Bifurcating Lien Trial Not Due Process Violation

February 5th, 2016 No comments

Happy Friday, dear readers!

Have you gotten a chance to review the Salas case, recently denied review by the Court of Appeal?  It’s the one where lien claimant Southland Spine and Rehabilitation Medical Center complained about bifurcation of issues resulting in a total bar to the lien claim.

Ms. Salas sustained an admitted injury to her back and sustained a stress claim to boot.  She treated with Southland, which was outside of defendant’s MPN, but when the case settled by way of C&R, Southland showed up with its hand out.

The issues were bifurcated to allow the defendant to present its MPN defense, and all other issues were deferred.  When the WCJ found that defendant’s valid MPN barred Southland’s liens, Southland sought reconsideration.  The basis for the petition was the alleged defect under section 9767.12 in that there was no notice to the applicant in Spanish, and that Southland was denied due process when the issues were bifurcated.

Defendant showed that MPN notices were sent, and that applicant was treating within the MPN until she switched to Southland.  Defendant was also able to provide objection letters following the switch out of the MPN.

Defendant also cited the Knight case, where the WCAB held, en banc: “an employer or insurer’s failure to provide required notice to an employee of rights under the MPN that results in a neglect or refusal to provide reasonable medical treatment renders the employer or insurer liable for reasonable medical treatment self-procured by the employee.”  As applicant was receiving treatment within the MPN until she switched, any potential defects in the notices did not result in the “neglect or refusal to provide reasonable medical treatment.”

And recall, dear readers, that the WCAB has expressed similar reasoning before.

The WCJ also noted that even if applicant could not read English, her attorney, who received a copy of the notice, could read English, and so notice could be provided to the injured worker through her attorney.

The WCAB denied reconsideration and the Court of Appeal denied review.

Now here’s an interesting thought on the bifurcation issue: what possible harm was done to the lien claimant by requiring that the threshold issue of the MPN defense be addressed first?  Lien claimants and their representatives are aware of reserve requirements and the benefits to a defendant in closing a file.  For that reason, tactically, some lien claimants will attempt to delay trial or resolution, just to increase the costs associated and bring more money to the settlement table.

Don’t let them get away with it!

There are legitimate liens out there, sure – and those are the ones that should be paid.  Your humble blogger has seen instances of written authorization to treat next to bill denials: these things happen.  But when a treating facility is advised (and regularly) of a defendant’s MPN, and the treatment continues, there’s no sympathy to be found.  After all, one does not get an orphan’s leniency when being tried for the murder of one’s parent.

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Dancing Hamster Fraudster Goes Down!

February 3rd, 2016 No comments

Although this blog is most certainly humble, it strives to be at least somewhat respectable as well.  To that effect, one would not expect a search of the blog to turn up many references to the word “hamster”, but it’s there!

In any case, dear readers, you may recall the curious case of the Kia car commercial’s dancing hamster – a dancer who tangoed his way from a workers’ comp claim to a Kia commercial, and then waltzed his way from the commercial to a no contest plea for insurance fraud.  Leroy Barnes will serve 90 days of electronic monitoring, 400 hours of community service, and pay $24,000 in restitution.

I guess you could say Mr. Barnes bit off more than he could chew…

hamster eating carrot

In any case, this story reminds us, on the defense side, of the importance of regular check-ups: social media, sub-rosa, etc. to make sure that we weed out the fraudsters and that there are enough benefits available for the legitimately injured workers.

Special thanks for JJB for the tip on this story!

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Good Faith Personnel Defense Survives “Media Scrutiny” Challenge

February 1st, 2016 No comments

Happy Monday, dear readers!

We’re all familiar with the Labor Code section 3208.3(h) defense against psyche claims for psyche injuries “substantially caused by a lawful, nondiscriminatory, good faith personnel action.”  But what constitutes good faith?

In the case of Stolp v. California Dep’t of Developmental Services, applicant, a peace officer, was called with his partner to make contact with a staff member accused of “Tasing patients.”  Upon contacting the staff member, applicant confiscated a loaded handgun and a Taser gun but otherwise let the staff member go.  Patients were later found to have sustained “thermal burns” which would not have been caused by the Taser gun.

