pitco Foods Inc. In reviewing panel requests currently on file, if a panel request is found by the Medical Unit to have been filed prematurely, the unit will send a letter to the parties indicating their request will not be filled because it was filed prematurely pursuant to Messele v. Pitco Foods.

Panels that were previously issued, where the panel request was filed with the Medical Unit prematurely pursuant to Messele v. Pitco Foods, will be handled in the following manner:

  1. Where a panel was issued and a QME evaluation was conducted by a doctor selected from the panel the parties should seek a court order from a workers’ compensation judge indicating that the medical evaluation was improperly procured under Messele v. Pitco Foods Inc. To help the Medical Unit identify and process these requests we are asking that filers send the following documents to the Medical Unit:
    1. A cover letter that indicates the request is a result of the Messele v. Pitco Foods case
    2. In the cover letter indicate the number of the prior panel that is being replaced (The panel number appears on the list of QME’s previously sent)
    3. A copy of the order issued by the board
    4. A new form 106, the represented panel request form, filed in compliance with Messele v. Pitco Foods
    5. A copy of a new AME offer letter indicating the nature of the dispute and offering the name of at least one doctor to act as an agreed medical evaluator in the case
  2. Where a panel was issued but no QME evaluation was conducted, the Medical Unit will issue a new panel if a filer establishes the panel request complies with Messele v. Pitco Foods. To help the Medical Unit identify and process these requests we are asking that filers send the following documents to the Medical Unit:
    1. A cover letter that indicates the request is a result of the Messele v. Pitco Foods case
    2. In the cover letter indicate the number of the prior panel that is being replaced. (The panel number appears on the list of QME’s previously sent.)
    3. In the cover letter please indicate the date of service of the original AME offer letter and the date of service of the original form 106
    4. A new form 106, the represented panel request form, filed in compliance with Messele v. Pitco Foods
    5. A copy of a new AME offer letter indicating the nature of the dispute and offering the name of at least one doctor to act as an agreed medical evaluator in the case

In these circumstances, the Medical Unit is requesting filers to provide additional information beyond what would ordinarily be required to issue a QME panel to facilitate the panel process.

Practice pointers from Tsegay Messele v. Pitco Foods Inc and the regulations:
To facilitate the review process at the Medical Unit and beyond, clearly indicate the nature of the dispute for which you are requesting a panel in the AME proposal letter or the cover letter that sometimes accompanies the panel request to the Medical Unit.

The WCAB points out in footnote 11 of the decision “[a]lthough Labor Code section 4062.2(b) may not explicitly require “service” of the AME proposal, the wise practitioner will avoid any doubt as to when the first written proposal was “made” by including proof of service. (See Cal. Code Regs., tit. 8, § 10505.) Adhering to the WCAB recommendation about the AME proposal letter will help speed the review process and reduce disputes that need to be resolved.

It is strongly recommended that litigants refrain from filing objections to the panel requests currently on file with the Medical Unit or from sending letters asking to withdraw a panel request that has been filed but not filled, except as specified above. Finally, do not file correspondence with the Medical Unit where the unit is merely being copied on the correspondence. Unnecessary correspondence detracts the processing of panel requests.

Newsline No. 46-11

Source: http://www.dir.ca.gov/dwc/dwc_newslines/2011/Newsline_46-11.html

Adjustment of official medical fee schedule (OMFS) to conform to changes in Medicare payment system is posted on the DWC Web site

October 25, 2011 by  
Filed under DWC News, News





The Division of Workers’ Compensation has posted an adjustment to the inpatient hospital section of the official medical fee schedule (OMFS) to conform to changes in the Medicare payment system as required by Labor Code section 5307.1. The effective date of the changes will be Dec. 1, 2011. Further information and the adjustments to the inpatient hospital section of the OMFS can be found on the DWC Web site.

Newsline No. 45-11

Source: http://www.dir.ca.gov/dwc/dwc_newslines/2011/Newsline_45-11.html

Temporary total disability rate for 2012 will increase to $1010.50

October 21, 2011 by  
Filed under DWC News, News





The minimum and maximum temporary total disability (TTD) rates for 2012 will increase on Jan. 1, 2012. The minimum TTD rate will increase to $151.57 and the maximum TTD rate will increase to $1010.50 per week.

Labor Code section 4453(a)(10) requires the rate for TTD be increased by an amount equal to the percentage increase in the state average weekly wage (SAWW) as compared to the prior year. The SAWW is defined as the average weekly wage paid to employees covered by unemployment insurance as reported by the U.S. Department of Labor for California for the 12 months ending March 31 in the year preceding the injury. In the 12 months ending March 31, 2011 the SAWW increased from $979.90 to $1003.55.

Under Labor Code section 4659(c), workers with dates of injury on or after Jan. 1, 2003 who are receiving life pensions (LP) or permanent total disability (PTD) benefits are also entitled to have their weekly LP or PTD rate adjusted based on the SAWW.

