RE: GEORGE THE BARTENDER’S DISPATCHES FROM ONLINE HAPPY HOUR – FUTURE MEDICAL, UTILIZATION REVIEW AND REACHING THE END OF NETFLIX

FROM MY BAR AT HOME:

Having exhausted all available programming in the vast depths of Netflix1, I was grateful for a different kind of on-screen experience at my latest virtual happy hour with my work comp pals, fellow defense attorney, Gerry Lane, and prominent applicant’s attorney, Holly Hustler. After each of us fixed our drink of choice (an Old Fashioned for Gerry, a White Claw for Holly, and a Dark ’n’ Stormy for yours truly), the chat turned to how we were managing our cases during the COVID-19 era.2

Although the Workers’ Compensation Appeals Board (WCAB) district offices remain closed for hearings for the time being, the WCAB had recently decided to hear at least some trials via conference call, so it only took a few minutes for Holly to start taunting Gerry about the likely outcome of a trial the two of them had coming up the following week.

The case involved Holly’s client, Martin Barrett, who had been injured while working as a university librarian back in the 1990’s. The case had previously settled by Stipulated Award with open future medical care and it had been closed for twenty years, but Gerry’s client had asked him to re-open the file in order to deal with a treatment dispute raised by the applicant.

Holly was confident. “Sorry, Gerry, but you’ll be paying for my client’s massages forever. It doesn’t matter what your utilization review (UR) says. This time I’ve done the research!” Holly was waving a piece of paper in front of her camera. I was squinting at the screen, trying to figure out what she was talking about when she announced, “Bertrand, baby. Read it and weep.” She’s a friend, but boy can she be smug at times.

The case Holly was referring to was Carolyn Bertrand v. County of Orange, 2014 Cal. Work. Comp. P.D. Lexis 342, a panel decision published on July 28, 2014.3In Bertrand it was determined that the parties had waived the right to use the independent medical review process (IMR) to resolve treatment disputes because the parties had included a stipulation in their settlement agreement stating that future medical care would be determined by the agreed medical examiner (AME) and that the parties would return to the AME to resolve any treatment disputes.

Holly planned to use Bertrand in her own case with Gerry, since the Stipulated Award between Mr. Barrett and the university had stated that future medical care would be provided by defendant “in keeping with the 10/5/99 report of primary treating physician Dr. Boyd.” Dr. Boyd remained the PTP and had recently written some prescriptions for massage therapy, which defendant’s utilization review had not certified as medically necessary, but Holly was taking the position that the dispute was not subject to UR/IMR and that Dr. Boyd’s opinion was all that mattered. “Massages. For. Life!” Holly declared.

Gerry was none too pleased. “It’s not my fault. I would never agree to something like that, but the Stip was done twenty years ago by whoever was the university’s attorney at the time. This was how things were done back then. What am I supposed to do about it?”

If a classic ten-ounce highball glass could talk, mine would have been reassuring Gerry that he had nothing to worry about. “Hey guys, check your email,” I suggested. I sent them each a copy of the recent panel decision in Nancy Archibald v. Spelling Entertainment, 2020 Cal. Work. Comp. P.D. LEXIS 45, filed on January 29, 2020.

In Archibald, the applicant and defendant had settled the case, leaving medical care open, with a stipulation that future treatment would be in keeping with the permanent and stationary report from the primary treating physician (PTP). Applicant argued that this stipulation meant that the PTP, not IMR, would control any treatment disputes. The Workers’ Compensation Judge (WCJ) disagreed. After a Petition for Reconsideration was filed by the applicant, the Appeals Board affirmed the WCJ’s decision in the defendant’s favor.

In its discussion, the panel distinguished the facts in Archibald from those in Bertrand. In both cases, the parties had made an indication that the scope of future medical care was in some way shaped by the findings of one of the doctors in the case. However, in Bertrand the parties had specifically stipulated that they would return to the AME to resolve treatment disputes. In Archibald, there was no explicit agreement about how to handle treatment disputes. Since the parties did not make a special agreement about treatment disputes, the normal rules still applied, and treatment disputes would be governed by the IMR process.

The bad news for Holly (and saving grace for Gerry) was that their case fit the same pattern found in Archibald. The parties’ agreement from twenty years ago to provide treatment “in line with” a doctor’s report was simply too vague to constitute the type of waiver of IMR that had been found in Bertrand. In short, although the COVID-19 has changed many things, words still have meaning!

So, even though Gerry had inherited some sloppy settlement language, his client would be spared from a future of endless massage therapy, at least so long as the IMR process determined that Dr. Boyd’s requests were not medically necessary.

With Gerry’s mood lifted, we turned our attention to the next high-priority topic: whether it is appropriate to make a Dark ’n’ Stormy with Myers’s rum or whether only Gosling’s will do. I look forward to asking George’s opinion on the matter.

DISCLAIMER:

All characters at my home bar are fictional and the storyline is simply a product of my animated imagination.

While Archibald lacks the designation “significant panel decision,” Joe always liked to remind me of one of his favorite portions of the Labor Code, subtitled “Specific Additional Evidence Allowed,” §5703(g) which states in relevant part as follows:

The appeals board may receive as evidence either at or subsequent to a hearing, and use as proof of any fact in dispute, the following matters, in addition to sworn testimony presented in open hearing: … (g) Excerpts from expert testimony received by the appeals board upon similar issues of scientific fact in other cases and the prior decisions of the appeals board upon similar issues. (emphasis added)

He would also draw our attention to California Evidence Code §452(d), which provides that judicial notice may be taken of “Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.”

We are starting to slowly see our lives return to some semblance of “near normal” which is encouraging. Overcoming hardship is never easy, but if we have hope, determination and some good moisturizing hand soap we’ll come out the other side of this soon enough.

We’re still making our own doubles for now. May George guide my hand. Bottoms up, friends.

1 Getting to the end of Netflix isn’t as exciting as one would think. Turns out it is just a clip from a board meeting of Netflix execs after they started producing their own content where one asks, “Hey, what do we think we should put at the end of Netflix?” and another responding, “Like anybody would ever have enough time to stream all of the content and get to the end.” Laughter breaks out. Fade to black.

2 Tis an ol’ maritime tale that the Dark ’n’ Stormy originated from a ginger beer factory in Bermuda that was run by the British Royal Naval Officer’s Club, not too long after World War I. There sailors discovered that a strapping splash of the local Gosling’s Black Seal rum was an excellent complement to ginger beer. As for the name, it is alleged that a sailor enjoying the cocktail, perhaps two to three sheets to the wind, commented that it was, “The color of a cloud only a fool or a dead man would sail under.” But I digress.

3 Joe’s trusty briefcase is on sabbatical at the moment, however we’re happy to send you a copy of Bertrand and Archibald via email request.

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