Happy Independence Day!

July 4th, 2015 No comments

Hello dear readers!  Your humble blogger sends you his greetings this 4th of July!  Let’s celebrate by visiting our favorite British pubs and ordering the Benedict Arnold (ironically of course), and casually reminding our English friends “you’re not the boss of me!”

Additionally, dear readers, I would take this opportunity to caution all employers out there to be particularly careful with fireworks.  As Gwendelyn Robinowitz, former assistant clerk and sole survivor of the 2008 “Human Fireworks” display put on by the City of Arthur’s Plot, CA, would tell you, fireworks and employees don’t mix – let’s leave it to the professionals and enjoy the show.

Have a safe and happy 4th of July, dear readers – your humble blogger will be faithfully here.

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WC Fraud w/ Foot Injury Caught Hiking; Pleads No Contest

July 1st, 2015 No comments

Alright dear readers – here we are, puffing right along to the end of the week.

The 9th Circuit has lifting the injunction against collecting lien activation, meaning that we might soon have a total wipe-out of any liens from before January 1, 2013 that have not yet paid their activation fee (we’ll see how the DWC decides to handle that one).

We also now have the benefits rates for 2016 – TTD will be paid at a maximum of $1,128.43, and a minimum of $169.26, up from $1,103.29 max and $165.49 minimum in 2015.

And, on top of all that, we have yet another instance of cartoon-level insurance fraud misconduct succesfully prosecuted by a district attorney.

The Sacramento District Attorney has announced that (former) California Department of Corrections and Rehabilitation Officer Alan Lemke, has plead no contest to felony workers’ compensation fraud.  Mr. Lemke claimed to have sustained a workers’ compensation injury to his foot, but he then engaged in a 50-mile-hike shortly (3 weeks) after being injured at work.

It appears Mr. Lemke took video of his adventures and activities, which law enforcement found following a search of Mr. Lemke’s home (I wonder, dear readers, what the investigators provided as a good faith reason for thinking incriminating evidence would be found).

Mr. Lemke is to be placed on probation and serve 150 days in the county jail, which will possibly go through the work furlough program.  Restitution is to be paid to SCIF in the amount of at least $33,262.56.

And, there you have it folks – justice is served, and a stern warning is sent to all would-be workers’ comp frauds!  Right? Stop laughing!

Your humble blogger tips his hat to the Sacramento District Attorney for prosecuting this case and protecting the interests of an employer, even if the employer happens to be another state actor.  At the same time, however, your humble blogger submits that these things don’t happen often enough – private-sector employers pay enough into the workers’ comp system and law enforcement that we should be seeing more and more of these cases.  Instead… well… ask your favorite defense attorneys how easy it is to get a prosecution going.  To be fair, this varies from county to county, with some offices more concerned about workers’ comp fraud than others.

In other words, your humble blogger applauds but offers a stern demand of encore!

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WCAB: Future Medical of Any Kind Entitles Applicant to Change PTPs

June 29th, 2015 No comments

Hello, dear readers!  Welcome back from your weekend!  Your humble blogger brings you yet another panel decision touching on the topic of… you guessed it! Utilization Review!

The case is that of Samaras v. Deluxe Laboratories (that’s pronounced “lab-or-a-tories”… or at least it should be).  Applicant sustained an admitted injury to his neck and back in 2008, and claimed several additional body parts as well.  In 2009, he was declared permanent and stationary by his then-primary-treating physician, but then selected a new PTP in 2014 (with the guidance of counsel).

When the new PTP requested authorization for treatment, defendant reasoned that there can’t be a change in PTPs after there has been a discharge.  A new PTP can only be designated after a PQME has declared that there is a need for further medical treatment.  The WCJ adopted this reasoning (authority to this effect and commentary on the law on this was discussed previously on this humblest of blogs).

The discharge in the Samaras case was based on the original PTP’s finding that applicant was discharged from “active care.”  However, in reversing the WCJ’s reliance on such a discharge to confine further litigation to the panel process, the WCAB noted a distinction between a total discharge and the Samaras discharge, wherein the P&S report provided for oral anti-inflammatory or non-narcotic analgesic medications.