Six months later, an internal affairs investigation was launched into Mr. Stolp’s handling of the situation, and a while after that, a journalist picked up the story and publicly criticized the handling of the “Taser incident.”

The internal affairs investigation described Stolp’s actions in fairly harsh terms, and recommended a 10% pay reduction for 12 pay periods.  Applicant began seeing a psychologist, who documented experiencing symptoms as a result of the IA report.

Applicant’s psyche claim was denied citing the good faith personnel defense, but applicant countered with the claim that the IA investigation was not in good faith because it was done in response to media attention.

What is the standard for good faith, anyway?  The Court of Appeal in Northrop Grumman Corp v. WCAB, Graves (2002) 103 CA4th 1021 held that the standard is defined as “done in a manner that is lacking outrageous conduct, is honest and with a sincere purpose, is without an intent to mislead, deceive, or defraud, and is without collusion or unlawful design.”  Such was the language cited by the WCJ in finding that the internal affairs investigation was a good faith personnel action.

The WCJ further found that other employees, including supervisors and co-workers, were also subject to personnel action, which militates against a finding of discrimination.

It’s perfectly reasonable that after a harsh and damning internal affairs report, the subject of the report might develop psychiatric or other symptoms.  However, the defense is there for a reason – to allow employers to meet their various business and staffing needs without fear of an expensive workers’ compensation claim.

Of interest here is the fact that a whole lot of heads rolled for the “Taser incident,” and applicant did not receive the worst of the consequences.

But, hypothetically speaking, if the internal affairs investigation was undertaken only after being prompted by bad publicity… would that invalidate the good-faith personnel defense?  The investigation itself might start because of outside influence, but without evidence that the investigation was performed or the results obtained in such a manner as to be tainted with appeasing the public, wouldn’t the defense still hold?

In this case, the factual timeline showed that the internal affairs investigation was started six months or so after the incident, but another five months or so before the negative media attention, so the issue isn’t really present in this case.

How far do you think a defendant can stretch 3208.3(h)?

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Dutch Deploy Driverless Shuttles – Have You Seen Sarah Connor?

January 29th, 2016 No comments

Happy Friday, dear readers! What news does your humble blogger bring you this morning? IT’S HAPPENING!

Spring-boarding from the phoenix-like rise of the wooden shoe industry, the Dutch, yesterday, allowed the “WePod”, a driverless shuttle bus, to take to the streets, transporting about six passengers down a short stretch of road, with several busses and longer distances to follow.

In April, Rotterdam Port is even set to start using driverless trucks, and Nevada approved tests for driverless trucks back in May of 2015.

This is just the beginning of course, but those of us in the industries related to these developments need to keep an eye out: workers’ compensation may become less and less relevant as technology replaces jobs.  After all, fewer workers means fewer work injuries.

Have a good weekend, dear readers!

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Co-Workers Report Fraudster; No Contest Plea Follows

January 27th, 2016 No comments

Normally, dear readers, understanding both sides of a business – consumer and commercial – is a good thing.  There are exceptions, of course, such as when one is in the incarceration business.  But, this little bit of advice was apparently never communicated to Mr. Mark Navarrete, who recently pled no contest to workers’ compensation fraud charges.

Mr. Navarette sustained an injury to his elbow during a soft-ball game and later claimed it as a work injury.  The source of the discovery? A co-worker reported the fraud, which prompted an investigation and prosecution.

A happy ending indeed, for Santa Clara County, but a happy ending for all of us watchers of all things workers’ comp.

The source of discovery for the employer is what makes this story important: a co-worker reported Mr. Navarette and lead to the prosecution and a guilty plea.  The injury itself could have kept an open file, with costs and reserves, for years to come.

Your humble blogger submits to you that what saved the County of Santa Clara a small fortune in benefits and deterrence to future frauds was the choice of at least one co-worker to report the truth.  Not every employee would be inclined to choose employer over co-worker.  Nor would every employee be inclined to make a choice at all – reasoning that minding one’s own business is prudent and practical.

