ALTERNATIVE DISPUTE RESOLUTION AGREEMENT
BETWEEN CITY OF CHULA VISTA AND
CHULA VISTA POLICE OFFICER’S ASSOCIATION
This Workers ' Compensation Alternative Dispute Resolution Agreement (“Agreement”) is entered into by and between the City of Chula Vista (“City”) and the Chula Vista Police Officer ’s Association (“POA”) (collectively, “parties”) . This Agreement is created pursuant to California Labor Code Section 3201.7(a)(3)(C). The Parties, after meeting and conferring in good faith, hereby agree to the following:
Nothing in this Agreement diminishes the entitlem ent of a covered employee to compensation payments for total or partial permanent disability, total or partial temporary disability, or medical treatment fully paid by the employer as otherwise provided for in Division 4 of the California Labor Code (“Workers’ C ompensation Law”), nor to California Labor Code Section 4850 benefits . Nothing in this Agreement denies to any covered employee or the City the right to represent ation by counsel at all stages during this alternative dispute resolution process.
Article I: Purpose/Joint Labor Management Committee
A. The purpose of the Agreement is to provide Covered Employees, as defined in Article III , paragraph A below , claiming compensable injuries under Workers’ Compensation Law , with an alternative dispute resolution process with the intent of expeditiously resolving disputes.
This purpose will be achieved by utilizing an excl usive list of agreed-upon medical providers (“Independent Medical E valuators” or “IMEs” ) to be the sole and exclusive source of medical evaluations for disputed issues su rrounding covered employees in accordance with California Labor Code Section 3201.7(a)(3)(C).
B. The City and POA agree to form a Joint Labor Management Committee (“JLMC”). This committee will be comprised of two (2)to three (3) City staff members to be determined and designated City in writing to the POA by the Human Resources Director and two (2) to three (3) POA representatives to be determined and designated in writing to the City by the POA President.
The purpose of the JLMC is to develop and maintain a list of the exclusive Independent Medical Examiners, develop policy and procedures of the Alternative Dispute Resolution program; to review implementation and the progress of the program and address any issues at time frames agreed to by the committee; and to ensure that the program terms and conditions are administered in harmony with this Agreement. Additionally, the JLMC shall quarterly and prior to the termination of this Agreement review claims data for claims administered prior to the implementation of DocuSign Envelope ID: 90B12AD7-B634-4508-99CB-3DE21C03E87A R-2020-262ACN #2020-143
this Agreement with claims data for claims administered under the provisions of this Agreement to examine the effectiveness of this program.
Article II: Term of Agreement
The parties understand that this Agreement governs a pilot pr ogram and that this Agreement shall become effective on or after January 1, 2021 after it is approved by the Chula Vista City Council, executed by the parties, submitted to the Administrative Director (“Director”) of the St ate of Ca lifornia, Department of Industrial Relations, Division of Workers’ Compensation , in accordance with Title 8, California Code of Regulations, Section 10202(d), and accepted by the Director as evidenced by the Director’s letter to th e partie s indica ting appr oval of the Agreemen t. This Agreement shall remain in effect for one year from the date of the Director ’s letter of approval to the pa rties. Any claim arising from an industrial injury that is cover ed by this Agreement and sustained before the termination of this Agreement shall continue to be covered by the terms of this Agreement, until a ll medical issues r elated to the pe nding claim are resolved.
The parties reserve the right to terminate this A greement during the term of this Agreement at any time for good cause, by mut ual agreement , or by ac t of the Legislature. The terminating party must give at least 30 calendar days written notice to the other party of the intent to terminate , including an e xplanation of the good cause .
Upon termination of this Agreement, the parties shall become fully subject to the provisions of the applicable California Labor Code provisions.
Article III: Scope of Agreement
A. This Agreement applies only to injuries, as de fined by Workers’ Compensation Law, claimed by the following (referred to herein collectively as “Covered Employees”): (1) active City employees who represented by the POA bargaining group and (2) active City employees whose classification is represented by the POA, who have filed a claim, and are in the ADR program, but subsequently retire before the claim is resolved.