Based on the WCAB’s reasoning in the Samaras case, the provision of ANY future medical care, even maintenance care – even Tylenol, applicant would be entitled to change primary treating physicians instead of using the panel system.  California Code of Regulations 9785 defines “released from care” as a “determination by the [PTP] that the employee’s condition has reached a permanent and stationary status with no need for continuing or future medical treatment.”   Furthermore, “continuing medical treatment” is defined as “treatment that is reasonably required to cure or relieve the employee from the effects of the injury.”

So, if the doctor determines that applicant needs breath-mints or Advil, applicant can continue to change treating physicians, and so possibly overturn his or her discharge.  And, so, if applicant can change PTPs, then the new PTP can request authorization for treatment, which defendant then must process through Utilization Review.

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Split WCAB: Untimely IMR Invalid

June 26th, 2015 No comments

Hello, dear readers!

Friday is upon us – the weekend looms just around the corner, and, once more, the resources of the WCAB are deployed to address disputes over UR and IMR.

Today I report to you the case of Saunders v. Loma Linda University Medical Group.  Therein, the defendant declined to authorize medical treatment in the form of pool therapy (think swimming, not billiards).  UR timely denied the request for authorization, but the injured worker challenged the IMR decision, arguing that, under Labor Code section 4610.6(d), the IMR decision is invalid.

Section 4610.6(d) provides that IMR must be completed “within 30 days of the receipt of the request for review and supporting documentation…” In the Saunders case, the IMR decision reflects a receipt date of January 29, 2014, and a determination date of June 26, 2014.

The commissioners held that as section 4610.6(d) provides for a 30-day response by the IMR reviewers, and section 9792.10.5(a)(1) provides 15 days for the administrator to provide additional information, resulting in a 45-day-window for IMR to provide a response.  In this case, as IMR’s turn-around time was closer to five months, thereby returning jurisdiction to the WCJ to determine, on the merits of the situation, whether the medical treatment should be allowed.

Citing Dubon II, the commissioners ultimately held that “[a]s with an untimely UR, the issue of timeliness of an IMR determination is a legal dispute that is within the jurisdiction of the WCAB.”  The majority ultimately ordered the matter returned to the WCJ for a determination on whether (1) IMR was timely performed; and (2) if not, whether applicant should be entitled to treatment.

Commissioner Zalewski, however, dissented.  Taking the position that the legislature intended for IMR and UR to be the sole venue for resolution of medical treatment disputes, commissioners Zalewski would have let the IMR decision stand.  Labor Code section 4610.6 provides the grounds upon which an IMR decision can be challenged, and untimeliness is not one of the reasons listed. Furthermore, commissioner Zalewski would have relied on Labor Code section 4610.6(i) “[i]n no event shall a workers’ compensation administrative law judge, the appeals board, or any higher court make a determination of medical necessity contrary to the determination of the independent medical review organization.”

Unsurprisingly, your humble blogger agrees with Commissioner Zalewski’s position: the purpose of SB-863 in this regard was to confine, as much as possible, medical treatment determinations to medical professionals – M.D.s and not J.D.s.

Furthermore, unlike with an untimely UR, a physician (the underlying UR physician) has already reviewed the request for authorization and determined to deny authorization in full or in part.

In a case such as this, if the WCJ or the WCAB decides that IMR is untimely, and the WCAB has jurisdiction to review and decide the issue of medical necessity, it would have to overturn the opinions of a doctor – the exact result the legislature sought to avoid by confining these issues to the UR – IMR process.

Now, your humble blogger gets it – while IMR proverbially fiddles, the injured worker proverbially burns.  But, as discussed above, this is an appeal from a prior timely determination – UR.

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Off-Duty Slip/Fall On Trail Ruled Non-Industrial

June 17th, 2015 No comments

Are police officers ever “off duty”?  In the case of Simon v. City of Vacaville, a split panel held “yes.”  Officer Simon, of the Vacaville PD, enjoyed the benefit of an “individual fitness plan” with his employer, which provided workers’ compensation coverage while running, jogging and walking, so long as these activities were performed on a sidewalk, in a city park, on a treadmill, or on an athletic field.

