WORK COMP LEGAL UPDATE

EN BANC WCAB DECISION RE: CVC & KITE

The Appeals Board has issued a combined en banc and panel decision in Sammy Vigil v. County of Kern (June 2024) addressing the Combined Values Chart.

Specifically, the Board decided the CVC may be rebutted and impairments may be added where an applicant establishes the impact of each impairment on the activities of daily living (ADLs) AND either shows:

(a) There is no overlap between the effects on ADLs as between rated body parts; or (b) There is an overlap, but the overlap increases or amplifies the impact on the overlapping ADLs.

[COMMENT: Too often liberal doctors would simply use the magical term "synergystic effect" of injured body parts to circumvent the CVC and increase PD by adding the impairments per Kite without any detailed discussion. However, the Board notes that using magical words are not enough, the med-legal evaluator must clearly discuss how the various impairments impact upon the ADLs.]

REPORTS FROM UNAVAILABLE AME ARE STILL ADMISSIBLE

In Montes v. Westside Children's Center (April 2024)(52 CWCR 80), the parties utilized Dr. Alan Sanders as an AME. Ten years later additional carriers were joined who objected to the admissibility of Dr. Sanders' reporting because he had become "unavailable" for additional reporting or cross-examination.

In a WCAB Panel Decision, the Board stated that the AME reports were admissible as evidence unless barred by some statute, noted that even outdated reports may still contain valuable information, and the trial judge has discretion as to how much weight should be given to outdated reports with the right to order further development of the record.

[COMMENT: Although the old AME reports were admissible as evidence, the subsequently joined carriers had a right to discovery, including getting current AME/QME reports.]

INDEPENDENT MEDICAL REVIEW: 2023 OVERALL REPORT

On 6/20/2023 the DIR and DWC released its' 2023 report describing the Independent Medical Review (IMR) program activity in 2023.

Highlights from the report included:

a) 31% of requests pertained to pharmaceutical treatment;

b) Opioids comprised 26% of all pharmaceutical requests;

c) UR denials were overturned on average 10.2% of the time, although mental health services were overturned at a higher rate; and

d) The MTUS continues to serve as the primary resource to determine medical necessity.

HEWS NEWS:

HEWS firm is please to announce that associate attorney Brittany M. Poos has returned and handling cases in the greater Inland Empire area (Riverside, San Bernardino, and Pomona). Ms. Poos has 10 years of experience as a work comp defense attorney, and well-known expertise in handling complex lien issues.

HEWS Work Anniversaries in July:

Legal assistant Barbara DeSanctis (5 years) in Calabasas, and Brittany Sloan (1 year) in San Bernardino. We also welcome to the firm our recent legal assistant hires Livni Galvan and Noah Avilas in San Bernardino, along with Kauthar Alaghbar and Jacob Menard in Santa Ana.

Main Contributor: H. Neal Wells IV

Editorial Staff: Lynn P. Peterson

HEW&S OFFICES: COVERING ALL OF CALIFORNIA

San Bernardino (909) 890-0403 (sbr@hmplc.com)
Santa Ana (949) 250-1216 (ana@hmplc.com)
Burbank (818) 265-0940 (cxr@hmplc.com)
Calabasas (818) 348-8366 (cls@hmplc.com)

www.hmplc.com

The above is for informational purposes only, and not intended to constitute legal advice.