A Discussion Regarding California Code of Regulations, Title 8, Sec. 9785.

The latest submission to the DGC website (available also using AskDGC@DGCAttorneys.com), came from a client who asked:  “Is there a Labor Code Section to support an adjuster stopping TD benefits based on no recent medical report?  When should an adjuster stop TD benefits if there is no medical evidence?”

Our response noted that there is supporting legal authority for an adjuster to halt TD benefits, and shared a few of the more common situations where one should, if appropriate for strategic management of a claim, keeping in mind each claim is unique and managed under various client guidelines.

For instance, in accepted claims where initial eligibility for TD benefits is a pending issue, 8 CCR §9785(d) indicates that the “…primary treating physician shall render opinions on all medical issues necessary to determine the employee’s eligibility for compensation…”  Thus, since a medical report is necessary for determination of TD entitlement, then the absence of a report addressing the issue would render entitlement indeterminable by the adjuster.

At any point in the life of a claim, an adjuster can proactively ask the PTP for information necessary to administer the claim (such as disability status and work restrictions), and the PTP has 20 days to respond per 8 CCR §9785(f)(7).   If the PTP then fails to respond, TD benefits can indeed be stopped, if appropriate to the claim circumstances.

Moreover, 8 CCR §9785(f)(8) requires the PTP to provide a PR-2 Report (or narrative containing the same information) every 45 days when there is continuing medical treatment, even if there is no change in the claimant’s medical condition.  The PR-2 Report format (8 CCR §9785.2) essentially requires the PTP to address TD status every 45 days, including how long the claimant will be off.  If the last report is over 45 days old, an adjuster can schedule an appointment with the PTP and send the claimant a request to attend, along with a Notice of Intent to Suspend TD benefits.  If the claimant fails to attend, then TD benefits can be suspended, per Labor Code §4053.

Keep in mind that none of the aforementioned applies if there is an Order for continuing TD payments.  Also, under Labor Code §4053, for accepted claims, “suspending” TD benefits means those benefits will be withheld, and if the claimant later comes into compliance, those benefits will be payable, along with TD benefits restarting.

California Code of Regulations, Title 8, §9785: Click here

California Labor Code §4053: Click here

AskDGC! Disclaimer:  Click here

On March 2, 2018, associate attorney Carl Taber of DGC’s San Francisco office obtained a Joint Findings and Award in which the WCJ agreed that the AME had not effectively rebutted the PD schedule, currently resulting in approximately $46,000.00 in PD savings for the defendant, a self-insured public transportation provider.  The applicant, a long-time bus driver for the employer, sustained a specific injury to his shoulders helping a wheelchair-bound passenger onto the bus.

The case went to trial on the issue of permanent disability calculations under Almaraz Guzman II vs. the AMA Guides, 5^th Edition.  The AME had calculated WPI for both shoulders under the range of motion method as indicated in the Guides, but also provided what he claimed was a “more accurate” Almaraz Guzman calculation of shoulder injury based on grip strength measurements.  Although grip strength measurements are not favored under the AMA Guides, a growing wave of med-legal evaluators have been utilizing them as part of an Almaraz Guzman analysis to provide higher ratings than those contemplated by the presumptively correct PD schedule, and many judges have deferred to an AME’s judgement on WPI calculations.

Mr. Taber successfully argued that the AME’s opinion as to the grip strength impairment was not substantial medical evidence due to the AME’s conclusory language, the lack of atrophy, the clear omission of manual muscle testing, and the fact that reliance on grip strength testing is contraindicated by the AMA Guides themselves. In summation, the WCJ found it “…implausible that applicant would have been able to continue driving a bus…up to 60 hours per week for nearly two years as of the date of this trial in the presence of such substantial loss of strength.”

Currently on recon, this case may provide a needed turning point for employers and claims administrators as defendants, and should be followed closely.

Click below to read redacted Joint Findings and Award and Opinion on Decision; Applicant’s Petition for Reconsideration; Defendant’s Answer to Petition for Reconsideration; and the WCAB Judge’s Report and Recommendation on Petition for Reconsideration.

Joint Findings and Award & Opinion on Decision: Click here

Applicant’s Petition for Reconsideration: Click here

Defendant’s Answer to Petition for Reconsideration: Click here

WCAB Judge’s Report and Recommendation on Petition for Reconsideration: Click here

On January 3, 2018, at a Lien Conference at the Santa Ana WCAB, the lien holders of record withdrew all liens for medical treatment provided to a California school district cafeteria worker convicted of workers’ compensation insurance fraud under Insurance Code §1871.4, subd. (a) (4), for fraudulently obtaining medical treatment.  The claimant was sentenced to three years’ probation and ordered to pay restitution.

Securing deposition testimony and a well-timed workers’ compensation claim dismissal, DGC’s Jeff Hammill assisted in the criminal prosecution.  In further obtaining the withdrawal of all liens, Jeff wrapped up the defense for his client in the workers’ compensation case.  The file was referred to Jeff from the start of litigation in January 2014.

On December 14, 2017, in support of Riverside County’s fraud conviction, the Fourth District Court of Appeal upheld a restitution order for $34,925.09 in medical, deposition, investigation, and salary reimbursement expenses to be paid by the convicted claimant.  The claimant challenged the majority of this amount, claiming abuse of judicial discretion and arguing culpability only for costs incurred after being caught “milking” the claim.  The court reminded the claimant that by pleading guilty to a misdemeanor on a felony insurance fraud charge, she had by law already admitted to “faking” the entire injury.

Claimant had claimed a specific injury to her low back, spine and spinal cord from lifting a box of frozen burritos. She subsequently told her doctor about inability to lift her arms, sit for prolonged periods, or walk without a limp.  However, video surveillance obtained while treatment was ongoing, and shown to the treating orthopedist, clearly showed claimant walking with a normal gait through a pumpkin patch with children, squatting and bending with no evidence of pain, driving for long distances, carrying items, shopping, and gambling in Palm Springs, CA.

Minutes of Lien Hearing: Click here

4th Appellate District Opinion: Click here

Order Dismissing WC Case: Click here