While off duty, applicant was walking with his wife in what he thought was Pena Adobe Park, but then followed a trail up until he slipped and fell, tumbling down 60 feet.  The fall resulted in a shattered right shoulder, four broken ribs, and a punctured lung.  Not exactly a “paper cut.

The issue of AOE/COE was brought to trial, and one of the main points of contention was whether the trail where the injury occurred was considered a “city park” and thus part of the individual fitness plan.  Applicant also had a back-up argument in play: even if this injury did not occur in a “city park,” as applicant is required to stay physically fit for his job, hiking should be covered as industrial even though there’s no specific coverage under the fitness plan.

Initially, the WCJ relied on the Court of Appeal’s opinion in the case of Ezzy v. WCAB (1983) 48 CCC 611, which held that if the injured worker subjectively believed the activity to be part of his duties and responsibilities, and this belief was reasonable, coverage should be extended.  He held that the injury should be covered as the activity does not fall into a specific exclusion of the plan (the plan banned off-road running, but this was a walk).

However, following defendant’s petition for reconsideration, the WCJ was persuaded by the subsequent authority, namely the case of Young, previously discussed on this blog.  The WCJ recommended that reconsideration be granted.

The split panel did just that – the majority held that Labor Code section 3600(a)(9) specifically excludes “voluntary participation in any off-duty recreational, social, or athletic activity not constituting part of the employee’s work-related duties, except where these activities are a reasonable expectancy of, or are expressly or impliedly required by, the employment.”

In this case, there was a fitness plan that specifically listed various physical activities which the employer considered to be part of the off-duty physical fitness plan.  The commissioners, as the WCJ, found that hiking on a trail would fall into such an exclusion, especially in light of the fact that the employer had outlined the sort of physical activities that would be expected in “off-duty” conditions to maintain physical fitness.

The dissent, however, would have found the injury compensable, assigning considerable weight to the fact that applicant started out his walk in a park, which was covered as part of the fitness plan, but ended up on a trail outside of the city park.  His subjective belief that he was still in the city park should have been controlling, the dissent reasoned.

Most employers are not law enforcement organizations – most are privately owned entities in various industries offering various services.  How can the reasoning in this decision help guide us to minimize exposure for workers’ compensation claims?  Often, the off-duty recreational activity issue rears its ugly head when employees engage in sports with other employees – pick-up basketball games, softball leagues in which various members of the same industry compete, etc.  Usually, the direct supervisor encourages employees to participate without much regard to the effect such participation would have upon workers’ compensation exposure (“It’s entirely voluntary, they don’t HAVE TO play monkey knife fight if they don’t want…”)

Perhaps this case can serve as a reminder for employers to clearly define what sort of off-the-clock activities are allowed or encouraged for employees, and which kind are not.  This may also serve as an opportunity to reminder supervisors and managers to confine encouragement to activities expressly approved by the employer – weight-lifting for security personnel might be good, but sky-diving might bear risk and expense which quickly outpaces its usefulness in serving as a night-club bouncer.  Baseball games are fun, of course, but 10/10 employers would rather keep their experience modification down.

Cheer up, dear readers, the best is still ahead!

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WCAB Moving Closer to Electronic Panel Requests; Proposed Regs posted

June 15th, 2015 No comments

Hello dear readers!

Your humble blogger humbly returns to your inbox, and brings you news of what he anticipates will be more confusion and litigation at the Board.

Now, ask any WCJ what his or her favorite litigation topic is, what he or she feels is the very best use of judicial resources, what, ultimately, is the most fundamental issue touching on justice, due process, and the reason that each of them became a WCJ, let alone an attorney in the first place, and they’ll all tell you: panel disputes!

Now, in case the sarcasm didn’t come across in the preceding paragraph, panel disputes are not a favorite topic at the Board, and the frequency with which the subject is adjudicated far outpaces its welcome as a subject.  Never the less, it is of vital importance: the specialty, which often seems an arbitrary determination, often determines the most vital issues: should the PTP’s medical discharge stand, or does the injured worker need more medical treatment? (entitling him or her to a change in PTPs); is there permanent disability and how much? Should any of the permanent impairment be apportioned to non-industrial or other-industrial causes?

