DISCLAIMER: The statements and opinions contained in this publication are those of the contributors only and are not necessarily those of The State Bar of California, the Workers' Compensation Section, or any government body. This information is intended to be a reference tool only and is not meant to be relied upon as legal advice.
I am excited to announce that the Sections of the State Bar (including the Workers’ Compensation Section) are becoming a new entity, likely at the beginning of 2018. This change will open a world of possibilities regarding what the Workers’ Compensation Section can do for our profession. It will allow us to increase the number of lawyers we reach and to fully embrace the technological advances now available for our work.
The good news is that, after separation, you will continue to receive all of the services and benefits you have come to expect from the Workers’ Compensation Section. The better news is that, without the regulatory limitations and costs associated with being in an agency of the State of California, we believe you will get better service, have much more ability to impact how the Section functions, and be far more satisfied with the new entity that serves you.
Senate Bill 36
The California Legislature, with the support of the State Bar and the Sections, determined that the Sections, including their members, intellectual property and reserves, will be separated from the State Bar – the regulatory agency of the State of California in which they have operated for decades. Going forward, the Sections will operate as a private, 501(c)(6) non-profit entity. A bill (described below) will effectuate this change to allow the State Bar to concentrate on its core public protection missions of admissions and discipline, and to allow the Sections to focus on their core mission of education.
SB 36 was introduced by Senator Hannah-Beth Jackson, Chairperson of the Senate Judiciary Committee, and amended by Assemblyperson Mark Stone, Chairperson of the Assembly Judiciary Committee, with substantial input from the Chief Justice of California, Tani Gorre Cantil-Sakauye. SB 36 provides for the creation of a separate, private, non-profit corporation, governed by a board of directors selected by the individual Sections.
The Sections’ $6.4 million in reserves and intellectual property, including CLE materials and member lists, will go to the new entity. Membership in the new organization will continue to be voluntary. The new entity will not be part of the State Bar, and it will receive no funding from the State Bar’s mandatory membership fees – though the legislation does provide that a membership check-off will continue on regular dues statements for California attorneys, as it has in the past. Last Friday, SB 36 was passed unanimously by the Assembly, and is now making its way through the Senate. Assuming the final version of the bill is passed by the Senate, it is expected to reach the Governor’s desk and be signed into law no later than October 15, 2017.
SB 36 appears very likely to become law. When it does, it will transfer the sixteen Sections (with more than 60,000 members) and the California Young Lawyers Association (with its 48,000 members) into what will become the second largest voluntary association of lawyers in the nation, smaller only than the American Bar Association. Through this new entity, the Workers’ Compensation Section will continue to provide the same education, services and benefits it currently does to all of its members.
The Sections are working diligently to develop and implement a seamless transition plan. Pam Wilson & Associates, headed by the Sections’ former senior executive Pam Wilson, has been selected as the primary consultant to lead the successful transition. If you wish to be part of this historic effort, please feel free to contact me at email@example.com so that I can hear your ideas and put you in touch with the Section leaders in our new entity planning effort. We need your help! If you are currently active in the Workers’ Compensation Section, I encourage you to continue doing everything you do to maintain the strength and vitality of the Section throughout this transition.
The sixteen Sections and California Young Lawyers Association provide enormously valuable contributions on many different levels to all lawyers in California. We look forward to making the most of this unique opportunity for evolution and improvement. Please let me know how the Workers’ Compensation Section can better serve you, and join us as we build a new future for the Sections and for all California lawyers.
Kenneth M. Sheppard
October 6, 13, 20, 2017
Are you taking the workers’ compensation specialization exam this year? Has it been awhile since you’ve taken a timed essay? Do you think IRAC is a foreign country? If so, this webinar is a must have for your exam preparation. Each week, a certified workers’ compensation specialist will cover four of the twelve essays contained in the examination preparation packet released by the specialization committee. The presenters will go over the essay question and present a model answer to the question. They will cover issue spotting for the essay exam as well as the basic substantive law behind each question.
A copy of the practice exam can be found by clicking here.
Week 1 (Oct. 6) will cover essays 1 through 4. Click Here
Week 2 (Oct. 13) will cover essays 5 through 8. Click Here
Week 3 (Oct. 20) will cover essays 9 through 12. Click Here
Attendees are encouraged to complete the essays on their own, under test conditions, prior to each webinar.
Speakers: Kenneth Sheppard, David Skaggs, and Yvonne Lang
Saturday, October 7, 2017
Renaissance Long Beach Hotel
111 E. Ocean Blvd.
Long Beach, CA 90802
6.0 hours of this program meets the specialization requirement of “mechanics of rating permanent disability requirement” for the certified workers’ compensation specialty
In-Person Registration Link
Schedule | Essential Info | Printable Brochure | Mail / Fax Registration Form
Click here for all the details!
