Darwin Proved Wrong? No Evolution for WC Fraudsters

September 15th, 2014 No comments

You know, dear readers, Darwin’s theory resists challenges based on biology, geography, faith, and even economics.  Darwin’s theory of natural selection endures time and space, and resists the barriers of language.  But there is one fatal flaw to Darwin’s theory – that theory that suggests that some traits die out in a gene pool and others, more adaptable to the environment, become more common with each generation – workers’ compensation.

You see, if Darwin’s theory were truly correct, each year we’d see better and better criminals; more sophisticated and refined frauds.  Instead, we get cases like Mr. Leonel Gonzalez.  Mr. Gonzalez recently plead no contest to one felony count of Workers’ Compensation Fraud, and is set to be sentenced to 180 days in county jail, 3 years of probation, and to pay restitution of nearly $32,000.

An EAMS search reflects that Mr. Gonzalez alleged an injury to the back, sustained in 2006, while employed in that far-away land known as “Southern California-stan-berg-land.”  But, despite claiming to being disabled, surveillance video caught him working out with a punching bag, doing martial arts, planting trees, and even shopping at Costco.  I think it is very important to point out that your humble blogger has no objections to shopping at Costco, although the intersection of Costco’s bulk-sales and their funeral department does present a somewhat grim image.

Now, your humble blogger would have expected Darwin’s theory to take effect quickly in our workers’ comp fraudster gene pool.  Haven’t we seen enough cases of people being videotaped while engaged in strenuous physical activity, sometimes on the same day as they had told a physician or testified at a deposition to near-paralysis?

Hopefully, this blog won’t be cited as any authority in the continuing contentions of appropriate school curriculum, but it should remind us that, despite Mr. Darwin’s valiant efforts in explaining the origin of species, the fraudsters aren’t getting any smarter.  It is diligence on the part of adjusters and investigators that sets up the case, and it is a zealous devotion to justice on the part of prosecutors that results in convictions, restitution orders, and the total invalidation of the “injured” worker’s credibility in a workers’ compensation case.

Have a good week, dear readers; your humble blogger intends to do the same.

darwin awards

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[Possibly] Tossed Soup Enough to Defeat Initial Physical Aggressor Defense

September 12th, 2014 No comments

Your humble blogger has had occasion to touch upon the initial physical aggressor defense in the past.  That great defense, the one found in Labor Code section 3600(a)(7) provides a bar to workers’ compensation benefits where the initial physical aggressor was the allegedly injured worker.

Ponder, if you will, the recently writ denied case of Mattas v. Shoker Trading Corp.  Applicant, a car wash employee, while on his unpaid lunch break, got into an altercation with a customer.  There was some history there of past unpleasant encounters with that customer at the car wash… and the rest gets hazy.

Applicant alleged that the customer threw a coup of hot soup in his face, and then attacked him.  The customer, by contrast, claimed that the applicant attacked him first.  The defendant-employer, of course, raised the defense of “initial physical aggressor,” claiming that applicant initiated the altercation.

The matter proceeded to trial, and the record was, shall we say… spotty at best.  The video provided by the employer was graining and didn’t offer much in terms of identifying either the customer or the injured worker.  The events leading up to the fight could be taken to be the customer throwing soup at the injured worker… or the customer making a slight hand gesture with his hand.

The witnesses weren’t very helpful either, apparently, being vaguely aware that a fight occurred.

All in all, after the trial, the WCJ held that defendant failed to meet its burden to prove up the defense, reasoning that, at best, it was unclear as to who the initial physical aggressor was.

The WCAB, in a split panel, on defendant’s petition for reconsideration, took another position (while reaching the same conclusion).  The WCAB noted that the WCJ’s summary of the video offered at trial reflected that the customer was agitated and kept getting closer to the injured worker.  This was sufficient to make the customer the initial physical aggressor, in that he was acting in a threatening and intimidating manner.

But, there was a dissent.  The WCJ noted that there was no evidence of actually aggressive language or gestures.  While the video may lend itself to that interpretation, the applicant never testified to being afraid or feeling threatened, and absent such testimony, you might need actual physical aggression initiating from customer.

I don’t think it’s the surprise of the century that your humble blogger agrees whole-heartedly with the dissent.  Generally speaking, most legal tests require a subjective and objective component: assault is placing a person in a reasonable fear of an imminent battery, so how could one assault a person by pointing a gun the person knows is unloaded at them?  How could this applicant be the victim of someone else’s initial physical aggression when there was no physicality and no aggression?soup_nazi

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IW’s Supervisor and Cause of Psyche Claim Barred from IW’s Deposition

September 10th, 2014 4 comments

Some of my beloved readers (and less-than-beloved readers) will likely recall a blog post on the Yera v. J.C. Penny matter, in which the WCAB ruled that simply claiming to be “intimidated” by a supervisor’s presence was insufficient grounds for not attending a deposition.  Applicant showed no reason for why she would be intimidated, and should have sought a protective order right away, rather than simply refuse to attend.