Submitted for the review of the community, we have proposed regulations.  Among the proposed changes for unrepresented cases, parties submitting panel requests would have to provide the notice of denial or a letter stating the need for an examination to determine compensability; and, if the requesting party is the claims administrator (and not the injured worker), the request shall include a copy of the written objection indicating the identity of the PTP, the date of the PTP’s report that is the subject of the objection, and a description of the dispute to be resolved.

From the looks of it, unrepresented injured workers could just submit a panel request without any additional information.

Then, folks, it gets interesting – represented cases.

Starting October 1, 2015, any request for an initial panel, for all cases with dates of injury after 1/1/05, “shall be submitted electronically utilizing the [DWC’s] internet site at www.dwc.ca.gov.”

Among the information to be submitted online, the requesting party shall provide all the information on the current form (presumably we’ll have an online form to fill out) and must scan and upload supporting documentation: exam requests or denial letters under 4060; or written objections providing the name of the PTP, date of the report, and subject of the objection.

It appears that a panel will be generated automatically, which the requesting party must then serve on the other side.  “[a]fter issuance of a panel, any subsequent requests on the same claim whether made on the same day or not, is a duplicate request.”  As expected, these changes nullify section 31.1 (panel selection disputes), changing the language to reflect that all disputes are to be resolved by the WCJ.

If these regulations are enacted as proposed, what does that mean for us.

First off, the defense attorneys need to get up to speed on the tech.  Your humble blogger has been an e-filer and has had an (almost) paperless office from the get-go, and highly recommends it as an approach.  This also means that any advantage previously enjoyed by the folks using mailboxes near Oakland will vanish – panel requests from Monterey will no longer have to lose to panel requests submitted from closer to the Medical Unit.

Now, what your humble blogger would suggest, since we’re in the process of bringing panel disputes to the information technology era, is to allow us repeat players to submit our contact information to the Medical Unit directly – if Party A submits a panel request and gets an automatic panel generated, why not immediately e-mail that panel to the other party rather than rely on service by the other side?  Mail doesn’t always make it, and it’s slower than e-mail when it does.

Another feature your humble blogger would like to see the Medical Unit explore is making panels accessible by the repeat players, such as claims administrators and attorneys: a search feature by name and date of birth (and date of injury) should reflect the panels previously issued in that case.

The comment period is open until June 20, 2015, folks – what do you think of the new regs?

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Marijuana Dispensary Fails to Carry Workers’ Comp; Security Guard Robbed Twice!

June 5th, 2015 No comments

Your humble blogger has been told that, with the right drugs in one’s system, you can feel like you don’t need anything.  There are drugs to make you feel like you don’t need sleep.  There are drugs to make you feel like you don’t need food.  There are drugs that make you feel like you don’t need to do anything!  After all, like the old nursery rhyme goes:

“ABCD LSD, little bears are chasing me!”

Apparently, if you’re around marijuana enough, you don’t need to get workers’ compensation insurance, or so thought the proprietors of Green Cactus Collective Medical Marijuana Dispensary.

The two have been changed with multiple counts of felony insurance fraud for failing to carry workers compensation.  Apparently, their security guard was shot several times during a robbery, and they convinced him to lie to his doctors that he was a “volunteer” and not an employee.  While recovering from the gunshot wounds, he was brutally beaten with a gun during ANOTHER robbery, and incurred more injuries (and medical bills!)

As we’ve seen, workers’ compensation insurance can reject Marijuana, marijuana dispensaries cannot reject carrying workers’ compensation insurance for their employees.  Al Capone was nabbed on Tax Evasion.

Kids – put down the pipe, and get workers’ comp insurance instead.

Have a great weekend!

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Deported IW Allowed To “Appear” and Testify Via SKYPE

June 1st, 2015 No comments

It is not often that your humble blogger is in agreement with the position of an applicant, but your humble blogger feels compelled to report to you the results in the case of Alvarez v. Bay Collision Repair.

