I think that Administrative Rule §10125 deserves such a second look. This is the section which deals with the $16,000.00 cap on rehabilitation benefits. This section spells out what must occur before the cap applies.

The first part of the section requires that the applicant has received notice of his potential eligibility of benefits in writing. Section (b) requires that, “The employee has received notice in writing that confirms the lack of alternate or modified work with the employer...” Because the employee must “receive” the notice, it is highly recommended that the notice be sent by way of certified mail.

Note that this section means that before any monies can be applied against the $16,000.00 cap, even if the employee has received the Notice of Potential Eligibly of Benefits, even if the employee has been receiving VRMA payments, benefits do not technically apply towards the cap until there has been a notification by the employer, in writing, that alternate or modified work does not exist. Presumably, this is not applicable where you do have alternate or modified work. Presumably, the issue regarding the $16,000.00 cap becomes moot.

The claims administrator is then required to submit a copy of the acceptance or rejection of the re-employment to the rehabilitation unit within thirty days of the acceptance or rejection. The requirement for a DWC Form RU-94 applies even where a written plan or approval from the rehabilitation unit is not needed.

Notification of modified or alternate job is to be sent out along with the Notice of Potential Eligibility of Benefits within ten days of receipt of a physician’s report or knowledge of a physicians’ opinion indicating that an employee is medically eligible for vocational rehabilation (or if prior notice has not been sent, the notice is to be sent within ten days after the employee has been totally temporarily disabled for an aggregate 365 days). In the event that additional investigation into the availability of alternate or modified work is required, a final notice regarding the availability of modified or alternate work is to be sent within thirty days. This time limit may be extended by agreement of the parties.

The question arises what happens if a notification of modified or alternate work is untimely. Certainly such a failure does not preclude the parties by agreement to proceed with modified or alternate work. This is specifically authorized in Labor Code §4635(e). It is unclear whether an employee can reject an untimely offer from his employer for modified or alternate work and still request other rehabilitation benefits. The Labor Code section dealing with this is §4644(a)(5) and (6) when the employer offers modified or alternate work, “...In the form and manner prescribed by the Administrative Director...” Arguably, not only must the offer be by way of RU-94, but it also must be timely. However, I believe this places form over substance.

Thermogram’s Value or Lack Thereof

pplicant Rita Banks sustained a work- related injury to her back on March 6, 1992. She was treated by Dr. Roback on August 18, 1992. Dr. Roback performed a physical examination which included extensive diagnostic testing. Bio-Thermology performed a thermogram. The Center for Occupational Sports Testing provided Arcon testing.

Lien claimants argued that the WCJ erred by disallowing the charge for the thermogram performed by Bio-Thermology. The essence of lien claimants’ argument was that the 1984 Medical Advisory Committee’s opinion on thermography should have been used to allow the charges. The WCJ pointed out, however, that the 1984 opinion was not controlling since the Industrial Medical Council, created in 1990, adopted a different position on thermography in 1994. She determined that Dr. Roback’s use of the thermogram did not fit into the 1994 guidelines, which stated that thermography “is an adjunct diagnostic tool for nerve root injuries with radicular presentation where the patient is unable to undergo an EMG.” WCJ Udkovich pointed out that applicant did have an EMG on 9/23/93, making a thermogram unnecessary and unreasonable under the 1994 guidelines.

In addition, the WCJ determined that the thermogram was not reasonable and necessary in conjunction with applicant’s treatment. Just eleven days before receiving the thermogram, applicant had an MRI, which provided Dr. Roback with the same information as that provided by the thermogram. The WCJ concluded that, in view of the MRI study, the thermogram was not needed.

Regarding the Arcon testing, the WCJ used the 1993 Official Medical Fee Schedule as a guide. The lien claimant had used the Miscellaneous Code 95999 in the 1987 Schedule which described Arcon testing as an “unlisted neuromuscular diagnostic procedure.”

