MAY 2021 Legal Update: Per Page, Medical Legal Fees and Psych Add-Ons

By Stephanie Goodson,

Since our last legal update, the Department of Industrial Relations has issued a price correction to the Medical Fee Schedule: The new medical legal fee schedule took effect on April 1, 2021 and affects all of the following: 1. Medical legal evaluations 2. Supplemental reports 3. Re-evaluations and 4. Doctor depositions.

Many of you have asked whether or not the new fee schedule applies to Primary Treating Physician reports.  Karlin, Hiura & LaSota’s position is that in order for a primary treating physician report to fall under the new fee schedule, it must meet the requirements of medical legal reporting which means (1) an issue is in dispute AND (2) the report is written at the request of a party.

PER PAGE UPDATE
One of the most controversial provisions of the new Medical Legal Fee Schedule is the $3 per page charge on top of the initial flat fee following the doctor’s review of the first 200 pages for an initial evaluation and 50 pages for supplemental and follow up evaluations.  In response, a number of defense attorneys have proposed creative ways to reduce page counts and lower the costs to defendants.  The question becomes:  what can we remove?

OPINION ON MEDICAL LEGAL FEE SCHEDULE
Defendants are understandably up in arms about finding ways to reduce and remove pages while applicant’s attorneys have found themselves with an incentive to provide as many pages as possible to the doctors.

At the recent CAA Convention, it was clear that applicant’s attorneys intend to send a comprehensive set of unredacted records and would fight defendants who remove pages. Their position is founded on the belief that it is not a party’s right to decide what portion of the records are medically relevant.

While it is true that most lawyers are not doctors who can assess what is and what is not medically relevant, there has to be a balance. One can hardly argue the relevance of blank pages, billing statements, fax confirmations, duplicates, proofs of service, and other like documents.  Yet body systems are intertwined, so one body system may affect another, and that is where it is not the attorney’s job to play doctor. For example, pregnancy related records may be relevant when an applicant is complaining of back problems.  Removing too many records may initiate costly litigation or require supplemental reporting to ensure the reporting is substantial.  This may wind up costing defendants more than if a comprehensive set of records had been included from the start.  It would be remiss to assume there will not be litigation on these issues.

The modifications to the medical-legal fee schedule — which is the state’s schedule for reimbursing qualified medical evaluators for reviewing workers comp medical records, writing medical-legal reports and testifying in trials — are predicted to increase fees for such reviews by 22%, according to the WCIRB.  We believe this is a conservative assessment.


PSYCHE ADD ON REVIVAL
The impending litigation over the new legislature is reminiscent of the attempt at SB 863 to remove psychiatric compensable consequences from claims.  We have monitored the WCAB and Appellate Court docket on this legislature over the past two years, and similar to what we anticipate with the new legislation, the passing of SB 863 resulted in heavy litigation, the outcome of which has brought psyche back on many claims.

Catastrophic Injuries
Applicants may have a compensable psychiatric consequence to an orthopedic injury with ratable permanent disability if their injury is catastrophic.  The WCAB in Kris Wilson v. State of Cal Fire 2019 84 Cal. Comp. Cases 393; 2019 Cal. Wrk. Comp. LEXIS 29, issued an en banc decision on how to determine whether an injury is catastrophic. The court in Wilson, supra outlined that it is not the mechanism of injury but rather the nature of the injury itself that makes an injury catastrophic. The court opined that the determination was very fact driven and would take into account factors such as (1) the extent of the treatment received by the applicant which was reasonably required to cure or relieve the applicant from the effects of the industrial injury, (2) the ultimate outcome of the injury once the applicant reached maximum medical improvement, (3) the severity of the physical injury and the impact that it has on the applicant’s activities of daily living, (4) whether the physical injury is analogous to any of the injuries delineated by statute such as loss of limb, paralysis, severe burn or severe head injury, and (5) whether the physical injury is an incurable and progressive disease.

In January of 2021, the WCAB issued a Board Panel decision “not designated as a significant panel decision” in Michael Strauss v. State of California Department of Corrections (2021) 2021 Cal. Wrk. Comp. P.D. LEXIS 33.  There the court found that the applicant’s head injury was not sufficient to support “permanent mental capacity,” but it was sufficient to support the existence of a “catastrophic event” within the meaning of Labor Code 4660.1(c)(2)(B) warranting psychiatric permanent disability  

Also in January of 2021, the WCAB issued a Board Panel decision “not designated as a significant panel decision” in Charlene Sturm v. Coronado Unified School District (2021) 2021 Cal. Wrk. Comp. P.D. LEXIS 4 where the court ruled that the applicant was entitled to psychiatric treatment and psychiatric permanent disability because the injury was a result of a “violent act.”  There the applicant closed a gate on her own finger!  This was enough to satisfy the “violent act” requirement.  We believe that the fact that the mechanism of injury involved applicant being “struck” was relevant to the court’s determination, and that the “strike” factor will come into play when determining what is or is not a violent act.  It is important to note that this particular case was venued in San Diego which may have played into the ultimate outcome of that case.

We will continue to monitor new legislation and case outcomes to ensure we are prepared with the legal expertise to guide you in the litigation decision making process.  Here at KHL, we will always provide you with the exposure analysis necessary to make informed decisions as we navigate cost effective claim resolution together. 

Reach out to Stephanie Goodson directly or any of us if you have any questions, thoughts or comments!