B. Active employees with an existing claim filed prior to the effective date of this agreement (pre-existing claim) that have not already had a medical-legal evaluation under the State’s AME/QME system may reque st to resolve their claim under the provisions of this agreemen t. Suc h requests sho uld be made in writing to the City’s third-party claims administrator (TPA). The decision to accept a pre -existing claim into the alternative dispute resolution program will lie with both the City and the POA. If a request is made to utilize the alternat ive dispute resolution program for a pre -existing claim and that request is approved, all future disputes on said claim must be resolved according to the provisions of this agreement. Use of the alternative dispute reso lution DocuSign Envelope ID: 90B12AD7-B634-4508-99CB-3DE21C03E87A
program may not be used to reliti gate previously resolved or adjudicated issues. The scope of this ag reement does not apply to retirees tha t have a futur e medical di spute that is outside the five-year statute of limitations or Labor Code Section §5804.
C. Injuries occurring and claims filed after terminati on of this Agreement a re not covered by this Agreement.
D. This Agreement is restric ted to 1) establishing an exclusive list of IMEs to be used for medical dispute reso lution of covered employees, and 2) establishing a process for informal legal discovery in accordance with Artic le V. For purposes of this Agreement, a “claimed injury” is one for which either a Workers’ Compensation Claim Form DWC-1 or an Application for Adjudication of Claim has been filed with the Workers’ Compensation Appeals Board (“WCAB”).
Article IV: Expedited Independent Medical Evaluator Process A. This Agreement does not constitute a M edical Pro vider Network (“MPN”). However, all covered employees must utilize the City’s MPN, if applicable, for treatment purposes during the time the City maintains and ut ilizes the MPN. The MPN is governed by California Labor Code Section 4616 et seq and the City’s TPA will provide authorization for all initial medical treatment consultations and medical treatment consistent with the Labor Code. Physicians who act as a covered employee’s treating physician or have provided treatment to th e covered employee shall not act as the IME in the covered employee’s claim. Pre-designation of a physician must comply with the requirements set forth in California Labor Code Section 4600(d)(1)-(2)(C).
B. All covered employees with a disputed medical is sue as describ ed in Article IV, paragraph D below must be evaluated by an approved physician from the exclusive list of IMEs. Attached hereto as Exhibit A is the exclusive list of IME s agreed upon by the parties. Should the covered employee claim injuries requiring more than one IME specialist, the covered employee shall be provided an IME appointment in each area of specialty, if necessary. If the IME requires the opinion of an additional sub- specialist, the IME shall advise the claims examiner, who shall then select an approved medical prov ider in the requested specialty from the ag reed-upon IME list . The IME may not refer th e covered employee to the covered employee’s treating physician f or this purpose. The consulting sub-specialist’s charges are subject to the Official Medical Fee Schedule promulgated by the California Division of Workers’ Compensation administrative director.
C. The exclusive list of IMEs shall include the IMEs’ respective specialties as agreed upon by the parties. If a n IME for a special ty is not listed on the aforementioned list, the JLMC shall identify an IME for said specialty by mutual agreement.
D. An IME shall be used for all medical disputes that arise in connection with a workers’ compens ation claim including , but not limited to , determination of DocuSign Envelope ID: 90B12AD7-B634-4508-99CB-3DE21C03E87A
causation, the nature and extent of an injury, a Rolda analysis (if applicable), the nature and extent of permanent disability and apportionment, work restrictions, ability to return to work (including transitional duty ), resolution of all disputes arising from utilization review (UR), and future medical care, including the need for spinal surgery.
The parties agree that the covered employee shall use the originally chosen IME for all subsequent disputes and injuries claimed arising under this Agreement. I n the event that said IME is no longer available, the parties shall utilize the next specialist on the list pursuant to Article IV, paragraph I(5) below.
E. The I ME process described above will be triggered when either party provides the other written notice of an objection in connection with any issues set forth in Article IV , paragraph D above. A delay letter to the claim gives the covered employee the basis to file a wr itten objec tion thereby triggering the IME process. A delay letter without objection, will not automatically trigger the IME process. Objections from the City shall be sent to the covered employee with a copy to the covered employee’s leg al representative , if represented, and if the covered employee /legal representative gives notice to the City that the covered employee is represented .
Objections from the covered employee or covered employee’s legal representative shall be sent to the covered employee’s assigned claims examiner with a copy to the City and City’s legal representative, if applicable.