Well, now let me show you the flip side of the situation.  In the case of Foroughi v. County of San Bernardino, applicant claimed to have sustained an industrial injury to the psyche, allegedly caused by her treatment at the hands of her supervisor for the past five years out of a 25-year-tenure.  When that supervisor appeared at applicant’s deposition as the employer representative, applicant broke down crying and shaking, and the deposition was terminated.

Applicant sought a protective order, seeking not only applicant’s supervisor, but also applicant’s supervisor’s supervisor from appearing at the deposition, supported by the report of her treating physician, who opined that “having [applicant’s] employer present at her deposition would be extraordinarily detrimental to her mental health”.  The WCJ denied the petition for a protective order, but the WCAB granted applicant’s petition for removal, reasoning that the employer could still have another representative present, and thereby the “party” defendant could attend the deposition.

Defendant’s petition for a writ of review by the Court of Appeal was denied.

Now, your humble blogger can’t help but disagree with the findings of the WCAB.  I’ve had the benefit of having employers attend applicant depositions with me, and it is an exceeding useful resource to have someone who is personally familiar with all the facts in a case present to help guide follow-up questions.

The benefit to the employer in attending the deposition is not just to have a fun field trip or to get a live performance of the latest legal drama about lawyers who really care.  The benefit to the employer in attending the deposition is to be able to assist the attorney in asking questions on the spot, with follow-ups, specific dates, and the names of specific witnesses, things that could be explored prior to an applicant’s deposition, but not nearly as effectively: who knows what curve balls the applicant will send your way?

There are less restrictive protective orders that are available that could have afforded the defense the benefit of having the knowledgeable employer representative present, and still avoided a face-to-face between the injured worker and her alleged oppressors.

Your humble blogger, for example, takes his depositions on his laptop.  The entire deposition could have a phone conference for the employer to listen in, and use a chat function such as Google Chat or Skype to privately communicate questions to the defense attorney to ask.  Sure, this may take longer, but what applicant’s attorney would object to a bigger 5710 fee?

Don’t get me wrong, dear readers: I fully sympathize with a person who has had a 5-year stint of traumatic psychological treatment at the hands of a supervisor, especially after a twenty year incident-free tenure.  But we’re not dealing with that here – we’re only dealing with the allegations of that scenario, and the purpose of discovery is to guide us to what we’re REALLY dealing with.  Meanwhile, the defendant is still entitled to a legal defense.

In the alternative, perhaps your humble blogger will start seeking protective orders to exclude the applicant’s attorneys that give me particularly bad headaches from depositions…

Happy Hump Day, dear readers, keep up the good work!

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PSA: It May Be Illegal to Cash Your Dead Aunt’s WC Pension Checks for Ten Years

September 8th, 2014 No comments

If you’re not a big fan of the antics of Justin Bieber, you might not be a big fan of some of his background singers either.  Apparently, Vernon Burris, a background singer for Mr. Bieber, is in some hot water over taking care of his disabled aunt.

Mr. Burris may even benefit from Mr. Bieber’s deposition tactics.

Deborah Wilkes, a former employee for Los Angeles County, had received a lifetime pension award, and her sister, Dolly Burris Bennett, was taking care of her.  Well, while Ms. Wilkes passed away in December of 2004, but Vernon Burris continued to sign her pension checks and deposit them into his mother’s account.  It is estimated that $165,000 was improperly collected from Los Angeles County.

Now, Mr. Burris managed to sing his way into an arrest in 2014, the authorities swooping in Justin time (see what I did there…? Because he worked for Justin Bieber…?)  So from the time of death to when a tip came in, LA had been paying out for about ten years!

Now, dear readers, before you close this blog post off from your computer screen and your thoughts, writing it off as a filler post and turning back to thoughts of your weekend, bear with me just for one minute more.

What procedure do you have in place for your pension cases, ranging from 70-100% permanent disability, to guarantee that the person receiving the pension is still entitled to it?  What program do you have to regularly check to make sure your closed cases don’t have potential to be reopened for a reduced award?

