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Workers' Compensation Defense/Subrogation-Bad Dreams of EAMS?

NEWS YOU CAN USE

Bad Dreams of EAMS?

Try This Primer to Get Ready

The WCAB has a mandate to go paperless on or before July 1, 2008. Regulations regarding the EAMS (Electronic Adjudication Management System) have just been published by the DWC. Making sense of these regulations is far less challenging than you might think. Most of the procedures we have done in the past will now be done electronically through a web browser connected to the internet. (Specific GMK tips and observations are italicized and underlined.)

Your organization will have a master username and password, and individual users will have their own names and passwords to access the system. There are a few highlights, including new procedural changes including provision of a new type of WCAB proceeding entitled Emergency Status Conference which are worth noting.

Highlights of the new regulations are as follows:

1. All new cases filed with the WCAB beginning 7/1/08 shall be maintained electronically. Any paper documents properly filed in such cases shall be electronically scanned and then destroyed.

2. The WCAB shall maintain a legacy case file (paper file) for all matters which have not been electronically scanned into the EAMS system. Any new documents received on existing case files will be scanned and destroyed. They will not be placed into the legacy paper file.

3. Legacy paper files will be maintained only until they are fully scanned into the EAMS. They will then be destroyed.

4. For all legacy paper files, the WCAB will provide notice to the official address list that the paper file has been scanned into the EAMS.

5. EAMS will include an electronic form for making changes to the WCAB official address record. The duty to keep the WCAB apprised of address record changes continues to apply, but shall be done electronically on their form. This applies to all parties before the WCAB including lien claimants. Lien claimants shall also have the additional duty of advising as to the name and telephone number of a person available with settlement authority.

6. The continuing duty to advise the WCAB on address changes, continues during the period in which the WCAB has jurisdiction over the case. Specifically this refers to cases with open medical care, or where the time limits to re-open a case apply.

7. Any party before the WCAB may designate their preferred method of service. This preferred method includes first-class mail, e-mail or fax. The preferred method of service shall be noticed on all parties on the official address record.

8. Any party who does not designate their preferred method of service, shall receive service by first-class mail.

9. Every attorney, representative or other party who intends to file documents with the WCAB shall register with the DWC to obtain an EAMS login and password. Your EAMS login and password will be unique to you, not to your organization.

10. Notwithstanding number 9 above, every law firm, insurance company etc. who intends to file any document or access a WCAB file shall register with the DWC for an EAMS login and password for their organization.

11. The individual attorney/representative login information (username and password) shall be subordinate to the organization to which they belong.

12. Unrepresented workers may also obtain access to EAMS by registering for username and password. They will then function the same as other parties. However, they are not required to do so.

13. Everyone who registers as an EAMS participant shall complete a subscriber agreement and file that document with the DWC.

14. The EAMS registration process will require that a person register to be an EAMS participant. Once a person is registered, they must complete an online training course prior to being issued their username and password.

15. All individuals and organizations are legally responsible for any information entered into the system using their login and password. If an individual or organization believes that their confidentiality has been compromised, they have an immediate duty to notify the DWC.

16. The DWC maintains ultimate control over username and passwords such that they can be restricted, suspended or revoked in their discretion.

17. Where technical problems arise with electronically file documents, such as illegibility, an attorney may seek a substitution of that document by filing a Petition to Substitute. The Petition to Substitute must include the proposed version of a document that was unreadable or illegible. If granted, the substituted document will become the WCAB original. However, EAMS will retain the originally filed (illegible) document.

18. The WCAB clerks have the discretion to "repair" any document which is not completely scanned (i.e. edges cut off) and the WCAB will serve notice of repaired documents on all parties. (If everyone gets first-class mail, that sounds like a lot of documents being printed and mailed by the WCAB - GMK) As a practical matter, it also sounds like the attorneys are going to have to really be careful to review any proposed substituted or repaired document to make sure it accurately reflects what they want in the board file.

19. Another new procedure will be a Petition to Move. A Petition to Move is appropriate for a document is electronically placed into the wrong WCAB file, whether that arises from an attorney misfiling the document, or clerk placing the document in the wrong board file. The Petition to Move is filed in the case where the document is supposed to end up, rather than the case where it was wrongly placed.

