Panel Disputes Now Reconsideration Material (Instead of Removal?)

December 7th, 2016 No comments

Hello, dear readers!

It’s a wonderful day in the world of workers’ compensation.  Benefits are being denied, UR is being slowly but diligently upheld by IMR, and your humblest blogger has another blog post for you!

Today’s post is the case of Maciel v. RP Automotive, Inc., in which the WCJ ordered a new QME panel due to defendant’s alleged ex parte communication with the then-QME, only to recommend defendant’s petition for removal be granted on the basis that applicant’s counsel did not assume representation until after the letter in question had been sent, and said letter was sent to and received by the then-unrepresented applicant.  (Need another cup of coffee?  Basically, defendant copied in-prop-per applicant with a letter to the QME, applicant’s counsel gets retained and complains of ex-parte, WCJ determines that Order granting new panel should be rescinded).

Ok, everything is peachy, right? Why is that blogger guy wasting my precious internet time on this drivel when I could be looking at pictures of cats or researching how to handle a difficult doctor (the answer to that one, dear readers, is to bring a big bushel of apples to the doctor-depo!)

Defendant files for removal.  The WCAB reviews this and re-designates it a petition for reconsideration.  Are you getting this?

For years and years and years, many practitioners KNEW that QME panel disputes were NOT to be the basis of reconsideration petitions, and that the consequential delay in resolution and stripping the WCJ of jurisdiction, were effectively a bad-faith delay tactic.  Petitions filed petitions for “reconsideration and/or removal” and then sheepishly said “I dunno” and shrugged.

In fact, the WCAB panel held, en banc, that a dispute of a panel was proper for a petition for removal in Messele v. Pitco Foods, Inc (remember the one about how to count the first day for requesting a panel?)

Now, this panel of commissioners is opining that “[t]his requirement gives the opinions of the QME an elevated status that can be characterized as ‘critical’ to determination of the underlying issues in a case… From this perspective, a WCJ’s decision that resolves whether or not to allow a replacement QME panel in the determination of a critical issue, and a Petition for Reconsideration is the appropriate vehicle to challenge the determination.”

So, dear readers, what do you think?   Going forward, are you going to file petitions for reconsideration for panel disputes?  If nothing else, the Maciel opinion should be enough justification to avoid the imposition of sanctions for seeking reconsideration instead of removal.

Happy Hunting!

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WCJ, WCAB, and COA Confirm: Ogilvie Rebuttal Cannot Rely on Non-Industrial Factors

November 30th, 2016 No comments

Alright, readers – here we are.  It’s Wednesday, your humble blogger has narrowly escaped another effort at disbarment, and we’ve got another blog post to muddle through!

Do you guys remember that Ogilvie case?  That’s the one that said that if the industrial injury impacts the injured worker’s future earning capacity in a different way than what is offered by the rating schedule, one could, possibly, rebut the presumption that the rating schedule is correct? (I know there’s more to it than that, but that’s the gist, no?)

Ok, so the applicants’ attorneys took the Ogilvie case and started hiring hacks and crooks to say that everyone who suffers a paper-cut is 100% permanently disabled.  On occasion, some vocational rehabilitation reports even went into such specifics as the injured worker’s education, skills, impact of industrial injury, and the availability of work with only a minimal use of “copy-paste”.

Unanswered questions persisted – does the rebutted DFEC equal the PD amount (so that a 50% diminished future earning capacity equals 50% PD)? Or, perhaps, that a 50% post-rebuttal DFEC is just a multiplier for the whole person impairment?

Well, fortunately, we got the Dahl decision in 2015, in which the Court of Appeal put a stop to all the nonsense – if you’re unfamiliar with the Dahl case, a very humble and witty summary is available here.

So, the ripple effects of both Dahl and Ogilvie continue.  Recently, the Court of Appeal denied review in the case of Edwards v. Forbes Security Co.

Right off the bat, I would point out that the Edwards case involves a 2011 injury – since the DFEC element to rating PD was eliminated by SB-863 for post 1/1/13 injuries, presumably, both Ogilvie and Dahl are not relevant for post 1/1/13 cases – but we’ll see!