Diligence is expensive, and when dealing with someone honest, diligence may seem like an unnecessary expense.  But, the sad truth is that we don’t always deal with people who are honest.  Some people lie to get a workers’ compensation award.  Some people lie to keep the award.  Perhaps it makes sense to periodically check up on our semi-closed cases to see if it’s time to put away the checkbook.

Chins up, dear readers!  It’s going to be a good week – your humble blogger can feel it!

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WCAB: Actually, RNs CAN Delay UR To Request More Info

September 5th, 2014 No comments

Some of my readers will remember the recently posted-of decision the Newton case, in which the WCAB panel of commissioners held that a registered nurse’s signature on a utilization review delay notice rendered the utilization review invalid.

Well, it looks like the WCAB may have reconsidered its position in Newton v. Jack-in-the-Box.

Originally, the WCAB ruled that defendant’s UR was defective because the delay notice issued by a registered nurse was in violation of Labor Code section 4610(e) (“[n]o person other than a licensed physician who is competent to evaluate the specific clinical issues involved in the medical treatment services … may … delay … requests for authorization of medical treatment…”)

When Ms. Newton’s requested treatment was delayed for a few days to obtain more information, and said delay notice was signed by an RN rather than a doctor, the WCAB found the ultimate UR denial of the treatment to be invalid as untimely.

However, when Mr. Jack Box found out about this, he was not too pleased, and got on the phone with his lawyers, demanding an immediate reversal.

Jack_in_the_box

A reversal it was! Defendant objected to the WCAB’s Notice of Intention to Award Medical Treatment, pointing out that the RN’s request for additional information was not the same thing as a “delay” in treatment, but rather a delay in UR’s determination.

Relying on Labor Code section 4610(d), the WCAB noted that the employer or insurer can request additional information to determine whether or not to authorize the treatment.  Furthermore, California Code of Regulations section 9792.9.1(f) provides that a non-physician reviewer can request the information.

So, there you have it folks, for the time being at least, registered nurses can continue to issue the delay notices while additional information is requested.

Have a great weekend!

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Absent Dubon, WCAB Can Only Grant New IMR Decision

September 3rd, 2014 2 comments

Hello, my beloved readers!  As you return from your Labor Day weekend, relaxed, refreshed, and ready to take the Workers’ Compensation system by storm, your humble blogger greets you with news of a recent panel decision REJECTING jurisdiction over IMR.

I’ll have you know, first and foremost, that after last week’s post discussing the statutory requirement that IMR appeals be verified, your humble blogger was beset by a mob of devoted readers demanding more posts addressing the IMR appeal process.  Phone calls were received, e-mails were read, and borderline threatening messages were communicated.  Well, who am I to say no to such passionate voices?

As you will recall, Dubon was an en banc opinion in which the WCAB ruled that applicants can use expedited hearings to challenge the validity of the UR process, and thereby escape IMR.  The test appeared to be whether the UR decision suffers from a material procedural defect that undermines the integrity of the UR decision.

In the case of Stevens v. Outspoken Enterprises, Inc., applicant sought to challenge the IMR denial of a treatment request rejected by the Utilization Review process.  However, for reasons not apparent from the panel opinion itself, it appears that no Dubon challenge was mounted (as the WCJ noted in her report: “there have been no allegations of material procedural defect or untimeliness in the UR decision”).  So, the WCAB was left with a challenge to the IMR decision based on (1) the fact that IMR is unconstitutional; and (2) the IMR determination is deficient and does not constitute substantial evidence regarding medical necessity.

The WCAB’s response was to tell applicant that he was shopping for a hotdog in a hardware store.

The WCAB has no authority to declare statutes unconstitutional or to overturn legislation.  Additionally, the legislature has allowed for a very narrow few reasons to overturn an IMR decision, and the exhaustive list of those reasons is provided in Labor Code section 4610.6(h):

  1. The administrative director acted without or in excess of the AD’s powers;
  2. The determination of the AD was procured by fraud;
  3. The IMR reviewer was subject to a material conflict of interest;
  4. The determination was the result of bias on the basis of a series of protected classes; or
  5. The determination was the result of a plainly erroneous express or implied finding of fact, provided the mistake of fact is a matter of ordinary knowledge based on the information submitted for review and not a matter that is subject to expert opinion.

And, here’s the best part: even if you succeed, at the end of the yellow brick road is what you’ve had all along: another IMR!  As goes the panel opinion: “the remedy provided for any successful appeal of an IMR pursuant to section 4610.6(h) is limited by section 4610.6(i) to the conduct of another IMR” and something tells your humble blogger that more IMR is not what any applicant is looking for.

So, why didn’t the applicant go full Dubon on this case?