20. If the Petition to Move is granted, notice of the move will be served on all parties in both the correct and incorrect cases. (Did someone say paperless? - GMK)

21. If the EAMS system is unavailable for more than two hours, a PWCJ may issue an order directing that a document be deemed received as of the date and time it was first attempted to be sent electronically. Please note that unavailability refers to the DWC, and technical glitches on the part of the EAMS user such as their Internet connection being down, does not constitute good cause for an untimely filing.

22. If the EAMS system is unavailable for more than 24 hours, the Court Administrator may allow operations to be accomplished conventionally to the extent feasible. Essentially, this means back to paper until they're up and running again, at which point the documents will be electronically scanned and destroyed.

23. Your EAMS login will allow you to view case files for which you are a party, attorney, etc. You will not be able to access other WCAB case files in which you are not a party. Exactly how this is going to work with respect to different attorneys/representatives within the same organization accessing each other's files is unclear.

24. EAMS will protect the residence addresses, Social Security numbers, dates of birth, and medical records, of injured workers unless you are a party to that case. Members of the public may still access certain information about the case file, but the extent of this information is unclear.

25. Any organization which maintains an organizational login and password has an affirmative duty to notify the DWC immediately upon the termination of employment of any individual within their organization. The law firm will continue to have access to the EAMS case file to which the terminated attorney/representative etc. had been assigned through the organization's login and password.

26. Likewise, where party substitutes in or out of a WCAB file, there is an immediate duty to notify the DWC that representation has commenced or terminated. Once this occurs, the terminated employee/organization will assigned an end date for their access to that file.

27. With the exception of unrepresented workers, any attorney, insurance carrier, TPA or lien claimant must file all documents relating to the WCAB proceedings using e-forms and attachments to e-forms.

28. The appropriate e-form must be filed with your document. If the type of document you are filing does not pigeonhole into one of the e-forms filing documents they have created, an unstructured e-form shall be used, and is provided by EAMS.

29. Compromise and Release and Stipulated Awards. You will submit a scanned copy of the original fully executed C&R or Stipulation with Request for Award, submitted as an attachment to the appropriate e-forms or submitting a C&R or Stipulated Award through the EAMS system. A document which has been sent directly to the WCAB by e-mail or fax shall not be accepted for filing, shall not be acknowledged, and may be discarded.

30. Time for filing. A paper document is deemed filed if received prior to 5 p.m. on a court day. The paper document received after 5 p.m. is deemed filed on the next business day. An electronic document filed at or before 9 p.m. on a court day, is deemed received on that court day. A document received electronically after 9 p.m. on a court day shall be deemed filed as of the next court day.

31. When a document is filed by mail, or personally, the clerk who received the document for filing shall affix an appropriate date stamp to indicate the date and time received.

32. EAMS electronic filings. All electronic filings shall meet the following standards:

a. Only one side of each page shall be used

b. All documents shall include the name of the injured worker and the WCAB numbers.

c. All documents shall be 8.5 x 11, not less than 12 pound weight. PDF versions of documents shall be formatted to 8.5 x 11 portrait format on a white background. For both paper and electronic documents, top, bottom and side margins must not be less than 1 1/2 inches. (All letterhead and documents must conform to this standard, and may need to be revised - GMK). A12 point font shall be used, and must be in one of the following typefaces: Times new Roman, Times, Courier, Palatino, Century Schoolbook or other similar serif font. All typing must be in black. (This means that GMK must switch away from the current Arial font used in our correspondence in favor of Times New Roman or similar)

d. No document shall exceed 25 pages in length without leave of the WCAB.

e. All pleadings, petitions, briefs and notices shall include the name of the injured employee and the EAMS case number. (It is unclear whether the EAMS case number and the WCAB case number will be different, but it looks like they will be - GMK).

f. All documents otherwise done on pleading paper shall be either 1 1/2 spaced or double-spaced. Exception is made for block quotes and headings which may be single-spaced.

g. Each document or set of document shall be topped by a document coversheet. If a set of documents is being filed, a separator sheet shall be placed between each separate document. Document cover sheets and separator sheets are EAMS documents.