Applicant allegedly sustained an injury to his left shoulder for an apparently uninsured employer.  His employment was terminated post-injury, and he was apparently deported from the United States, and so he couldn’t appear for his trial.  The WCJ issued a ruling that applicant could appear for his trial and testify via Skype or other teleconference means (at his own expense).

The WCJ reasoned that under California Evidence Code section 240, a witness is “unavailable as a witness” if a person is absent from the hearing and the court is unable to compel his or her attendance by its process.   Subsection (b) negates the “unavailable” status if the availability is procured by the wrongdoing of the proponent of the testimony “for the purpose of preventing the declarant from attending or testifying.”  However, your humble blogger, with all his years of studying human nature, somehow doubts that Mr. Alvarez had himself deported from the United States for the purpose of avoiding testifying at his workers’ compensation trial.

Accordingly, the WCJ found that applicant could appear at trial and continue to prosecute his case despite being out of the country and being unable to re-enter.

Labor Code section 1171.5 very clearly states that all the protections of the Labor Code and the Workers’ Compensation system are to be extended to citizens and aliens alike, whether present in the country legally or illegally.  Generally speaking, this is only limited by federal law with respect to reinstatement and similar remedies.

This makes sense, no?  After all, there are employers in this state that knowingly hire illegal aliens, then come to the Court with unclean hands playing the victim.

Now, your humble blogger would submit to you, however, that this decision, which the WCAB affirmed and the Court of Appeal declined to review, should go even farther.  A favorite tactic of some applicant attorneys is to claim “bad faith” and subpoena an adjuster on a file.  Typically, neither deposition nor trial testimony leads to any sanction-worthy conduct, but a day out of the office for an adjuster is absolutely brutal for meeting other deadlines.

Preparation, travel there, testimony, travel back… that can kill half a day if not a full day.  Your humble blogger would submit to you that claims examiners should likewise be able to testify through teleconferencing.  An applicant attorney might not see it worthwhile when he or she has to waste an hour of his or her own time for every hour of the claims examiner.

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Supreme Court: ANY Industrial Contribution to Primarily Non-Industrial Overdose is Compensable

May 29th, 2015 No comments

Hello dear readers!

The Supreme Court has issued its opinion in the South Coast Farming case, and has reversed the Court of Appeal’s opinion, which had previously rescinded the finding of industrial causation in the overdose death of applicant B. Clark.

By way of background, applicant while taking medication for an industrial injury, as well as other medication for non-industrial difficulty sleeping, suffered an overdose resulting in his death.  His wife and children sought death benefits (a somewhat gruesome term that still bothers your humble bloggers delicate and sensitive nature) only to have the Agreed Medical Evaluator opine that the medication taken for the industrial injury made, at most, the “crust” of the causation pie.

The finding of compensability was appealed to and reversed by the Court of Appeal.  Your humble blogger may have even weighed in on the issue himself.

Now the Supreme Court has issued its opinion: “The [COA] thus concluded that, although Elavil ‘played a role’ in Clark’s death, it was insufficient to prove proximate causation because it was not sufficiently ‘significant’ or a ‘material factor.’  This analysis fails to honor the difference between tort law principles and the application of the workers’ compensation scheme … In the workers’ compensation system, the industrial injury need only be a contributing cause to the disability.”

In short, if the crust is part of the pie, then the resulting stomach ache is an industrial injury.  No … wait … if the pie is in the crust, and the crust flakes into the pie, then it’s a crusty pie which is industrial.  No… if the pie is cut in two, and then some of the crust falls into the… pies are delicious, and lend themselves to a sweet tooth, an empty stomach, and, as your humble blogger has found on many occasions, even a broken heart, but workers’ compensation analogies aren’t the best plate for this meal.

The industrial cause, even if not “significant” or “a material factor” is enough.  One drop of industrial poison spoils the well.

So, why is your humble blogger so upset about the results that follow this decision?  Civil Code section 3333.1 – “no source of collateral benefits introduced pursuant to subdivision (a) shall recover any amount against the plaintiff nor shall it be subrogated to the rights of the plaintiff against a defendant.”  If there is a basis to claim medical malpractice on the part of one or more of the physicians involved in this case (doctors – I said “if”, so you can hang up the phones and let your libel attorneys get back to counting the retainers you’ve paid them) there’s nothing in it for the comp carrier.