In any case, applicant claimed that the permanent disability assigned to him by the AME was insufficient, because applicant’s poor education and history of unskilled work made him unamenable to rehabilitation.

The WCJ disagreed – relying on Ogilvie, the WCJ ruled that rebuttal is only warranted when the industrial injury makes an injured worker unamenable to rehabilitation.  The fact that applicant’s non-industrial conditions and history precluded rehabilitation did not warrant a rebuttal.

Further, I would remind my dear readers of the language of Ogilvie III which specifically held that “nonindustrial factor such as general economic conditions, illiteracy, proficiency in speaking English, or an employee’s lack of education” cannot be used to show that an injured worker is not amenable to rehabilitation.

Applicant’s petition for reconsideration (and the following petition for writ of review) argued that the WCJ misinterpreted the Dahl decision, to which the WCJ replied that Dahls was “a four-letter word which does not appear anywhere in [his] Opinion” and rightly so – one need not discuss the merits or application of Dahl to read the very plain language of the Ogilvie decision.

In any case, the WCAB adopted the WCJ’s opinion and the Court of Appeal denied review.

However, parties can rely on Dahl to bolster the findings of the WCJ.  As my beloved readers will recall, the Dahl Court dealt with a vocational rehabilitation expert who used a hypothetical class of workers who had nothing to do with the applicant and also claimed that amenability to rehabilitation is irrelevant to his determinations when that is precisely what Ogilvie called upon practitioners to discuss!

Another takeaway from this case is a friendly reminder for us all that applicant carries the burden of rebuttal and must show why applicant is entitled to retire to the Bahamas.  And, frankly, if applicant can carry so heavy a burden, that shows that he or she has a tremendous lifting capacity which negates any claims of injury (just a joke, dear readers…)

Alright, dear readers – back to the grind!

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Australia: Kangaroos; Boomerangs; and Organ 3D Printing Facilities!

November 28th, 2016 No comments

Happy Monday dear readers!

Are you well rested and over-fed from your Thanksgiving break?  Did you survive the terrors of Black Friday?  Is there anything left in the bank account with which to meet Cyber Monday?  Does anyone think these so-called “sales” are just frauds perpetrated against the citizenry?

Anywho, today’s story comes to you straight from the outback, and will be of particular importance to those of us who survived Thursday’s revelries needing a new liver, a new stomach, or, depending on how the awkward family discussion of recent political events went, fresh brain tissue.  It may also be of interest to us who note that workers’ compensation costs are often drive, at least in part, by medical treatment.

Herston Health Precinct in Queensland, Australia, has announced that it will be installing a biofabrication institute to “image, model[,]and manufacture 3D patient-specific tissues under one roof.”

The ultimate goal would be to 3D print tissue and organs to eliminate the delay of organ transplant waiting lists (and the related complications involved in organ transplants in general).

So, what does this mean for us in the workers’ compensation world?

Aside from the human aspects of wanting injured workers to receive high-quality medical care, there is the financial incentive as well: injured worker goes back to work and everybody wins; effective medical care for serious injuries becomes cheaper to provide and maintain and everybody wins.

We’re already seeing a growing potential for eliminating blindness and for mitigating the impact of lost limbs.  Injuries resulting in serious organ damage and the need for bone and skin replacement might be significantly mitigated if such centers are made cost-effective and readily available.

The old saying goes that the best time to plant a tree is 20 years ago, and the second best time is today.  In 20 years, which trees will we wish we had planted today?  How will workers’ compensation continue to function when the more dangerous jobs are being replaced by automation on the one hand, and industrial injuries are “cured” rather than just having their symptoms relieved or mitigated by medical advances on the other?

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Happy Turkey Day – Care for Another Blast from the Past?

November 23rd, 2016 No comments

Hello, dear readers!

Your humble blogger bids you a very happy early Thanksgiving.  May tomorrow be a day of rest, thoughtful reflection, and peace for you.  As the saying goes, “comparison is the thief of joy,” so let this Thanksgiving be a day when we don’t think about what others have that we do not, but what we do have.  We’ve come a very long way from celebrating finding bitter berries while dodging saber-tooth tigers.

