California ACOEM Strikes Again!

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Hi All,

http://www.workcompcentral.com/signup/news/a ... tm?

& article=t100z02u1496230915

California, This is an appellate ruling regarding a denial by workers comp

to

pay for chiropractic treatment that was administered to an

injured worker - before the ACOEM guidelines for the

treatment of injured workers came into effect for the state of CA, 1/1/04.

The

chiropractic treatment does not fall within the ACOEM guidelines,

therefore the courts have concluded that the physician will

not get paid.

They would like amicus (friend) letters written to the

courts asking that this decision be reconsidered. Right

now, the issue is, coverage before the implementation of

the guidelines.

But IN REALITY, the bigger issue is that these ACOEM

guidelines were never meant to be used as Gospel for

denying payment or dictating the treatments injured workers

receive.

If you are concerned about how ACOEM writes guidelines that

are friendly to insurers (not just workers comp, as we all know) , then its

physician members are paid to perform IMEs (that are

supported by the ACOEM Guidelines). And then paid even

more as an expert witness, when one has to go into court in

an attempt to collect workers compensation for

injuries....then YOU NEED TO WRITE A LETTER TO THE COURT

TELLING THEM SO. Instructions are below.

Sharon

To all of you who will be adversely affected by the Sierra

Pacific v. WCAB (Chatham) outcome:

As reported on the main page of WCC this morning, Jon

Brissman, Esq., counsel for the respondent, Placerville

Chiropractic and Sports Clinic, in the case of Sierra

Pacific v. WCAB (Chatham), (2006) 140 Cal. App. 4th 1498,

has petitioned the Supreme Court to overturn the opinion of

the Court of Appeal. The Supreme Court Case Number:

S145682. A copy of his petition is attached below.

The owner of Placerville Chiropractic and Sports Clinic,

Mooney, D.C., a member of the CCA, is seeking review

by the Supreme Court by asking the Justices to forbid the

application of ACOEM to be utilized as the yardstick to

later determine the reasonableness of treatment furnished

prior to when ACOEM was published, 12/22/03, or adopted by

SB 228, 1/1/04.

The appellate court issued an opinion allowing ACOEM to be

used after-the-fact to define reasonableness of treatment,

which treatment was provided long before ACOEM was

published or adopted, as the definition of reasonable

treatment.

If the Supreme Court does not reverse the appellate

decision, any treatment provided prior to 1/1/04 pursuant

to the IMC Guidelines, that has not been reimbursed, will

now be legally measured for reasonableness by the stringent

standards of ACOEM.

In short, if a physician provided treatment to an injured

worker in 2003 or earlier, and the physician's lien has not

been resolved, the employer/insurer will be able to

successfully argue at a future lien trial that the

physician does not deserve to be reimbursed, because the

treatment provided is excessive per ACOEM --- even though

ACOEM was not published at the time the treatment was

provided.

This is patently unfair to each and every physician who has

an outstanding workers' compensation accounts receivable

for treatment furnished prior to 1/1/04. If physicians

would like to join those of us who are urging the Supreme

Court to grant review and reverse the outcome in the

appellate court, now is the time to take action.

One does not need to be an attorney to write to the Supreme

Court urging the Justices to grant review and reverse the

appellate court. As an individual who is adversely affected

by the appellate decision, you can, as a 'friend of the

court,' write an amicus curiae letter beseeching the

Justices to grant review.

As examples of how a 'friend of the court' amicus curiae

letter should be written, I am providing attachments for

two sample amicus curiae letters, each written by a non-

attorney. One is titled " Drug Policy Alliance " and the

other is titled " Leadership Council. "

Simply put, the amicus curiae letter should address the

following:

1. INTRODUCTION: Who the author is; how long the author has

been in practice; and, the basis for the authors interest

in the outcome.

2. INTEREST OF THE AMICUS CURIAE: Explain that the author

is a medical provider in the California workers'

compensation system; that the author has accrued a large

accounts receivable for treatment provided prior to when

ACOEM was published or adopted by SB 228; that as a

physician, the author provides treatment consistent with

the treatment guidelines in effect today; and, that to

allow a later adopted guideline, ACOEM, to be the yardstick

by which conduct, in the form of treatment provided many

years ago, is measured for reasonableness is flat-out

unfair, would require the author to be clairvoyant, and

will discourage physicians from treating industrially

injured workers.

