Should a “carve out” be in your future? CAJPA 2012 Patti Williams, ARM, WCCP Risk Manager

The passing of SB 899 in 2004 amended Labor Code section to include Cities as having the ability to carve-out aspects of workers’ compensation claims. Carve-out programs allow labor-management agreements for alternative dispute resolution of workers’ compensation claim issues defined by the agreement. This is a voluntary program enabling public employers to “opt-out” of the State of California workers’ compensation program when there is a dispute in medical opinions. This program utilizes physicians from an agreed upon IME list, rather than Agreed Medical/Qualified Medical Examiners.

When a determination needs to be made regarding compensability of the claim for AOE/COE. The nature and extent of the injury and permanent disability. Workability – work restrictions and duration of TTD. Utilization Review disputes. Second opinions for spinal surgery. Program is for active sworn employees and retirees who claim a presumptive injury within 5 years of retirement.

An ADR program is used to help reduce the amount of time required to resolve a medical dispute with respect to a workers’ compensation claim. This can decrease litigation and improve employee morale. Ensures the employees will receive a prompt evaluation when their claim involves a dispute. This helps both the employer and the injured worker by reducing costs and determining the ability or inability for the claimant to return to work.

The Police Officers Association and the Firefighters Association approached the City Management team and the Human Resources Department/Risk Management regarding the delays as well as other issues their members were having regarding medical treatment and related benefits. Risk Management researched carve-out programs and decided to proceed with the ADR process.

Meetings have been held with union representatives as well as their attorney. The Risk Manager, representatives from TPA and defense attorney present. Discussions regarding the objectives of program as well as everyone’s role and responsibilities took place. Also had discussions regarding the selection process and criteria for the IME physician panel.

Review MOU’s to amend or do a side letter to include the ADR Carve-Out program and process. Unions must provide evidence they are a bona-fide labor organization, must submit Petition for Permission to Negotiate a Section Labor-Management Agreement to the State. Provide contact information for Union groups and City representatives/TPA representatives to the State. DWC website has pamphlets available on how to create a carve-out in California.

Develop IME panel list that is agreeable to Unions, City and/or their representatives. Both parties will be bound by the decision of the IME. Goal is to choose physicians based on their ability to be impartial and maintain compliance with timelines for evaluations and reports. In addition, they must have a good understanding of workers’ compensation process and importance of return to work issues. Need to have enough specialists in each field to have the program work properly. Need to develop contracts for IME physicians to agree with. We will have a special meeting for IME physicians and/or their representative to attend to review their responsibilities. Depending on your Organization’s processes, may need to go to Council to approve any and/or all documents.

IME evaluations are utilized upon written request of dispute resolution. IME’s are rotated within specialties. For example, if there are five orthopedic specialists, you would use them in order. The IME fee schedule is somewhat higher than the OMFS. IME must schedule appointments within 30 days of contact from the Risk Manager, claims examiner or authorized delegate. Reports must be received by claims examiner within 30 days from appointment. If tests are required, they must be completed within 14 days of examination and report will be due 30 days from that date. The IME must write reports that are compliant with AMA guidelines. The IME can only do evaluations, cannot provide medical treatment.

Provide payment to IME physician with 45 days of receipt of billings. Inform concerned parties if an IME will be removed from the panel for any reason, such as breach of contract or upon mutual agreement of both parties. Tracking must be done to ensure the physicians are meeting the requirements of the timeline and are submitting compliant reports. Additional tracking needs to take place to determine the length of TTD vs. RTW.

The employee must provide statement upon request. The employee mu s t provide fully executed medical, employment, financial releases and any other documents reasonably necessary for Agency to resolve employee’s claim when requested. The employee will agree to a deposition when requested. The employee shall be responsible for providing the claims staff with his/her work schedule prior to an appointment being made so that appointments can be made during an employee’s nonworking hours or the first or last hour of his/her workday. The amount of time allotted for hours spent at a physician’s appointment during working hours will be subject to verification and will be allowed accordingly.

Continuing and ongoing communication with all involved parties is necessary for success. Keep union representatives informed on progress of implementation process on a regular basis. Continuing communication with claims examiners is critical to ensure the program is being administered properly.

I hope this has been of some benefit to you. Questions?