Anywho, with that thought out of the way, I thought we might all look back at another “blast from the past.” The case is Pohler  v. Cory, and hails from 1941!

Defendant had a turkey ranch on about 153 acres where he had more than 2000 birds per year.  Right before Thanksgiving, Cory would hire help to make the birds… well… “festive” by engaging in a maneuver called a “stick” – the approved procedure for killing the birds.  Your humble blogger doesn’t know the “stick” method very well, but would be happy to take care of any Wild Turkey that is of inconvenience to his beloved readers.

Pohler cut his index finger while performing a “stick” and his finger became infected, necessitating amputation.  While he claimed that he was an employee, Cory claimed that he was just being out for the job, and that he wasn’t going to let Pohler gobble gobble up his profits (that last part is my contribution to the story).

The Industrial Accident Commission held that, as a poultry raiser, Cory and his would-be employees were excluded from the workers’ compensation code by virtue of Labor Code section 4250, because his earnings for the preceding year did not reach $500.

Have you ever heard of Labor Code section 4250? Well, it was repealed in 1959, and Lexis only goes back to 1991, so I can only assume it allowed poultry growers to fly the workers’ compensation coop.order-a-pizza

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Sheriff Deputy Charged w/ WC Fraud over CrossFit!

November 11th, 2016 No comments

Happy Friday, dear readers!

I hope everyone out there is safe, finding the roads clear of obstruction.

I will refrain from commenting on the events of this week, because unlike Facebook and LinkedIn, this blog is one where the word “election” means Labor Code section 5500.5 and politics refers to parasitic organisms residing in cities (get it? Polis and ticks?)

Anywho – do you guys know what CrossFit is? Well, apparently, in addition to being an exercise method, it’s also a way to snare workers’ compensation fraudsters.

An OC deputy has been charged with perjury and insurance fraud for engaging in Cross-Fit while on TTD.

The accused, who shall remain nameless unless there is an actual conviction,  tripped over a fire-hose and injured his back, and then added claims for his shoulder and neck.  While collecting TD benefits, apparently, and being accommodated for a 10-pound push/pull/lift restriction, also engaged in several months of CrossFit, which involved, among other activities, 200 pound lifting exercises.

So, odds are, the Sheriff’s office was running routine sub rosa, or a co-worker tipped off the department.  In either case, the employer got evidence of some sort (possibly sub rosa), and then got a deposition transcript denying the truth, and out came the conviction.

If only it were that easy for private-sector employees, ones without any affiliation with law enforcement, to get fraud cases picked up and prosecuted.  But alas, California’s employers are only guaranteed the right (and non-waive-able obligation) to fund the Department of Insurance – it is up to prosecutorial discretion as to whether charges get filed.

In your humble blogger’s experience, it really varies county-by-county: some counties don’t place a high priority on prosecuting employee fraud, while others do.

What are the odds that the accused will claim that CrossFit was just part of his doctor’s intense rehabilitation?  Or that the instances of CrossFit exercise from May to November of 2015 were just a long string of “good days”?

Stories like these, dear readers, make your humble blogger want to file a psyche claim…

 

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Post 7/1/13 Dates of Service Have 18-month SOL

November 7th, 2016 No comments

Hello, dear readers!

Friday has come and gone, the weekend is like dust in the wind, and here you are, seated firmly in front of your computer, tablet, or smart-phone, hopping out of the frying pay of doing work and into the mind-numbing flame of reading your humble blogger’s workers’ compensation ramblings.

But fear not, because todays’ post is actually good news!

Recently, the WCAB denied a lien claimant’s petition for reconsideration in the case of Escamilla v. Pelican Products Inc. case.  (Just a side note, dear readers: your humble blogger has recently been accused of being unfairly hard towards lien claimants, who bravely and generously provide medical care to injured workers when their employers and insurers won’t.  Well, don’t buy into that! Most of the lien claimants we deal with in wrapping up a case are repeat players: they know about the MPN, they read and ignore the objection letters, and they keep doing what they do on the presumption that they can litigate and get some money.  No sympathy will be found for them on these internet pages.)