Never Go Full Dubon

Your humble blogger can only speculate.  In speaking with applicant’s attorneys here and there, it appears that the general policy is to always file an expedited hearing on a UR denial and make the defendant waste funds on its defense.  The familiar logic of scorched Earth appears to be that, eventually, defendants will prefer to pay for the medical treatment rather than to pay to defend it, and that today’s bottom line will trump tomorrow’s encouragement of frivolous claims.

My regular readers know how I feel about paying the Dane’s Geld, and so I can’t help but applaud the defendant in this case for its staunch defense of the IMR ruling.  Well done!

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Happy Labor Day!

September 1st, 2014 No comments

Alright, dear readers, you’ve made it!  After countless excuses and apologies to friends, family, and neighbors, you’ve escaped being trampled at the mall, avoided being burned at the BBQ, and you’ve even skipped having your bee sting allergy triggered at that one last picnic of the summer.

bundy bbq

And here you are, sitting in the peace and quiet of your office, with your files to keep you company and your computer screen glowing warmly at your overworked and under-rested eyes.

Breathe it in, dear reader, you’re in the workers’ compensation industry!

In the alternative, if you’re reading this on Tuesday, then odds are you took the day off, so Happy Labor Day to you!

As we all know, Labor Day was originally part of the union movement in an effort to keep the working man from work, at least on the first Monday in September.

Well, thanks to a handful of workers’ compensation applicant attorneys and their eager-to-please treating physicians of choice, there are now more days than one when the working man can be kept from working, for reasons ranging from paper cuts to hurt feelings.

If you’re among the fortunate masses taking the day off, cheers! Otherwise, dear reader, let’s you and I turn back to our workload, and I’ll see you back here on Wednesday!

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IMR Appeal Must Be Verified; 20 Days Granted to Cure Defect

August 29th, 2014 No comments

Greetings, dear readers!

As much as it pains your humble blogger to allow his oft-cited and sometimes cursed pages to fall silent for so long a time, justice will not serve itself, and your humble blogger is always ready to answer its calls.  (Fear not, dear readers, your subscription fees are being refunded even as you read this…)

Anywho, I have returned, in this case, to help the Workers’ Compensation Appeals Board deliver a very important message: verified means verified.  By contrast, “verified”, as used by the Labor Code and the California Code of Regulations, does not mean “not verified”.

The case on point is that of Torres v. Contra Costa Schools Insurance Group.  Mr. Torres sustained a few injuries and was the receiving medical benefits, including but not limited to Duragesic patches (pain meds).  At one point, a UR review denied authorization for more patches, as it had requested (but not received) additional information on why this particular medication was being recommended.

A UR denial went on to an IMR review, which held firm the reported 80% UR affirmation rate, and likewise denied the treatment.

Not deterred, applicant pursued the additional remedies available under Labor Code section 4610.6(h), seeking to appeal the determination of the administrative director (IMR).  However, applicant failed to provide a verified petition, as required by 4610.6(h) (“[a] determination of the administrative director pursuant to this section may be reviewed only by a verified appeal…”).

So, then, dear readers, what’s to be done?

Defendant sought dismissal of this appeal, as applicant had failed to provide a verified appeal.  After all, California Code of Regulations section 10450 provides that “[a] request for action by the [WCAB] … shall be made by petition” (subsection (a)); and “[a]ll petitions and answers shall be verified under penalty of perjury … [a] failure to comply with the verification requirement constitutes a valid ground for summarily dismissing or denying a petition…” (subsection (e)).

Having weighed the issues, the WCAB decided to provide a “significant panel decision,” allowing applicant 20 days to submit a verified petition to challenge the IMR determination.  Now, of interest here is that the WCAB acknowledged that a failure to verify a petition is not automatic cause for dismissal, so long as the submitting party cures the defect within a reasonable amount of time after it is pointed out.

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Furthermore, as this is all relatively new, some slack has been cut, especially considering the ever-present interest of deciding cases on their merits rather than on legal technicalities.

If the WCAB is going to allow the party to cure this defect on a regular basis, then perhaps the workers’ compensation community needs to approach this in a new way.  Instead of allowing an unverified petition to be dismissed, perhaps the parties should immediately point out the defect in writing as soon as the petition (or answer) is received.

That way, should this pointed-out defect be ignores, or of procrastination should get the better of your opponent, you can point the fact out to the reviewing Judge, who will then have a basis to dismiss the unverified petition.

Just a thought, dear readers, just a thought.

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4050 Exams – Besides the Scalple, Is There a Point?