3. REASONS WHY REVIEW SHOULD BE GRANTED: In subsections of

this part of the amicus curiae letter, explain how the

decision from the appellate court adversely impacts the

author's past conduct, in the form of treatment previously

provided under the guidelines then in effect, the IMC

treatment guidelines; that the author had no prior notice

that the treatment provided years ago would be measured for

reasonableness in future lien trials by a stringent

guideline yet to be published; that by allowing a new

guideline, ACOEM, to be relied upon as the definition of

reasonable treatment provided prior to when ACOEM was

published or adopted would create transactional instability

not only for the author, but also for all medical providers

treating industrially injured workers; that if the opinion

from the appellate court is not reversed, the author will

cease treating industrially injured workers, which runs

against the grain of long-standing public and social

policy; and, that if the opinion of the appellate court is

not reversed, some unscrupulous medical providers may start

billing injured workers for treatment deemed unreasonable

per ACOEM --- as the appellate decision, at least

implicitly if not explicitly, suggests that this remedy is

available to a medical provider.

4. CONCLUSION: The author of the amicus curiae letter

should concisely and succinctly summarize the reasons

outlined above as grounds for why the Supreme Court should

grant review in order to promote stability in the workers'

compensation system which also advances the fundamental

social and public policy concerns that are the cornerstone

of the Workers' Compensation Act.

If enough amicus curiae letters are received by the Supreme

Court from members of the affected public, it should

increase the odds of the Supreme Court Justices granting

review and reversing the opinion of the appellate court.

This case affects each and every workers' compensation

treating physician's accounts receivable in a draconian

manner --- it eviscerates the amount that can be recovered,

particularly for front-line treaters. Many physicians have

accrued a large accounts receivable worth tens, or hundreds

of thousands of dollars. If the appellate decision is not

reversed, the physician's accounts receivable will probably

be worth less than 10 cents on the dollar.

This case puts the physician's wallet on the line, and if

not reversed, will have the practical result of a

determination that treatment provided in years past, that

although defined as reasonable at the time provided, will

now be determined unreasonable --- thus not the financial

responsibility of the employer/insurer. The physician will

have to write-off tens or perhaps hundreds of thousands of

dollars.

Personally, having closed the door to new injured worker

referrals some 20 months ago, on 1/1/05, combined with the

fact that my in-house attorneys and hearing reps have been

resolving our outstanding liens at a record-breaking pace

for the past two years, I have very few outstanding liens

left to litigate here in California.

My company operates in 37 other States, and my company's

financial exposure to the adverse effects of this case is

minimal. However, I have continually made an effort to

protect the accounts receivable of physicians, and prevent

those physicians, who are not legally sophisticated, from

being taken advantage of by the payor community.

My company, GEMS, filed an amicus curiae brief with the

appellate court as did the California Society of Industrial

Medicine and Surgery (CSIMS), and West Coast Surgery

Centers (WCSC) also filed an amicus curiae brief with the

appellate court. Copies of each amicus curiae brief filed

with the appellate court are attached below.

The aforementioned amicus curiae will be filing amicus

curiae letters with the Supreme Court urging review.

However, the more the Justices of the Supreme Court hear

from the affected public about the adverse and unfair

consequences the appellate court decision will have on

physicians and injured workers who will likely suffer an

increased access-to-care problem, the more likely it is

that the Court will grant review and reverse the appellate

court.

This case affects those physicians who still have

considerable sums left to collect for treatment provided

industrially injured workers prior to 1/1/04. The ball is

in your court. If the Supreme Court does not grant review,

physicians can kiss their workers' compensation accounts

receivable good-bye.

York McGavin

President

Gibraltar Electro Medical Services

23852 Pacific Coast Highway

Suite 323

Malibu, CA 90265

TEL: (800) 229-4367

FAX: (800) 989-4367

Email: ymcgavin@...