By Julius Young
In late June the WCAB issued a clarifying decision in Frances Stevens V. Outspoken Enterprises (State Compensation Insurance Fund) (link at end of this post).
The decision reaffirms the WCAB’s determination that a former home health care guideline, the 2009 MTUS guideline on home health care, is void ab initio.
SCIF filed a writ petition on 8/1/17:
The 2009 MTUS section on home health care was very restrictive. Many severely disabled workers had their home health services challenged while this section was in force. I recall one family that almost went into bankruptcy having to pay for attendant care for a sibling whose home health aides had been yanked away by application of the MTUS section. I settled the home health issue for over a million dollars rather than face the uncertainty of MTUS denials and the looming financial ruin for the family who otherwise lacked resources to pay for someone to look after a worker who could not reliably ambulate and mange herself.
This is an issue that challenges our notions of fairness and compassion.
The 2009 MTUS section on home health care was later replaced, so to some extent Stevens now involves substantive issues less likely to arise. On the other hand, Stevens remains important for its example of the WCAB’s power over MTUS and IMR.
First, a recap. Stevens has been widely watched since it was the vehicle for an attack on the constitutionality of IMR. But that constitutionality argument was rejected by the California Court of Appeal, First District. The constitutionality of IMR was also upheld in March 2017 by the Third District in Ramirez v. WCAB.
However the First District opinion made it clear that the WCAB retained some power to review IMR determinations, stating that:
“The Board’s authority to review an IMR determination includes the authority to determine whether it was adopted without authority or based on a plainly erroneous fact that is not a matter of expert opinion. (§ 4610.6, subd. (h)(1) & (5).) These grounds are considerable and include reviews of both factual and legal questions.”
So this is what the WCAB did in its May 2017 ruling, finding that the 2009 home health guideline was “contrary to California law and the IMR determination that relied on it was therefore adopted without authority.”
In May 2017 the Stevens panel (Commissioners Sweeney, Zalewski and Deputy Commissioner Newman) concluded that:
“The medical evidence supporting Ms. Steven’s need for home health care appears to be compelling. Nevertheless, we are precluded from determining the medical necessity of a home health aide in this case. We observe that the case records contains extensive expert opinion regarding the medical necessity of home health care services to cure or relieve Frances Stevens from the effects of her industrial injury, which is evidence that may be considered in lieu of the invalid Guideline applied here. (§ 4610.5, subd. (b)(2). In the proceedings below, the WCJ found that the “Administrative Director did not act without or in excess of her powers in the IMR determination dated February 20, 2014″ as a basis for denying applicant’s appeal. Because we now reach a contrary conclusion, we will rescind the WCJ’s Findings and Order denying applicant’s IMR appeal and return this matter to the trial level for further proceedings in accordance with our decision. The WCJ may determine whether further hearing is necessary on issues not reached herein, and consider whether, given the passage of time, further development of the record may be necessary. In the event that the WCJ finds that the Administrative Director’s determination is reversed the WCJ may determine what evidence, if any, should be provided to the new IMR reviewer when submitted for review pursuant to §4610.6(i).”
SCIF thereafter sought reconsideration, but their challenge has now been rejected.
The June 2017 Stevens panel makes it clear that the WCAB does have jurisdiction to determine the validity of administrative regulations. Moreover, regulations must meet a two-prong test. They must not be in conflict with the statutes and must be necessary to effectuate the purpose of the statute.
The WCAB panel found that the 2009 MTUS guideline was a Medicare payment standard and did not meet the criteria of the two-prong test. Home health care is a long-standing treatment modality recognized by both California case law and Labor Code 4600. The panel concludes that: “The 2009 Guideline is outside of the Administrative Director’s authority and, because it is not an evidence-based treatment guideline, it is unable to effectuate the purpose of section 5307.27. Accordingly, it is void ab initio.”
So the WCAB has remanded the matter to the workers’ comp judge, who apparently could determine that another IMR review should be done.
The WCJ does not have the power to just order the services. But SCIF could just authorize the requested services. But SCIF had decided to file a writ petition. The end of this saga is not yet clear.
Here is the June 30, 2017 opinion of the WCAB denying SCIF’s Petition for Reconsideration and denying SCIF’s Petition for Removal:
And here is the May 2017 version of Stevens:
© Copyright 2017 by Julius Young. All rights reserved. Reprinted with permission.
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