Section 10250(d) – “That Rule We All Ignore”

October 22nd, 2014 No comments

Once in a while, your humble blogger makes it down to the Board to do some lawyering.  And, at almost every venue, grumblings are regularly heard as to how long it takes to get a hearing, or how quickly the various judges’ calendars fill up.  There’s just not enough Board time to go around!

Most of the time, hearings get set at the WCAB in response to a Declaration of Readiness to Proceed.  Forms for the regular DORs and the DOR to expedited hearing both have a little box to provide the filing party an opportunity to comply with an oft-ignored Board Rule: 10250.

10250, subsection d, provides that “[a]ll declarations of readiness to proceed shall state under penalty of perjury that the moving party has made a genuine, good faith effort to resolve the dispute before filing the declarations of readiness to proceed, and shall state with specificity the same on the declarations of readiness to proceed.

But, as seems to be the case, the field provided to state, with specificity, the good-faith efforts made to resolve the dispute, is used, instead, to articulate in as vague a manner as possible, the issues to be addressed.  So, instead of writing “applicant’s demand for temporary disability benefits, made in correspondence dated June 13, 2014, have prompted no response” some practitioners write “defendant unreasonably denying temporary disability benefits.”

Your humble blogger would like to see rule 10250 enforced more strictly.  If parties are required to properly seek informal resolution, and document the same, prior to requesting Board assistance, we might see a bit less traffic at the Board, and the WCJs’ calendars might be a bit more freed up.  Furthermore, if a party is required to seek resolution of an issue prior to filing a DOR, the other party is properly put on notice of the issue to be addressed before the board.

As my beloved readers probably know, the WCAB has approved the new Board rules to go into effect on January 1, 2015.  And, as it would appear, section 10250 is still in there!  But, why keep the rule in there if it is not going to be enforced?

*grumble* *grumble* *grumble*

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Bowling Star Strikes Out; Down For Comp Fraud

October 20th, 2014 No comments

So, dear readers, here we are again – another weekend gone in the flash of an eye, and just as you start feeling the symptoms of withdrawal from your workers’ compensation addiction, here it is again for that soothing dose.

Today’s post is about a dual-employment rocket scientists/brain surgeon who, despite a genius and elaborate plan to defraud his employer’s workers’ compensation insurance fund, went down for WC fraud.

Damon Fraticelli was a 27-year-old employee of the Travis Unified School District (no, dear readers, the TUSD did not employ him in the capacity of a rocket scientists/brain surgeon; that part was just your humble blogger’s Monday Morning sarcasm peeking out) and claimed an injury to his right shoulder, preventing him from properly discharging his duties as a janitor.

Of course, the day after he complained of the crippling pain to his doctor, he was video-taped bowling for over 40 minutes, and even scored so well as to have his accomplishments published in the newspaper!

Fraticelli plead guilty to felony fraud charged and got put on 5 years of probation along with an order to pay restitution in the amount of $10,000.

So, dear readers, let that be a lesson for all of us.  If you blatantly and carelessly try to rip off your employer, or trick him into involuntarily sponsoring your blossoming bowling career, you can expect a very stern talking-to.  As far as we know, convict Fraticelli may even be on double secret probation!

Aside from the fact that a fraudster got off ridiculously easy, what can we learn from this story?  Employers should get to know their employees.  Adjusters should get to know the employers for the claims.  If your applicant has a hobby that should be facing the Kaibosh because of his or her injury, make sure the Kaibosh has actually been put on, and if the Kaibosh has not been put on the hobby, the lack of Kaibosh should be on tape.

Good week to you, dear readers, and, of course, good hunting!

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Psychologist Charged With Submitting False Bills

October 17th, 2014 No comments

“Of course, Mr. Adjuster, I definitely performed those psychology services.  Here are my bills… PSYCH!”

For those not in the know, when your humble blogger was only knee high to the grasshopper, that’s how the kids would make false statements, and then immediately retract them.

Well, enough down memory lane, dear readers, this blog is all about the present (and sometimes the future).

Psychologist Pamlyn Kelly of Grass Valley is under investigation (not convicted of anything, mind you!) for submitting bills to insurance carriers for services never performed.

Does Dr. Pamlyn Kelly’s name appear on any of your bills?  Perhaps you’d like to wait to pay them until after the investigation, or perhaps, the prosecution, is concluded.  Additionally, if you have a claimant who received treatment from Dr. Kelly, it might make sense to send them copies of the itemized bills and ask if all services billed were actually provided.  That is, of course, if you and the applicant have a good relationship…

Have a good weekend, folks!