The WCJ refused to impose any penalties or interest. She also refused to award on a med-legal basis. The WCJ noted that Dr. Roback billed an excessive amount for his services, inappropriately labeled his billing as medical-legal, and confused his billing by labelling them as medical-legal in 1992 and 1993 and comprehensive evaluations in 1995. In the initial itemized statement of October 12, 1992, Dr. Roback billed $1,000.00 for a “special ortho med-legal” occurring on August 18, 1992. In a subsequent itemized statement, dated April 7, 1993, Dr. Roback billed $1,000.00 for another “special ortho med-legal” occurring on February 20, 1993. The WCJ noted that Dr. Roback was never requested by applicant’s counsel to do a medical-legal evaluation. The WCJ invoked equity in awarding Dr. Roback for the treatment he provided for applicant’s back injury. However, since she invoked equity in awarding any sums to Dr. Roback, she felt that the imposition of penalties and interest was inappropriate.

A Petition for Reconsideration and a Writ of Review were denied.

Michael Dr. Roback, et al., v. WCAB, 61 CCC 413

How Far Can an Applicant’s Attorney Go to Discover Penalties

edical treatment penalties issues are all the rage these days with applicant’s attorneys. And why not? Imagine boosting the value of a case by an easy 10% on any species of benefit simply by uncovering an unexplained delay in benefits. The penalties can even be compounded when successive demands for benefits are ignored, even if self-imposed penalties are paid and the benefits are ultimately provided, although the case so holding is currently on appeal. Service Systems Corporation (1996) 61 CCC 1090. See November 1996 Comp Digest “F.Y.I.”, P.2.

However, when it comes to medical treatment, case law generally provides that in order for the applicant to recover penalties for delay of authorization of medical treatment or payment of medical bills, the applicant must have suffered some harm or detriment. Richard Waymire v. Workers’ Compensation Appeals Board (1995) 60 CCC 912. In the Waymire case, the Court pointed out that penalties are not imposed for late payment of medical bills unless the late payment prevented the applicant from receiving treatment on a timely basis. Currently, the chance that the applicant will actually be prevented from receiving treatment if authorization is withheld are greater than they were previously. Medical providers are less and less willing to provide services on a lien basis. If an adjuster ignores a request for treatment in a non- AOE/COE case, there is a very real chance the applicant will not receive the treatment. This is why, in a non-AOE/COE case, the adjuster must promptly respond to requests for authorization of treatment. If the particular type of treatment appears out-of-line under the circumstances, the codes must be followed for objection to the treater’s opinion, including the panel QME process for non-represented applicants, and the proposal for an AME prior to obtaining a QME evaluation for represented applicants. Labor Code Sections 4061 and 4062. A medical opinion must be promptly sought to determine whether the request for treatment is appropriate or not.

On the other hand, where the applicant has not incurred any detriment whatsoever from a delay in authorizing medical treatment or paying medical bills, the applicant’s counsel may not simply dig through an adjuster’s file to determine whether there were any delays in paying medical bills or providing benefits. A request to review the adjuster’s files for that purpose was denied in Diane Suter v. Applied Research Laboratories, Case No. VNO 0113302 (12/16/96). The defendants requested that the applicant’s attorney submit a settlement demand to C&R the future medical component of the case. In response, the applicant’s attorney demanded to review years of adjuster files showing the dates bills or requests for treatment and other benefits were received by the carrier, and the dates the carrier made payments or provided treatment. Citing the Waymire case, the defendants argued that if the applicant had been harmed by a delay in providing medical treatment or other benefits, the applicant’s attorney would be able to outline bona fide issues rather than submitting a request to examine the files to determine whether there even was a delay. Judge Charles Glasman stated that, “If there has been delay in paying doctors it would be immaterial to applicant (not to the doctors) so long as treatment was timely provided. Applicant knows if treatment was delayed, whether or not unreasonably.” The applicant’s motion for a discovery order for the production of five years of billing payment records was denied. Suter v. Applied Research Laboratories, Case No. VNO 0113302 (12/16/96)