Basically, lien claimant was complaining that an 18-month statute of limitations was applied to bar its lien (as per Labor Code section 4903.5(a)) when the lien claimant would have much preferred the 3-year statute of times past.

The commissioners were not persuaded.  When services are provided after July 1, 2013, the 18-month statute of limitations applies.

Now, here’s a thought – 4903.5(a) provides that “a lien claim for expenses as provided in subdivision (b) of Section 4903 shall not be filed after three years from the date the services were provided, nor more than 18 months after the services were provided on or after July 1, 2013.”

One of the things your humble blogger has encountered is a list of dates of service, with the last date of service within 18 months of the filed lien, and the inevitable argument that so long as the last date of service isn’t 18 months behind the lien, the entire bill is safe.  By contrast, I would think the defense would take the position that any date of service more than 18 months older than the lien is time-barred.

The panel decisions, unfortunately, haven’t been much help in this regard.  I would list them here, but I have no interest in doing legal research for the benefit of lien claimants, so you’ll just have to take my word on it.   From my research, at least, the panels have consistently found that lien claimants have 18 months from the last date of service provided for the whole set.  However, until there’s binding authority, I would submit that defendants can continue to make the argument that any services 18 months older than the filed lien are time-barred.

Alright dear readers – that’s it for me.  See you Wednesday!

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WCJ; WCAB; COA – all uphold that IMR can be late and still binding

November 4th, 2016 No comments

Happy Friday, dear readers!

Your humble blogger congratulates you on surviving another week – one riddled with Halloween trick-or-treaters and the final stretch of the Presidential election.  (Your humble blogger is, of course, writing in “giant meteor” in an effort to end it all…)

Anywho, I have some news today that’s fairly reassuring: it looks like the Court of Appeals’ decision in Margaris (IMR can be as late as it wants!) is being given due weight.

Recently, the Court of Appeal denied applicant’s petition for a writ of review of the WCAB’s reversal of a WCJ’s ruling that IMR is invalid if late.  Got that?

Ok, in case you’ve checked out for the weekend, it goes like this:

WCJ: IMR is late, but I still can’t award medical care!
Applicant: Oh yeah? I’ll show you… To the Recon Department!
WCAB: WCJ is right – even if late, only UR/IMR can award medical care.
Applicant: Oh yeah? I’ll show you… To the Court of Appeal!
CoA: Did I stutter? IMR CAN BE LATE!

Ok, so what happened in the case of Tyni v. City of Montebello?  Applicant sustained an admitted injury and his primary treating physician requested treatment that UR found to be unnecessary in a timely UR denial.  Applicant sought IMR and, when IMR did not render a decision 30 days of the application for IMR (the WCAB corrected this on reconsideration – it’s 30 days from receipt of the application and supporting documentation; see Labor Code section 4610.6(d)) he sought to invoke the WCAB’s jurisdiction to decide whether he should be entitled to the requested treatment.

At trial, the WCJ ruled that even if it is late, the determination is still confined to IMR, a ruling bolstered by the Court of Appeal in Stevens (somewhat in dicta) and Margaris as mentioned above.  Recon only reversed to correct the timeline as above, but otherwise upheld the WCJ: effectively, applicant’s request for treatment can linger for all eternity.

In this case, of course, the determination came some four months (rather than 30 days) after the application, but that is of no importance.

Now, I understand what some of my readers will say, either sincerely or sarcastically: how could this be a good system? How could employers and insurers reap the benefits of administrative delays while injured workers linger without their medical treatment?

Well your humble blogger has been told by some applicant attorneys that regardless how small or how big, now necessary or how wasteful, they will request IMR for every single denied UR to purposefully drive up costs and to clog IMR with a flood of requests.

“Settle with me now,” they say “or you’ll pay as much in IMR costs and compliance.”

Well, the rule of unintended consequences applies here too.  Guess what?  All those petty IMR requests that were initiated as punitive measures have clogged up the system to the point where even legitimately injured workers can’t have their treatment requests evaluated on time.  Even Procrustes had to eventually sleep in the bed he made.