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TPD “In Accordance with the Fact” Not Found w/o Voc Rehab Evidence

October 15th, 2014 No comments

There are many mysteries in the world, but one of them is not how your humble blogger feels about “developing the record.”  For better or for worse, once discovery is closed, it should stay closed.  However, as is abundantly clear, not everyone has adopted your humble blogger’s stance on this issue.

In the case of Morris v. San Gorgino Hospital, applicant sustained three injuries: a back injury in May of  2004; an assault by a meth-addict-patient in September of 2004; and a CT through November of 2004.

A herd of AMEs was used to render opinions, and applicant ultimately argued that she was permanently and totally disabled based on Labor Code section 4662 (“in all other cases, permanent total disability shall be determined in accordance with the fact.”)

At trial, the WCJ found that applicant was 90% disabled due to the May, September, 2004 assault, 23% permanently disabled because of the cumulative trauma, and that the specific injury in May of 2004 caused only 6% permanent disability.

Before we go any further, it’s important to note that this is a really serious set of injuries: applicant underwent surgery, suffered a stroke as a result of lack of oxygen during the surgery, and, might your humble blogger remind you, was the victim of a devastating assault during which she was beaten brutally by what most kids these days refer to as a “meth-head”.  So, unlike your garden-variety victim of a particularly painful and unpleasant paper-cut, there is some logic behind the claim that Ms. Morris is permanently totally disabled.

The WCAB, in response to applicant’s petition for reconsideration, adopted the WCJ’s reasoning that, in order to rebut the Permanent Disability Rating Schedule and achieve a 100% rating based on any one injury (such as the assault in 2004), one must provide both medical and vocational evidence, which applicant failed to do here.  After all, although the AMEs concluded that applicant was precluded from competing in the labor market, they apportioned some of applicant’s permanent disability to pre-existing or non-industrial factors.

The panel relied on the WCJ’s arguments, but one commissioner dissented, noting that reconsideration should be granted and the matter should be returned to the trial level to develop the record on whether the disability is total “in accordance with the fact.”  However, as the majority was inclined to deny reconsideration, the record was denied development.  Also, practically speaking, what additional development could the record be given other than obtaining a vocational rehabilitation expert, which was already an option for the applicant before discovery closed.

The Court of Appeal denied applicant’s petition for a writ of review.

 

 

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Happy Columbus Day! Now a Word on Holidays in General…

October 13th, 2014 No comments

Happy Monday, dear readers!  I hope you had a wonderful weekend, and for those of you employed in work places that recognized Columbus Day (or, in some cases, “indigenous people day”), may your weekend continue its enjoyment.

As for us, that neither celebrate that great explorer, nor celebrate the great people he explored, today is another day at work.  So, dear readers, what say you – is this a “holiday” in the sense of workers compensation?

Let’s talk about holidays in general.

Whether something is a “holiday” or not is a very serious question, because it can have very serious consequences for your deadlines: if the last day to do something falls on a holiday, you get an extra day.  (California Rules of Court section 1.10(b) “[u]nless otherwise provided by law, if the last day for the performance of any act that is required by these rules to be performed within a specific period of time falls on a Saturday, Sunday, or other legal holiday, the period is extended to and includes the next day that is not a holiday.”)

Meanwhile, if a holiday falls on a Saturday, it is observed on the previous Friday, while if the holiday falls on a Sunday, it is observed on the following Monday (Rule 1.11).

So, what is a “holiday”?  California Government Code section 6700 provides a list of holidays for California, including: New Year’s Day, Martin Luther King Day, Lincoln Day, President’s Day, Cesar Chavez Day, Memorial Day, Independence Day, Labor Day, Columbus Day (like today), Veterans Day, Christmas Day, and Thanksgiving day.    (See also, Guild v. Bank of America (1999) 64 CCC 175, footnote 2, Unpublished).

Are these holidays applicable to the WCAB?   Well, the California Rules of Court seems to refer to the several section which include Rule 1.10, as “Rules Applicable to All Courts,” so presumably the WCAB would also be bound by this logic.

So, dear readers, those of you planning to celebrate “Greg Grinberg is Awesome Day,” (a festival growing in popularity) or any religious or cultural holidays not recognized by section 6700 of the California Government Code, would do well to note that this does not count as a holiday for deadline purposes.  While it may provide reasonable grounds for obtaining a continuance for a court calendar date, it is not going to get you off the hook for failing to timely file papers.

Happy [second Monday in October] Day!