h. All electronic documents shall be in PDF format with the set up of 8.5 x 11 inches, portrait format, white background, black-type

i. Whenever feasible all PDF files must be prepared as a "text PDF” meaning that the document has been converted to PDF format electronically and not by scanning.

j. No single document shall be over 3 Mb, except for medical reports. Anything larger than that shall not be filed without prior leave of the WCAB.

k. Any document that is required to accompany an electronic form shall be filed as an attachment to the electronic form provided by EAMS.

l. EAMS has the following electronic documents (e-forms) available:

i. Applications for Adjudication of Claim

ii. Answers to Applications

iii. Declaration of Readiness to Proceed

iv. Compromise and Release

v. Stipulation with Request for Award

vi. Notice of Request for Allowance of Lien

vii. Application for SIF Benefits

viii. Change of Address

ix. E-Form for Unstructured Documents

x. Petition to Terminate Liability for TTD

(Please note these are the e-forms that will be the coversheets you will attach to PDF copies of the entitled documents, not the original document itself)

33. Physician reports are to be filed with the unstructured document e-form. Duplicates shall not be filed. This means that a diligent search must be undertaken of the EAMS case file to determine whether or not the report you are filing already exists in the EAMS file. Permanent and stationary reports shall be designated as such in the EAMS system by the filing party.

34. New timeline on filing and serving medical reports. After an Application has been filed, all parties and lien claimants have the continuing duty to file and serve all medical reports in their possession or control within six days of receipt. The continuing duty is suspended for filing medical reports upon the issuance of an award or order of that results all pending issues, however the continuing duty to serve is not been suspended.

35. New timeline for serving responsive medical reports. As before, together with the filing of a Declaration of Readiness any unserved medical reports shall be filed. Within six days after receipt of a Declaration of Readiness by an opposing party, you will file all medical reports in your possession that have not previously been filed by any other party or lien claimant. The duty to file and serving within six days continues.

36. The continuing duty to serve in file medical reports is extinguished upon the issuance of a final award or order that resolves all issues in the case. This is further defined to include an order of dismissal with prejudice, or an OACR that resolves all outstanding liens.

37. X-rays, MRIs and imaging studies shall not be submitted to the WCAB. (Clearly, this does not apply to radiologist interpretations of imaging studies - GMK).

38. As before, certain documents are not to be filed with the WCAB. This includes letters between parties, subpoenas, deposition notices, medical appointment letters, proofs of service, etc., and further includes copies of any decision by any state or federal court, although such decision may be cited in pleadings.

39. On the day of trial, (not the day the MSC - GMK) each party shall personally serve on each opposing party a list of exhibits that the party proposes to offer into evidence. This will include exhibits listed at the time of the MSC and exhibits that the party did not list at the time of the MSC. For each document, the parties shall supply the EAMS document number for the document which the party shall have obtained from within the EAMS. This provision does not apply to unrepresented workers. (With the input of the handling attorney/representative, staff should be directed to produce a trial exhibit list from the MSC statement together with the EAMS document number for each exhibit offered - GMK).

40. Notwithstanding any other provision in the proposed rules, all documents must be electronically filed and served no later than 9 p.m. of the court day prior to any scheduled hearing. (These rules define hearing as the equivalent of trial - GMK). Failure to comply with this rule may result in evidentiary sanctions.