Workers’ compensation fraud hurts all of us – it depletes budgets, raises costs, and, when the fraud is ultimately discovered, it weakens the credibility of legitimately injured employees (don’t tell my fellow defense attorneys that I actually admitted that such a thing exists!)

One of the best ways for employers to fight workers’ compensation fraud is to make sure their employees feel appreciated and well-treated.  If the workers’ compensation insurer properly takes care of the needs and quickly administers benefits to an actually injured employee, it makes it easier for everyone to recognize that the defense community isn’t cheating anyone.

Ultimately, as perhaps was the case here, employees should recognize that workers’ compensation fraud is stealing from the employee’s pocket just as readily as it is stealing from the employer’s.  Hopefully, more and more Californians will understand this fact and do their best to report fraud when they see it.

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Puff Puff and Get WC Benefits

January 25th, 2016 No comments

Hello, dear readers!

A couple of weeks ago, this blog discussed the matter of Garcia v. Lai, where a split panel found that a landlord’s handyman, while working on the landlord’s personal home, fell under the scope of the home-owners’ workers’ compensation policy, rather the uninsured arena that would have opened up had the injured worker been found to be an employee of the rental apartment venture.

Now, dear readers, I bring you the case of Arnold v. Pingrey, a case recently denied review by the WCAB.  The fire is very similar in each of the two cases – is the injured worker an employee of the business venture, or someone just doing work on a house?  But the smoke has… shall we say… a very distinct aroma in the Arnold case.

Based on what’s reported in the WCAB’s split panel opinion and the WCJ’s report and recommendation, Pingrey had a marijuana operation at his house, with three small gardens growing to feed the reefer madness in the Bay Area.  While Mr. Pingrey, who was later the target of police attention, was not convicted of any crimes, he did enter a diversion program.

In any case, prior to this brush with the fuzz, Mr. Pingrey and applicant Arnold struck a bargain – Mr. Arnold would travel from the East to live in Mr. Pingrey’s home.  He would work on the house, cook and clean, and help maintain the marijuana plants.  In exchange, Mr. Arnold was to receive $500 per week, room and board, and a detailed and advanced course in marijuana farming.

All was going well, until applicant and his employer confronted an armed intruder, who shot applicant, resulting in paralysis.  From the WCJ’s report and recommendation, it appears that Mr. Arnold suffered paralysis and is now confined to a wheelchair.

Naturally, applicant sought to pursue workers’ compensation benefits, but there’s no one to pursue – Mr. Pingrey had no workers’ compensation insurance, and, from what I gather in reading the R&R and the WCAB opinion, there doesn’t appear to have been a homeowner’s policy either, unlike the case in Garcia v. Lai.

The Uninsured Employer Benefit Trust Fund became the target in this case, as no other targets were available, and promptly denied the claim, arguing that, as applicant was engaged in an illegal business, there is no coverage to be provided, nor would a homeowner’s policy have covered the “venture” either.

When the matter proceeded to trial, however, the WCJ found that under Labor Code section 3351(d), applicant a “person employed by the owner or occupant of a residential dwelling whose duties are incidental to the ownership, maintenance, or use of the dwelling…”  After all, applicant was living at Mr. Pingrey’s home and performing work on the house, ranging from construction work to cooking and cleaning.

UEBTF sought reconsideration, relying on the rest of the language of 3351(d): “… or whose duties are personal and not in the course of the trade, business, profession, or occupation of the owner or occupant.”

The WCAB issued a split panel, with the majority finding that applicant had been a residential employee, and was thus entitled to benefits.

But there was a dissent…

One commissioner reasoned that applicant was working for the marijuana operation, and so his duties were “in the course of the trade, business, profession, or occupation of” the owner of the residence (Labor Code section 3352).

Here are your humble blogger’s thoughts on this matter: applicant could, reasonably argue that he really had concurrent employment.  On the one hand, he was being paid $500 a month and provided room and board to take care of defendant’s house and household (cooking, cleaning, child care, etc.)  Applicant also had a second job – assisting his employer in growing and selling marijuana, in exchange for being taught how to do the same.