F. Objections shall be sent within 30 c alendar days of receipt of a medical report addressing any of the issues set forth above . Delayed decisions based on leg al issues shall not tri gger the IME process. A subsequent acceptance of the clai m and/or resolution of the disputed issue may eliminate the need for completion of the IME process set forth in this Agreement.
G. The exclusive list of IMEs shall serve as the exclus ive source o f medical evaluations for all disputed medical issues aris ing from a claimed injury, unless otherwise agreed to by the parties in writing.
H. The parties hereby agree that from time to time the exclusive list of IMEs may be amende d. For eit her party to propose adding an IME to the exclus ive list of IMEs, the party must provide notice, in writing, to the other party of its request to add a physician to the list. The parties must mutually agree in writing to the addition of physicians to the IME list. A physician may only be deleted from the exclusive list of IMEs if that physician breaches the terms and conditions of his/her contract with the City or by written mutual agreement of the parties. The exclusive list of IMEs shall be reviewed quarterly, or a s otherwise agreed upon, by both par ties for proposed additions and/or deletions of IMEs. Any physician proposed for addition o r deletion after the quarterly review period will be reviewed at the next scheduled quar terly review period.
I. Appointments
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1. The City’s Third-Party Administrator (“TPA”) shall schedule any appointment(s) between the IME and covered employe e and provide notice of the appointment(s) to the covered employee within 10 business days after the receipt of the objection and when all relevant records have been received by the TPA. The notice of the a ppointment shall include the location, date, and time of the appointment.
2. The covered emplo yee shall be resp onsible for providing the City’s TPA with his/her work schedule prior to an a ppointment being made , so that appointments can be made , if possib le, during a covered emplo yee’s non- working hours.
3. Compensation for attending medical appointments under thi s Agreement shall be consistent with California Labor Code requirements.
4. Mileage reimbursement to covered employee s shall be in accordance with California Labor Code Section 4600(e)(2) unless transportation is provided by the City.
5. For purposes of appointments, the City’s TPA shall select the IME(s) by starting with the fi rst name listed on the exclusive list of IMEs within the appropriate specialty, and continui ng down the list, in o rder, until the list is exhausted, at which time the City’s TPA will resume using the first name on the list. Said list of IMEs shall be organ ized in alphabetical order by the IMEs’ last names. IMEs that cann ot meet the appointment ti meframes designated in the Physician Contract shall be bypassed for th e next available IME on the l ist. The TPA will maintain a log of the number of disputed claims , the type of disputes, the type of body part claimed, the time fr ames for setting IME appointments and receiving the IME report and the dispute outcomes.
6. The IME shall submit the medical reports 30 calendar days following examination of the covered emp loyee, pursuant to the terms of the IME’s contract, unless a longer period of time is agreed to by the parties.
J. The City is not liable for the cost of any medical examination used to resolve disputes governed by this Agreement where said examination i s furnished by a medical provider that is not authorized by this A greement. Medical evaluat ions shall not be obta ined outside of this Agreement for disputes co vered by this Agreement, notwithstanding California Labor Code Section 4605.
K. Both parties sha ll be bound by the opinions and recommendations of the IME selected in accordance with the terms of this Agreement, subject to legal challenges brought by the parties, before the WCAB.
L. Either party who receives records prepared or maintained by the trea ting physician(s), or records, either medical or nonmedical, tha t are relevant to the determination of the medic al issue , shall serve those records on the other party immediately upon recei pt. If a party objects to the provision of any nonmedical DocuSign Envelope ID: 90B12AD7-B634-4508-99CB-3DE21C03E87A
record(s) to the IME , the party shall object within 10 calendar days of the service of record(s) to the other party . Obj ecting to the provision of nonmedical records ma y result in the denial of the claim on the basis that the IME did not have complete and accurate information. There shall be no objection to the provision of m edical records to the IME, subject to the provisions of the California Labor Code.
M. The City’s TPA shall provide to the IME records prepared or maintained by the covered employee ’s treating physician(s) and medical and nonmedical records relevant to the determination of the medical issue(s). The City’s TPA shall prepare a list of all documents pr ovided to t he IME and shall serve a copy of the list on the covered employee and/or on his/her legal or other representative.