41. A new form of expedited hearing will now become Declaration of Readiness for Emergency Status Conference. This is done by way of a walk through at the WCAB. The party requesting the conference is required to make a good-faith effort to notify the attorney for the other party of the issues on which the emergency status conference is being requested, the nature of emergency relief that will be sought, and the date time and place that the Declaration of Readiness to Proceed to an Emergency Status Conference will be submitted. Good-faith effort shall at a minimum consist of at least one telephone call to the opposing attorney. If the opposing attorney does not result in at a direct conversation with the opposing attorney, at least one attempt to e-mail, e-fax, or fax the other party the information set forth above. If the opposing attorney opposes the request, the basis of their opposition shall be set forth. The party requesting a Declaration of Readiness for Emergency Status Conference shall also submit a separate written declaration under penalty of perjury specifically and in full detail facts supporting that there is a bona fide emergency presenting a clear and substantial risk of imminent and irreparable harm to the party submitting the Declaration of Readiness to Proceed. Where detailed facts surrounding the filing of this extraordinary procedure are not met, this new Declaration of Readiness will not constitute an adequate remedy. A WCJ shall not approve one of these new Declarations of Readiness to Proceed unless it is demonstrated that there is a bona fide emergency representing a clear and substantial risk of imminent and irreparable harm, and that setting the matter for either and MSC or for an Expedited Hearing will not constitute an adequate remedy, and that the party requesting the Emergency Status Conference has adequately complied with the notice requirements. The hearing set in response to an Emergency Status Conference shall be set within three to 10 calendar days depending on the nature of the emergency.

42. Rules regarding sealing medical records and WCAB case files have been updated to accommodate electronic files.

43. Electronically filed records shall be maintained by the WCAB for at least 50 years after the filing of a case opening document. This includes legacy paper files which are subsequently scanned to electronic format. It does not include miscellaneous medical records which are not medical legal reports and non-P&S reports from treating physicians. At any time after a paper file has been converted into an electronic file, the paper file may be destroyed without notice.

44. Rules regarding media coverage of WCAB proceedings are updated. Basically, the media is entitled to attend but not record WCAB proceedings unless they obtain an order from the WCAB beforehand.

45. Notwithstanding the 50 year rule above, reporter’s transcripts shall be retained for a period of six years, and may thereafter be destroyed.

46. The definition of a "walk-through document" is expanded to include EAMS filings, if the filing is so designated. This includes the same types of documents which were previously allowed, Compromise and Release, Stipulated Award, vocational rehabilitation fee petitions, deposition fee petitions, and petition to compel attendance at a medical examination or deposition. However, an electronically filed walk-through document will now require a personal appearance on the first court day following the filing before the clerk, who will assign the matter to a workers compensation judge, the party will then have to appear before the WCJ. If you do not appear on the next court day, the walk-through document will be assigned to a WCJ for action on a non-walk-through basis.

47. Provision has been made for electronic filing of Notices of Compensation Due issued pursuant to Labor Code Section 129. Opposition must be filed within 15 days and set forth good cause. A hearing shall be set within 45 days thereafter. Similar provisions apply for notices of audit penalties.

48. Provision has been made for electronic filing of Rehabilitation Appeals in the same basic format as was done with paper.

49. Provision has also been made for the issuance of panel of arbitrators for mandatory arbitration issues. The notice of panel will now be served electronically by the WCJ.

Workers' Compensation Defense/Subrogation-PAUL CRUZ v. MERCEDES-BENZ OF SAN FRANCISCO

CASE LAW UPDATE

The WCAB has issued an En Banc decision on the amputation exception to the 2 year TD rule, holding that a spinal surgery that involved the cutting of an internal body part of the spine did not meet the common sense definition of an amputation.

PAUL CRUZ v. MERCEDES-BENZ OF SAN FRANCISCO

The Board held that the word "amputations," as used in section 4656©(2)©, means the severance or removal of a limb, part of a limb, or other body appendage, including both traumatic loss in an industrial injury and surgical removal during treatment of an industrial injury. This definition conforms to our understanding of the common meaning of the term "amputation," which encompasses external projecting body parts, not internal parts, even if they include bone.

This holding involved one of the exceptions under Labor Code §4656©(2), that, if triggered, would entitle an injured worker to temporary disability indemnity beyond the 104-week/two year cap set forth in Labor Code §4656©(1).

Workers' Compensation Defense/Subrogation-The August 2007 supplement to the Workers’ Compensation Laws of California

The August 2007 supplement to the Workers’ Compensation Laws of California has been issued. Pertinent highlights are as follows:

Administrative Penalties- The AD has specified the amounts of, and procedures for, imposing penalties in amounts up to $400,000.00 against employers and insurers who knowingly and unreasonably delay or refuse payment of compensation to injured workers with a frequency that indicates a general business practice.

See 8 Cal. Code Reg. §§ 10225-10225.2, effective 5/26/07.