The injury was the result of confronting an armed intruder – was this part of his duties in the household or the marijuana operation?  As we’ve seen before in the Rincon matter, the reason why a worker was shot matters.  If it was incidental to the job, it is compensable, if it is a personal matter, even if it happens at work, it probably will not be compensable.

Can we apply the same logic to these two employments?  If applicant was shot in the discharge of his duties for one, and not the other, shouldn’t that guide the resolution?  Your humble blogger doesn’t have the facts related to the robbery itself, but if the majority of what was taken (if anything) was the marijuana, then it would appear that the injury resulted as part of the marijuana internship, rather than the household/residential job.  If such is the case, it would appear that the injury was sustained as part of an illegal business that would not be covered by a homeowner’s policy, even if defendant had one.

Additionally, it seems a question of fact whether there were two distinct jobs in the first place, as applicant moved in with defendant specifically to learn how to grow marijuana, and the rest of his duties were part of the bargained-for exchange.

Finally, although the terms are coached as an employment relationship, both from applicant and defendant, it seems that there is almost a partnership in place with these facts.  It is not uncommon for partners to have different duties – brains vs. brawn, business vs. talent, name recognition vs. leg work.  Although the terms included pay from one party to the other, given the exchange involved it seems almost like a partnership for an illegal venture.  (Just a crackpot legal theory, dear readers – my research doesn’t actually include trying the products discussed above…)

The case is a very tragic one, of course, but, despite recent laws in various states, Marijuana remains illegal on the Federal level, and the manufacture and sale of drugs, in general, continue to be intertwined with violent crime.  UEBTF being charged with providing benefits in a case such as this somehow seems like an incorrect result.

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No Written PTP Authorization? No MPN For You!

January 22nd, 2016 No comments

Happy Friday, dear readers!

Your humble blogger has received the countless e-mails, letters, carrier pigeons, and threats regarding the glaring deficit of MPN-related blog posts. I have heard you, dear readers, and I will comply!

But, as your humble blogger is equally ready to hear your demands as he is to disappoint you, don’t expect a happy ending to today’s fairy tale.

The case is that of Pomona Unified School District v. WCAB (Bryant), in which the Court of Appeal recently denied review of the WCAB’s denial of defendant’s petition for reconsideration.

Basically, applicant-teacher had resolved his claims by way of stipulated award and decided to use his right to medical treatment to undergo knee surgery. He requested a physician from defendant’s MPN, but, even though the adjuster authorized the treatment by phone, two months later, no written authorization had issued.

Following an expedited hearing, the WCJ held that applicant was entitled to treat outside of defendant’s MPN because defendant had “failed to provide medical treatment.”

On review, the WCAB denied reconsideration, and likewise held that applicant is entitled to treat outside of the MPN.

Now, in reviewing this opinion, your humble blogger is a bit puzzled: if there is a defect in the MPN, either in its coverage or in the prompt authorization of treatment, shouldn’t the defense be entitled to cure the defect? Sure, perhaps applicant can self procure treatment from the point that care should have been authorized to the point that it eventually would be authorized… but should defendant’s MPN be invalidated going forward?

After all, we’ve seen at least once instance where the WCAB held that a defect in the MPN, once cured, can redeem the MPN.

One of the interesting thoughts from this scenario is the terms of authorization for an MPN physician. Membership in an MPN is a negotiated benefit – doctors and insurers can bargain for the terms of service, including the billing rates and the methods of reporting. Perhaps future exploration of MPN versatility should include accepting phone authorization, rather than requiring a written one?

In any case, dear readers, let’s just use this case to remind ourselves of the importance of getting our authorization letters out promptly!

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Robot Security Guards? EXTERMINATE!!!

January 20th, 2016 No comments

Hello dear readers!

As technology continues to advance, it appears that no human job is truly safe, including security work.

It looks like Silicon Valley is soon to be patrolled by robot guards, weighing 300 pounds and standing 5 feet tall. They will patrol areas, records observations, and report any suspicious activity to local law enforcement.