The SAWW may be verified at the U.S. Department of Labor Web site. For the 12 months preceding March 31, 2011: http://ows.doleta.gov/unemploy/content/data_stats/datasum11/DataSum_2011_1.pdf

Newsline No. 44-11

Source: http://www.dir.ca.gov/dwc/dwc_newslines/2011/Newsline_44-11.html

Whether the WCAB, in a 2-1 decision, properly affirmed the WCJ’s determination





Whether  the WCAB, in a 2-1 decision, properly affirmed the WCJ’s determination that the applicant’s injury was caused by a “sudden and extraordinary event” (Lab. Code, § 3208.3(d)).  Applicant, an avocado picker, was injured when he fell off a ladder.

Garcia, R B235258 ADJ7412203 writ issued 10/14/11

Source: http://www.dir.ca.gov/wcab/wcab_appeal.htm

Division of Workers’ Compensation issues first 15-day notice of revisions to proposed public disability accommodation regulations

October 11, 2011 by  
Filed under DWC News, News





The Division of Workers’ Compensation (DWC) has modified its proposed public disability accommodation regulations. A first 15-day notice of modification was distributed today to interested parties and the revised regulations are posted on the DWC Web site. Members of the public may comment on the revisions until 5 p.m. on October 26, 2011.

The proposed revisions to the public disability accommodation regulations are authorized by Labor Code sections 111(a), 133, 5307.3, and 5307.4 and Government Code section 11138.

The revisions in this draft of the regulations include the following:

  • Additional and clarified definitions
  • Inclusion of workers’ compensation law judges in hearing disability accommodation requests as needed during a hearing or under exigent circumstances
  • Clarification that impermissible ex parte communications shall be disclosed
  • Elimination of the proposed Court Administrator Rules sections 10226.1-10226.6  due to statutory changes eliminating the Court Administrator position
  • Minor technical edits

Further information and the modified proposed regulations are posted on the DWC Web site.

Newsline No. 43-11

Source: http://www.dir.ca.gov/dwc/dwc_newslines/2011/Newsline_43-11.html

Division of Workers’ Compensation posts interim pharmaceutical fee schedule data file due to impact of Medi-Cal changes

October 5, 2011 by  
Filed under DWC News, News





he Division of Workers’ Compensation (DWC) has posted an interim pharmaceutical fee schedule data file because of recent Medi-Cal changes. DWC normally posts updated pharmaceutical fee files on its Web site on a weekly basis. DWC has been informed by the Department of Health Care Services, (DHCS) that due to Medi-Cal changes the Sept. 28, 2011 file will be the last file sent to the division for approximately one month.

Several changes in the Medi-Cal program are impacting the availability of updated pharmaceutical fees. Due to statutory amendment, the Medi-Cal maximum fee methodology is changing from the “estimated acquisition cost” to the “average acquisition cost.”  The new formula for the “average acquisition cost” will be based on survey data on actual pharmacy acquisition costs and will not utilize the “average wholesale price” as the prior formula did. First Data Bank, which supplies DHCS with AWP data ceased to publish AWP at the end of September 2011. The new formula will not be implemented until February or March of 2012.

In order to maintain the Medi-Cal pharmaceutical fee schedule until the average acquisition cost methodology is implemented, Assembly Bill 102 (Chapter 29, Statutes of 2011), the “Health Trailer Bill,” was adopted to give DHCS authority to arrange for First Data Bank to continue to supply weekly pharmaceutical fee files using the same methodology that had been used while AWP was being published.

Currently the fiscal intermediary for Medi-Cal is shifting from Hewlett-Packard Enterprise Services (HP) to Affiliated Computer Services Inc., (ACS). Due to this change, Medi-Cal will be using the Sept. 28, 2011 data file to issue payments for approximately one month, until ACS, the new fiscal intermediary, is able to utilize the AWP updated file. When ACS is ready to use the updated AWP data, Medi-Cal will re-process bills to correct payments to conform to the weekly price changes that had occurred during the period that the updated AWP was not available.

The pharmaceutical price data file updated Sept. 28, 2011 is posted on the DWC Web site for use in determining maximum workers’ compensation pharmaceutical payments and is utilized in the simple and compound prescription price calculators on the Web site. The data file will not be updated until the new Medi-Cal file is received which is anticipated to be in approximately one month. At that time the file will include the Medi-Cal rates for the time period when the updated file was not available. The updated file will allow workers’ compensation payers to make corrected payments for pharmaceutical bills that were paid during that period. Payers and providers may consider whether there are contracts in place that may impact the need to re-process bills and issue corrected payments.

The Sept. 28, 2011 data file and price calculators can be accessed through the DWC’s pharmaceutical fee schedule Web page.

Newsline No. 42-11

Source: http://www.dir.ca.gov/dwc/dwc_newslines/2011/Newsline_42-11.html