Long story short, dear readers – it looks like there’s no inventive reason the WCAB is accepting for why IMR should be deemed invalid if untimely.  So let’s keep UR churning out timely and let IMR do it’s thing.

Have a good weekend!

 

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Restoring Eyesight to the Blind – Blindness No Longer to Cause Perm. Tot. Disability?

November 2nd, 2016 No comments

Happy Wednesday, dear readers!

A while back your humble blogger wrote about bionic arms; if bionic arms can effectively restore the use of one’s hands, should the presumption under Labor Code section 4662(a)(2) still apply?

Well Labor Code section 4662(a)(1) applies to “[l]oss of both eyes or the sight thereof” – what if eye sight could be restored medically?

Second Sight Medical has recently announced a successful procedure by which a patient was given the Orion 1 cortical prosthesis device and regained his sight.

“By bypassing the optic nerve and directly stimulating the visual cortex, the Orion 1 has the potential to restore useful vision to patients completely blinded due to virtually any reason, including glaucoma, cancer, diabetic retinopathy, or trauma.”

Let’s run the numbers real quick: if a worker loses both eyes and is awarded a life pension for total permanent disability at age 38, with a 40-year life expectancy, with a yearly income of $52,000, we’re looking at $666 per week in pension payments for 2080 weeks (40 years x 52 weeks per year).  $1,385,280 in pension payments, plus cost of living adjustments and all the in-home care one could expect with being presumed totally permanently disabled.

How much would an insurer be willing to pay for a medical procedure that would restore eyesight to the applicant, and possibly bypass the life pension?  How much would an injured worker give up to spend the next 40 years of his or her life seeing instead of being blind?

According to this interview, Medicare will reimburse the implant in 2017 at $150,000. (Additional confirmation here as well.)

Seriously guys… am I the only one who thinks this is amazing?

One thing to bear in mind is that in some cases, there will be less-than-scrupulous attorneys that will not give up a commuted life pension attorney fee, even if that means their clients will regain their sight.  You can’t get 15% of an ocular implant, even if you could get 15% of a life pension.  Perhaps that will provide defendants with an opportunity to reduce PD on the theory that applicant (by and through his or her attorney) is unreasonably refusing medical treatment.

If this becomes a regular thing, we’ll have one more shining example of how our Labor Code is drastically out-of-date with the realities of the ability of medicine to reverse the damage done by industrial injury.

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Non-Disclosure Agreements for WC C&Rs?

October 31st, 2016 No comments

Hello dear readers and happy Halloween!

Your humble blogger wishes you a very happy Monday morning.  By chance, did I cross paths with any of you wonderful folks on Friday, at the California Self-Insured Association conference in Walnut Creek?  If you haven’t attended one of these yet, I highly recommend them.  It is an informative conference and the presenters are excellent.

Anywho, at one point, one of the presenters was discussing the theoretical approach of settling cases by way of Compromise and Release even when the coverage/employment relationship continued.  In her experience, a C&R released reserves, reduced administration costs, and the feared consequence of the injured worker filing for another right to medical treatment or another 104 weeks of TTD was minimal.

One of the event attendees asked about what efforts are made to keep the injured and still-employed employees from bragging to co-workers and encouraging additional claims?  After all, in our deepest and darkest fears, we all imagine this conversation:

Worker 1: “Jim, is that your new Tesla out back?  How the heck can you afford a $100,000 car on our wages?”
Worker 2: “Easy, Marty – remember when I hurt my back helping my sister move last year?  I just told the boss it happened at work, got a big fat settlement check, and now I’ve got my Tesla!”
Worker 1: “If it’s that easy, I bet I can do it too!  I’m going to buy a llama farm with my settlement check!”

And then we wake up in a cold sweat and our loved ones remind us that everything is okay and it was only a dream…

Talk about a workers’ compensation spooky story!

Anywho, I got to thinking: can you enforce some sort of confidentiality agreement in a C&R?  I have seen such language inserted into the compromise and release, noting that confidentiality is a “material provision of this settlement” and that “breach of this material provision shall entitle defendant-employer to damages and the resignation of the injured worker.”  I’ve also seen separate agreements that are signed by the parties and not presented to the WCJ as part of the agreement.