The family of the deceased might be able to recover in tort against the physicians involved, but they can now ALSO recover from the comp carrier, and there is no credit or remedy for the workers’ comp insurer.

At the risk of sounding childish – it isn’t fair.

Have a good weekend, folks!

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WCJ: RFA For Previously Authorized Ongoing Home Care Not Subject to UR

May 27th, 2015 No comments

Hello, dear readers!  Your humble blogger returns, eager to share with you the wisdom of this pivotal area of law that determines so much in the lives of so many… you guessed it! WORKERS COMP!

So, have you heard of the Miramontes case?  Applicant sustained an admitted industrial injury that left him effectively paralyzed from the waist down.  His treating physician had recommended home care services to help him perform basic activities of daily living, including getting in and out of bed, getting around, etc.  Defendant had been dutifully providing (or paying for) home care services for seven years until around October of 2013, when defendant wrote to the treating physician to have him submit additional requests for ongoing home care authorization.

When the good doctor did not provide a prompt response, even after repeated follow-up by defendant, in March the faucet was turned tightly clockwise (for those of us who grew up with electronic watches, that means they turned the water off).  Naturally, applicant had a problem with this.  In response to the facsimile reflecting this cut-off, applicant faxed back a prescription from the treating physician to provide home care “full time.”

Defendant then submitted the prescription to UR, and UR promptly denied any home care at all.

The matter proceeded to trial, and the WCJ ruled that defendant must continue to provide home health care (at $560 per week).

Defendant sought reconsideration, which was denied without comment by the WCAB.  A writ of review was likewise denied by the Court of Appeal.  In his report and recommendation, the WCJ noted “this judge believes that defendant’s unilateral stoppage of medical treatment to force a new prescription for any medical service that an injured worker has needed for seven years is disingenuous and should not be allowed by the [WCAB].”

Now, let your humble blogger begin by saying this issue is not as clear-cut as a “true-believer” from either the applicant or defense bar might claim.  I get the defense position completely – we wanted a prescription to make sure that the services are still necessary; and, once we got a prescription, we performed Utilization Review.  Additionally, IF it was wrong to threaten to cut off home healthcare after the treating physician failed to respond from October to March, that has little to do with the fact that a prescription was reviewed and failed the UR test.

We saw, for example, the case of McCool v. Monterey Bay where defendant’s UR of pain medication which applicant had been receiving regularly, prompted the WCAB to note that such adherence to the strict letter of the law with respect to UR might warrant an audit, especially when the result is putting an injured worker’s life in peril by suddenly cutting off medication.

In this case, applicant had been using (and, one could say, relying) on home health care for seven years.  Without any apparent documentation in change in circumstances, defendant obtained a prescription for the services, and UR then non-certified the treatment.

On the other hand, look at the position the WCJ took in this case: He did not order the defendant to provide medical treatment because UR was untimely.  Instead, he looked at the merits of this particular case, and, in these circumstances, found that it was appropriate for the treatment (home healthcare) to continue.

This standard or review is proposed in Senate Bill 563 – if there’s no change in circumstances, the defendant is prevented from re-submitting previously authorized treatment to UR.

But, at this time, that’s NOT the law.  Dubon II very clearly spells out that the WCAB has no jurisdiction to determine the validity of a UR determination EXCEPT as to whether it was timely.  In fact, your humble blogger has seen a string of cases recently which adhere to Dubon’s holding very closely, and seem to turn a blind eye to the reasoning used by UR.

So what’s different about this one?  Why did the WCAB decline to comment or provide analysis?  Why was this new exception (previously authorized ongoing care) not adopted or rejected by the Board?

It is well above your humble blogger’s pay grade to find the answer (your generous subscription fees are appreciated, nonetheless), but I suspect it has to do with the facts of this particular case – a treatment that is clearly necessary and, probably, vital on the one hand, and a result on the other hand that is, in your humble blogger’s estimation, procedurally correct.

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