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Another WC Claimant Charged With Identity Theft

October 10th, 2014 1 comment

So, there I was – taking the deposition of a healthy-looking young man in California, as, through his interpreter, he recited his social security number.  But, as my file reflected, that social security number belongs to a 78-year-old woman in Texas.  “Hmmm, I thought, well that’s odd…”

Yeah, that happens once in a while in California: an illegal alien will pay to obtain a cloned/stolen/fraudulent social security number and passes the basic test to obtain employment.  Then, during the workers’ compensation claims process, the truth comes out: the noble injured worker, suffering heroically in duty to his or her employer, is a fraud and a liar, and has stolen the identity of someone else.

So, dear readers, consider, if you will, the case of Leticia Serapio, who was arrested and charged with identity theft and felony use of false documents.  This is after she filed three claims against her employer, Nutramed, Inc., alleging injuries in 2012, 2013, and a cumulative trauma lasting through both.   A similar case was reported upon earlier

Assuming that she pleads her case out or is convicted, how do you think her credibility will hold up at trial?

Now, this is a case in which law enforcement cooperated with the defendants and prosecuted this case.  However, not all district attorneys have identity theft and fraud cases high on their priority cases.  In any case, the effort should be made to investigate such cases and present the facts to the local prosecutor – if a person is willing to steal another person’s identity and social security number, and lie to get employed, why wouldn’t the same person be willing to lie about the manner or extent of his or her injuries?

As always, WCDefenseCA wishes the prosecutors involved good hunting in the prosecution of this case.

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WCAB: UR Subject To Timeliness Challenge ONLY; All Other Appeals -> IMR

October 8th, 2014 No comments

Come on, dear readers, how often does your humble blogger, jaded by the world of workers’ compensation and made cynical by so many of those that dwell in it, have good news for you?  Well, today is one of those days.

You remember the countless blog posts your humble blogger diligently prepared on the subject of Dubon can now be forgotten.  The endless analysis done by your diligent attorneys on whether or not a particular UR decision can survive a merit-based challenge can now be stricken from your bill (just kidding).  Why, you might ask?  Has Greg started advocating civil disobedience?  Is this a call to arms?  Is this mad defense attorney seeking to violate 18 U.S. Code § 2385?

Relax, dear readers!  Until there is a return of prohibition or a ban on coffee, your humble blogger will probably not be called for armed revolt.  However, it is with great pleasure that I can report that the Workers’ Compensation Appeals Board, in an en banc decision, has revered most of its prior holdings with respect to the susceptibility of the UR process to non-IMR related challenges.

Basically, the WCAB held that “[a] utilization review (UR) decision is invalid and not subject to independent medical review (IMR) only if it is untimely.”

So, if UR denies the request for authorization in a timely fashion, even if the stated reasoning appears to be “quarter came up tails” the decision goes to IMR.

If the UR decision is not timely, then the injured worker still bears the burden of proving that the requested medical treatment is medically necessary.

Your humble blogger’s favorite quote from the latest Dubon decision?  “The legislature has made it abundantly clear that medical decisions are to be made by medical professionals.  To allow a WCJ to invalidate a UR decision based on any factor other than timeliness and substitute his or her own decision on a treatment request violates the intent of SB 863.”

So, like the bad guys in Lethal Weapon 2, UR can visit the legal world from the medical, make a bunch of applicants upset, and then claim diplomatic immunity, of sorts, subject only to IMR.

Now dear readers, what does that make you think? What does that make you feel?  What does it make you think about what you feel?

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WCAB Holds MPN RFAs Can Be Subject to UR

October 6th, 2014 1 comment

Hello, dear readers!  The weekend has drawn to a close, the sun has risen on a Monday, and so begins the dance of workers’ compensation, once again, for all of us to endure and some of us to survive.

That being said, your humble blogger will remind you that this humble little blog did its part in raising the hue and cry of the theory, oh-so-appealing, to applicants’ attorneys everywhere: a defendant can use the MPN or Utilization Review, but not both.

In the case of Stock v. Camarillo State Hospital, applicant sought reconsideration of the WCJ’s determination that defendant’s UR was admissible.  Why would the applicant think the UR report was inadmissible?  As the WCAB summarized applicant’s argument, “[a]pplicant contended that the UR report was not admissible based upon her assertion that the employer may not contest through UR a request for authorization by a treating physician within the employer’s [MPN].”

While treating applicant’s petition as a petition for removal, the WCAB held that “applicant’s required participation in her employer’s MPN dos not prohibit defendant from referring an MPN physician’s request for authorization of medical treatment to UR and [IMR].”  The WCAB further noted that, as the California Supreme Court held in Sandhagen that UR is mandatory for all requests for treatment.  Applicant’s theory would, effectively, let an employer “opt-out” of UR, by choosing the set up an MPN instead.

Now, if you present this to an applicant’s attorney, you will likely get the response “this is just a panel decision.”  Hogwash – this is an indication of how the commissioners will rule on this issue – 3 of 5 sitting commissioners, in fact.