N. All communications with the IME shall be in writing and s hall be served on the opposing party. This provi sion does not apply to routine discussions between the covered em ployee and the IME during the examination but may be reported in the IME’s report.
O. Ex parte commun ication wit h the IME is prohibited. If a party or their legal representative communicates with the IM E in violati on of paragraph N and/or O of Article IV , the aggrieved party may elect to terminate the me dical evaluation and seek a new evaluation from the next IME c hosen from t he exclusive list of IMEs pursuant to Article IV, paragraph I(5) above. If a n ew examinati on is required, the party making the communication prohibited herein shall be liable for th e cost of the initial medical evaluation.
P. If either party disputes a medical finding of the IME, they shall notify the other party of this dispute by way of written objection within 14 calendar days of actual receipt of the IME’s report. All disputes of this nature shall be resolved either by way of supplemental interrogatory and report or by way of deposition.
Q. If additional records are discovered either prior to the IME report or after the IME report is sent to the parties, the following procedures will be followed, subject to objection as set forth in Article IV, Paragraph L above: (1) if discovered prior to the IME report being sent to the parties, such records will be provided to the IME and the IME report will consider the records as part of the report; or (2) if discovered after the IME report is sent to the parties, such records will be provided to the IME doctor and a supplemental report will be issued with the records being considered.
Article V: Discovery
A. Covered employees will cooperate and provide the City’s TPA with fully executed medical, empl oyment and concurrent employment releases, disclosure statements, and any other documents and information reasonably necessary for the City to resolve the covered employee’s claim, when requeste d, subject to the limitations set forth in the CCP and Labor Code. If the covered employee fails to return the executed releases and it is determined that the medical information is not sufficient for the IME to DocuSign Envelope ID: 90B12AD7-B634-4508-99CB-3DE21C03E87A
provide a comprehensive evaluation, the parties shall meet to resolve the issue(s) within 14 calendar days prior to setting a medical evaluation. This Article does not supplant or diminish the parties’ r ights to pursue or contest discovery issues pursuant to the remedies provided in the California Labor Code or by the WCAB.
B. This Agreement does not preclu de a f ormal deposition of a covered employee or IME when necessary pursuant to the right of discovery in accordance with applicable provisions of law . The need for a formal deposition may delay the scheduling of an appointment with an IME until the deposit ion ha s been completed .
Attorney’s fees for depositions of cover ed employees shall be paid at a rate consistent with California Labor Code Section 5710. This rate of reimbursement for attorney’s fees for depositions of covered employees is subject to an an nual r eview to determi ne if adjustments to said rate of reimbursement should be made. There shall be no attorney’s fees for depositions of IMEs or other physicians. The current rate will be $375/ hour.
Article VII: General Provisions
A. This Agreement const itutes the entire unde rstanding of the parties and supersedes all other agreemen ts, or al or w ritten, with respect to the subject matter in this Agreement.
B. This Agreement shall be governed and construe d pursuant to the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the City of Chula Vista, State of California, or any other appropriate court in such City.
C. This Agreement, includ ing al l attachments an d exhibits, shall not be amended, nor any provisions waive d, exc ept in writing si gned by the parties which expressly refers to this Agreement.
D. If any portion of this Agreement is found to be unenforceable or illegal the remaining portions shall remain in full force and effect.
E. This Agreement may be executed in counterparts.
F. Notice required under this Agreement shall be provided to the parties as follows:
CITY: Courtney Chase
Director of Human Resources/Risk Management
City of Chula Vista
POA: John A. Ferrone, Esq.
Adams, Ferrone & Ferrone
DocuSign Envelope ID: 90B12AD7-B634-4508-99CB-3DE21C03E87A
Executed at San Diego, California.
CITY OF CHULA VISTA:
By: __
Date: ______________________________________
CHULA VISTA POLICE OFFICER’S ASSOCIATION:
By: __
Date: ______________________________________
APPROVED AS TO FORM:
By: __
City Counsel
Date: ______________________________________
Courtney Chase, Director of Human Resources/Risk Management David Martinez
Mary Casillas Salas, Mayor
DocuSign Envelope ID: 90B12AD7-B634-4508-99CB-3DE21C03E87A 12/7/2020
12/7/2020
12/7/2020