Medical Treatment Utilization Schedule-The AD has adopted new rules that essentially leave the ACOEM Guidelines in place. New acupuncture guidelines that supersede the ACOEM Guidelines on acupuncture were also adopted.

See 8 Cal. Code Reg. §§ 97292.20-97292.23, effective 6/15/07.

Utilization Review Enforcement-The AD has adopted new rules that set forth timelines and conditions to be met whenever a request for authorization of medical treatment will be delayed, modified or denied. The rules provide for a routine investigation to be initiated at each claims adjusting location at least once every five years and at each utilization review organization at least once every three years. Target investigations may be conducted based on information indicating the possible existence of a violation of utilization review laws or regulations. The AD may assess penalties of up to $50,000.00 against claim administrators that do not comply.

See 8 Cal. Code Reg. §§ 9792.11­9792.15, effective 6/7/2007.

Pre-Designation of Personal Physician-The AD has specified that a “personal physician” includes a medical group, if the medical group is a single corporation or a partnership composed of licensed doctors of medicine or osteopathy, which operates an integrated multi-specialty medical group providing comprehensive medical services predominantly for non-occupational illnesses and injuries.

See 8 Cal. Code Reg. §§ 9780, 9783, effective 2/21/2007.

Official Medical Fee Schedule; Physician Fee Schedule-The AD has established maximum allowable reimbursement amounts for certain procedures (procedure codes 99201 through 99205 and 99211 through 99215) for physician services, set forth in the February, 2007 Addendum to Table A of the OMFS Physician Services Fees for services rendered on or after February 15, 2007.

See 8 Cal. Code Reg. § 9789.11.

Official Medical Fee Schedule; Pharmaceuticals-The AD has set forth a maximum reasonable fee for a pharmacy service or a drug not covered by a Medi­Cal payment system, in other words for so-called “repackaged drugs”. The regulation applies to all pharmaceuticals dispensed or provided on or after March 1, 2007.

See 8 Cal. Code Reg. § 9789.40, effective 2/28/07.

Spinal Surgery Forms-Changes were made in May 2007 to both the application for Spinal Surgery Second Opinion by physician list and Objectiion to Treating Physician’s Recommendation for Spinal Surgery.

See 8 Cal. Code Reg. §§ 9788.11, 9788.31, effective 5/23/2007 and 5/21/2007, respectively.

Workers' Compensation Defense/Subrogation-Dianne Benson v. The Permanente Medical Group, PSI

Dianne Benson v. The Permanente Medical Group, PSI;

Athens Administrators OAK 297895; OAK 326228

(WCAB En Banc 12/13/07)

Wilkinson who? In a watershed decision, the WCAB has decided that the principle of awarding a combined permanent disability based upon two successive industrial injuries becoming permanent and stationary at the same time, is no longer the standard.

Dianne Benson was found to have a 62% permanent disability based upon the combined effects of a specific injury and a cumulative trauma injury. The total award was 62%. The AME in the case, apportioned 50% of the overall permanent disability to a specific injury, and 50% to a cumulative trauma.

The En Banc opinion gives great deference to the adoption of Labor Code Section 4663 and the repeal of Section 4750. This, according to the court, was a major shift in the rules of apportionment. A new “causation regime” was created which requires all potential causes of permanent disability to be separately addressed and considered when apportioning disability pursuant to Labor Code Section 4663. Thus, separate permanent disability awards are to be granted in the case of successive industrial injuries.

The court held that each separate injury requires a separate discussion by the medical expert in order to determine the causative sources of disability. There will be instances where an expert cannot parcel out with reasonable medical probability the approximate percentages to which each successive industrial injury contributes to the overall permanent disability.

In Ms. Benson’s case, her award of 62% permanent disability was worth $67,016.25. After reconsideration, she was awarded two separate awards of 31%, each worth $24,605.00, for a total award of $49,210.00. This represents a roughly 23% reduction in the value of her award.

We believe this decision will have a chilling effect on the filing of cumulative trauma claims be applicants. However, for the aggressive defendant, it will provide legal basis for filing a cumulative trauma claim where reasonable medical basis exists.

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