I know, I know, we still need the humans to apprehend the criminals (for now), but think about the fact that your typical human security guard, many of which are strictly instructed to observe and report, and never apprehend, can be replaced without concern for (1) workers’ compensation injuries; (2) breaks, naps, or (3) the risk of a labor suit for overtime, wage and hour claims, etc.

Currently, Knightscope, the company releasing these robot guards, is charging $4,500 per month per robot for 24/7 operation, which boils down to well under minimum wage. Perhaps the legend of John Henry is alive and well, and even the keenest and most dedicated of “observe and report” security guards will soon find themselves replaced with the modern steam drill.

Remember, folks, this is a trend: some supermarkets are starting to deploy robots to patrol the aisles to scan shelves that need to be restocked. Warehouse shelves are also emptied by robotic arms in lieu of human ones.

So, what’s to be done, dear readers? Shall we rise up in arms against our robotic overlords and demand a return to the traditional life of clubs, caves, and grunting? Or is this yet another reminder that California should shift its attention away from raising the minimum wage and, instead, to encourage a labor force that is not being replaced by machines? Do engines get rewarded for their steam?

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Happy MLK Day 2016!

January 18th, 2016 No comments

Happy Martin Luther King Day, dear readers!

Is today a holiday for you?  It is for the State of California and for the Federal Government as well.

As for the rest of us? Some have the day off, some are taking depositions…

As always, your humble blogger hopes you have the day off, and in between your leisurely activities, you get the opportunity and inclination to reflect on the history of the day and the reason why it is a recognized holiday.

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Amended SB 563 Would Require UR Contracts Disclosed to AD

January 15th, 2016 No comments

So there I was, dear readers, just minding my own business, when a gentleman wearing a hat, trench-coat, and dark glasses sat next to me in the cafeteria of one of the WCAB boards.  “Shhh… don’t look up, they’re watching us.”

“Us?” I thought to myself…

Captain crazy continued – “I’m on to it, maaaaan, I finally got a lead that’s going to bring the whole thing down.  The insurance companies – they’re paying millions of dollars for every utilization review report to deny treatment.”

I had the same reaction as I expect you would, dear readers.  Apparently, this… umm… “gentleman” was under the impression that there was some major conspiracy to pay UR vendors to recommend denial of treatment that would otherwise have been authorized.  Research from the CWCI reflects that the vast majority of California workers’ compensation treatment gets authorized, but perhaps there is a conspiracy out there after all?  Perhaps between discussions of concealing the existence of extra-terrestrials and slipping fluoride into our drinking water to pollute our precious bodily fluids, the smoky rooms are all a-chatter with rigging the UR system?

precious bodily fluids

Before I could ask my new friend about what information he had acquired, I heard the rapid footsteps of men in white coats rushing down the hall.  In a flash, before he could reveal the truth to me, this crusader for truth was gone…

View post on

Well, never fear, dear readers, as it appears word has gotten out.  Senate Bill 563, as amended, would “prohibit the employer, or any entity conducting utilization review on behalf of the employer, from offering or providing any financial incentive or consideration to a physician based on the number of modifications, delays, or denials made by the physician.”

Labor Code section 4610(e) would be amended to not only prohibit these incentives, but to provide the Administrative Director with authority to review any payment arrangements between an employer and a UR vendor.

As this humble blogger’s not-so-humble readers will recall, this proposal was reviewed on this humble blog not too long ago, but the language was a lot more offending: the information, essentially, would have to be made available to any member of the public.  Now, the power to demand inspection is limited to the Administrative Director.  At the very least, we’re moving away from the initial craziness.

But, the bill still provides additional burdens of regulatory compliance to the employers and insurers. It still exposes the parties to having to reveal their bargaining power and position, which might make negotiation a bit more difficult (“You want to charge Courage Insurance Company $200 per report? But I know you’re only charging Bravery Insurance Company $150!”).

What do you think, dear readers, is this a big deal?  Should UR vendors just start attaching the invoice for every UR report to the report itself? Is there anything worth hiding?  Or perhaps your humble blogger is just getting paranoid (that’s what THEY want me to think!)

Have a good weekend, folks!

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