August 20th, 2014 No comments

How would you like to send your injured worker to a physician of your choice for a thorough examination?

doctor glove meme

Labor Code section 4050 requires the applicant to submit to evaluations by a physician of defendant’s choice “at reasonable intervals” and at defendant’s expense.   However, are these reports of any use?

First off, let’s talk about the good.  Section 4050 allows you to get an injured worker before a physician you trust, and get a thorough evaluation going.  What’s more, it’s an opportunity for you to have your own expert witness prep your attorney for the cross examination of a QME or AME that might decide to get creative with his or her own report.  Although we defense attorneys possess “Juris Doctorate” degrees, we typically welcome all the help we can get with the medical mumbo-jumbo.

In fact, in the panel case of Lopez v. Target Corporation, from way back in 2012 (you remember 2012, don’t you? The year before SB-863 took effect in full…) held that the defense is entitled to compel applicant’s 4050 evaluation specifically so that the defense expert can assist in the preparation of the evaluating physician’s cross-examination.

Here’s another fun fact: if you suspect your injured worker of lying, a 4050 evaluation may provide another opportunity for him or her to get caught up in his own web, especially when combined with some well-placed sub rosa.  And while the WCAB may not be interested in reading a report (or viewing a video-taped evaluation) which comes from a 4050 exam, the local law enforcement folks should have no such reservations.

Additionally, section 4053 provides that “[s]o long as the employee, after written request of the employer, fails or refuses to submit to such examination or in any way obstructs it, his right to begin or maintain any proceeding for the collection of compensation shall be suspended.”  Your humble blogger doesn’t need to tell you the benefits of a missed appointment.

And, on top of everything else, this is a guaranteed spot for your sub rosa guys to meet the injured worker and follow him or her around.  Wondering where he’s working? Wondering what she’s doing with her spare time?  Now you’ll know where and when the injured worker will be for your hounds to pick up the scent.

Now, let’s talk the bad.

California Code of Regulations section 35(e) purports to limit the reports that can be sent to a PQME, namely prohibiting “any evaluation or consulting report written by any physician other than a treating physician, the primary treating physician or secondary physician, or an evaluator through the medical-legal process in Labor Code sections 4060 through 4062, that addresses permanent impairment, permanent disability or apportionment under California workers’ compensation laws, unless that physician’s report has first been ruled admissible by a Workers’ Compensation Administrative Law Judge.”

In Marciano v. Ameriflight, Inc., a 2013 panel case, the WCJ ordered that a 4050 report shall not be provided to a QME because section 35 is the authority on what documents can be sent to a PQME,  citing § 35(e).  The WCAB adopted and incorporated the WCJ’s report.

But, don’t get discouraged.  35(e) provides that the WCJ can still rule on admissibility, and if the report itself merits it, perhaps just such a ruling could be obtained (hope springs eternal).

What do you say, dear readers, have you had any luck with 4050 exams?

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Claim of Post-Robbery Psyche Injury Alleged Fake

August 18th, 2014 No comments

Alright, dear readers, we have a new champion for the crown of the most ridiculous workers’ compensation claim.

As you well know, each claim is judged by its own penchant for insanity, absurdity, and even audacity, or as might be heard around your humble blogger’s household, Chutzpah!

Previously, this blog observed with wide-eyed amazement some of the claims made against employers and insurers in California, including demands for industrial fertility treatments, an applicant marrying his wife to be able to invoke spousal privilege against her testifying, and even claims of disability while competing in Mixed Martial Arts competitions.

Well, here’s your humble blogger’s new champion if, of course, all charges are proved beyond a reasonable doubt: Aurora Barrera.  Ms. Barrera was apparently employed at a bank and suffered psychological injuries when she was held hostage by two men, forced to wear a bomb, and told to go into a bank and rob it.  She received workers compensation benefits of about $35,573 and medical benefits as well.

Now, calm down, dear reader, I know what you’re thinking: “Not only is this poor woman traumatized, but now my humble blogger is publicly ridiculing her on his fantastic blog that everyone should read.  I demand a refund!”

It’s fake, dear reader, it’s all fake! Not only did she conspire with the bank-robbers, but she knew the whole time it was a fake bomb.  SHE IS A BANK ROBBER!

And, not content with merely robbing the bank, she also elected to rob the workers’ compensation system by claiming a psychiatric injury as a result of the crime she herself committed.

Picture, if you will, John Smith, convicted by a jury of his peers for murdering his parents, and when asked for reasons that he should receive leniency, he, weeping, tells the Judge, “But your honor, I’m an orphan!”

Congratulations to the fraudster on the new title!  Every time a workers’ compensation fraudster gets convicted, your humble blogger cheers… you can (wait for it…) bank on it!

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