So, dear readers, go on – UR that MPN Doc’s RFAs without fear!

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Proposed Regs: E-Filing Panel Requests; More Litigation Faster!

October 3rd, 2014 No comments

Want to request a panel? There’s an app for that!

The Department of Workers’ Compensation has posted proposed regulations to get the ball rolling on replacing the live-person Medical Unit with an automated system that would take online submissions.

Your humble blogger is all in favor of technology and progress, but let’s identify the problem before we come up with more technologically advanced ways of ignoring it.

The problem with the Medical Unit now is that it can take a month or two to get a panel, and the panel usually results in one or both parties being unhappy.  So, the parties take it to the Board for resolution, and each WCJ gets to smile and think how he or she became a WCJ because of a lifelong passion in resolving panel disputes.

First off, the regulation (see section 31.1(a)) incorporate that memo that has been sent out with every panel for the last few years: bring all disputes to the WCAB and not to the medical unit.  Furthermore, the regulations appear to break filing down into three categories, at least based on section 30(b)(4):

  1. Requests submitted on a Saturday, Sunday, or holiday; which will be deemed to have been made on the next business day;
  2. Requests made between 5:00 p.m. and 11:59 p.m. (Monday through Friday), which will be deemed to have been made on the next business day;
  3. Requests made between 12:00 a.m. and 7:59 a.m. will have been deemed to be made on the same business day.

So, let’s say you’ve made your objection to a PTP report, and, you’re getting ready to make a panel requests.  If you go online on day 15 after 5:00 p.m., you can submit your request and have it deemed filed at 8:00 a.m. on the 16th day, right?  Fantastic!

The effect here, however, is to eliminate the tactical advantage enjoyed by those law offices located close to the Medical Unit in Oakland, and to favor the technologically savvy.  It also doesn’t seem to resolve the key issues involved: panel specialty disputes.  In fact, the thin amount of guidance offered by the regulations, that favoring the treating physician’s specialty if two panel requests are submitted on the same day, is all stripped away.

It’s easy enough to criticize someone else’s can of worms, but what would your humble blogger do?  Your humble blogger would restore the due process rights of the parties in workers’ compensation proceedings, and allow the parties to retain their own medical experts.  No more panels, no more litigation over how the 16th day should be calculated, or if the boilerplate objection satisfies the regulatory scheme.

Yes, the defense community would have to pay two QME fees; yes there would be two medical reports to read and possibly two depositions.  But, your humble blogger submits to you, his beloved readership, that we would be better off than with the insane mess we have now.  And, if we had a pre-2004 system, we wouldn’t need an online system.

Have a great weekend folks, and to my Jewish readers – may you have an easy fast, and may you and yours be written in the Book of Life this Yom Kippur!

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AB 1897 Signed Into Law; CA’s Employer Witch-Hunt Continues

October 1st, 2014 2 comments

A good doctor looks for symptoms, and patterns in the symptoms, to diagnose and treat illness, right?  So allow this humblest of Juris doctors to do the same with that self-mutilating patient of ours, California.

California saw a steady stream of business leaving for better climates over the last several years.  It even got so bad that Governor Rick Perry traveled all the way from Texas to encourage the flow of businesses and employers from the Golden State to the Lone Star.  Later, California lost Toyota to Plano, Texas, along with its 2000 jobs.  Now, it looks like Tesla decided to shock California by electing Nevada as the state to house its factory and 6,500 high-tech manufacturing employees.

Why is this happening?  Why does business after business, employer after employer, ranging from low-tech to high, want to leave California?  Oh yeah… take a look at the bill signed by Governor Brown this past Sunday: AB 1897.

AB 1897, provides that when one entity contracts with another entity to provide labor, both entities shall be liable for the labor law violations (and failure to secure workers’ compensation insurance) of the actual employer.

So if Company A provides labor to Company B, but Company A failed to adequately insure for workers’ compensation, or provide proper payment of wages, Company B “shall share with [Company A] all civil legal responsibility and civil liability for all workers supplied by [Company A].”

Fortunately, the law does provide some exemptions, including those entities that hire fewer than 5 workers through a labor provider company, and where there are fewer than twenty-five employers/workers provided for the company.  However, if you’re on the bigger side of business, you are suddenly providing insurance for the failures of any company with which you contract for labor.

Now, one might ask, if you have to investigate, insure, and supervise the company you just hired to handle all the HR stuff for you, why did you hire them at all?  AB 1897 provides, effectively, that the employer cannot escape the administrative cost of complying with all labor laws by contracting compliance to another entity.  In other words, dear readers, the cost of doing business in California has just gone up once again, and the incentives for moving out have gone up with it.

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