Procedural or Substantive?

When a new law passes there are always issues concerning whether the law also applies to cases that are pending. If the new law doesn't specifically say it does apply to pending cases, then whether it does depends on whether the provisions are jurisdictional/procedural or substantive.

In general, substantive law prescribes duties and rights, and procedural law concerns the means and methods to apply and enforce those duties and rights.

New legislation may not deprive one of the remedies afforded by the existing cause of action. Thus, a substantive amendment will not apply to a statutory cause that accrued before the amendment’s effective date.

In workers' compensation, substantive law is generally controlled by the date of injury pled or discovered. But in the instance of a lien claimant, for instance, the applicable date may be the date services were provided since a lien claimant has separate status from, though dependent on, the injured worker.

If the law is procedural, then it's another story and the law will apply to an existing dispute.

So it's interesting that a medical billing dispute that existed prior to the passage of California's SB 863 will be heard by the 4th District Court of Appeal to determine if it belongs in Independent Bill Review rather than subject to a trial judge's award.

The parties in CIGA v. WCAB (Elite Surgical Care Centers) will present oral argument to a 4th DCA panel at 9 a.m. on Nov. 12 as to whether the changes made by SB 863 in the resolution of billing disputes apply - i.e. whether such disputes go to IBR or not.

Are those changes procedural, simply changing the means and methods to apply in the resolution of the dispute?

"Hmmm ... procedural or substantive?"

Or does SBR arise to a substantive change that involves the duties and rights of the parties?

Elite Surgical Centers and two other commonly managed ambulatory surgical centers collectively filed several thousand liens based on services they provided to injured workers in the years leading up to the passage of SB 863.

Several of these liens were consolidated in 2009 and a Workers' Compensation Judge issued findings as to the reasonable fee the providers could collect on epidural injections against eight insurance carriers.

The carriers sought reconsideration, which the WCAB denied last October. The carriers then petitioned for judicial review in December, and the 4th DCA granted review of the case in April.

The California Workers' Compensation Institute has filed an amicus brief in support of CIGA and the California Society of Industrial Medicine & Surgery has filed an amicus brief in support of the WCAB.

My prediction is that the 4th DCA will find that the matter is procedural, and will invalidate the WCJ's award, simply based on the fact that the court has an interest in the dispute.

Of course that's no reason to think the court will rule that way. But that's where I'm putting my money.

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In the meantime there are less than 2 weeks to make your nominations for the Comp Laude Awards - categories include injured worker, employer, and all the usual industry positions. Nominations close 10/12, and winners will be announced at the WorkCompCentral Comp Laude Gala on 12/06.