How enforceable is this?  Do you think if the injured worker blabs to his co-workers about how much money he got, the WCJ would order a resignation?  Or perhaps disgorgement of the settlement proceeds?  What if a separate line item was specifically inserted into the C&R “of the $85,000 C&R, $10,000 is specifically allocated as part of the confidentiality clause, the sum of which will be disgorged for breach of this agreement…”

How would you even prove disclosure, absent a willingness on the part of the co-worker to testify?

Your humble blogger asked around, but the defense attorneys I consulted seemed to consider preparing separate non-disclosure or confidentiality agreements as a tool for the employer.  Perhaps a breach could result in some sort of disgorgement or termination in the civil arena.

What is your experience, dear readers?  If you C&R with a still-active employee, how do you keep him or her from telling tall tales and encouraging more claims, baseless or otherwise?  Are you prepared to litigate the resulting 132a claims for terminating an employee for discussing litigation in the workplace?  What if it was discussed over coffee before or after work started?

This is a legitimate question that needs to be properly addressed: the employer doesn’t want to be a piñata, but at the same time, there’s benefit to be gained from a C&R with a still-active employee.  It just might not be worth it if the injured worker is free to paint the employer as an easy mark for fraudsters.

Your humble blogger very much appreciates his readers for reading, but would also very much appreciate input.  What do you think, dear readers?

Folks on another note – please remember that some trick-or-treaters and their parents decide that very dark costumes are a good idea for going out at night.  Drive carefully!

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AB2883 Goes Into Effect 1/1/17; Escaping WC Becomes Harder…

October 21st, 2016 No comments

Happy Friday, dear readers!

Remember that wacky bill I wrote about previously, AB 2883 – The one that makes it harder for officers and business owners to opt out of workers’ compensation coverage? Well, California is a magical place.  In some states, bad ideas get shrugged off – state legislatures might even splash cold water on their faces and say “Come on, Phil, get it together – this is bush league!”  Well, in California, bad ideas are nurtured and grown into horrible ideas, at which point they are harvested and processed into laws.

Now that AB 2883 is law, going into effect January 1, 2017, the Department of Insurance has issued a press release advising insurers of the additional documentation necessary to maintain the opt-outs of owners and officers.  Presumably, failure to comply would make the owner or officer an illegally uninsured employer of him or herself.  Absent a falling out or a very disgruntled officer… who would file the claim?

Anywho, in light of other news, namely the $34.9 million issued as grants to fight workers’ compensation fraud, it made your humble blogger realize something: there are a whole lot of people that would prefer to opt out of workers’ compensation.

Owners, officers, and employees, often enough, would prefer not to be stuck in the comp system.  Think about it – why do officers and employees opt out?  Probably because the money used to ensure coverage can be more efficiently used for general health insurance and as savings.  Perhaps that money could be used to keep the lights on in the business – officers and owners of various ventures might realize that if they had to pay to insure themselves under the comp system, they might be out of the job.

While, previously, the law afforded ample opportunity to get out of Dodge for the business owners, the same was not the case for employees.  How often have you had a file land on your desk where the employer protests that the alleged employee was an independent contractor?  Sometimes, the ONLY Borello factor was that the parties agreed, at the time of hire, to an IC status arrangement.

So, with all this “fraud” and misclassification of employees going on, WHY do so many employees agree to be labeled independent contractors (at least, until they file their claims for WC or whatever else)?  It’s because the employees, employers, officers, managers, owners, etc. are all in the exact same boat: there are only so many dollars, and owners and employees both would rather have the money in hand than the benefits of the workers’ comp system (until they get hurt, of course).  Many jobs can offer higher wages or employee status but not both.

Your humble blogger submits that with AB 2883, California is headed in the wrong direction.  Instead of allowing more Californians to have choice and control, California is creating more headaches (at best) and more ruin (at worst) for smaller businesses.  In a state large and diverse enough to have industries practicing the ancient trades of farming and the futuristic developments of Silicon Valley, is Sacramento really competent to make rules to serve everyone?

And on that lovely note – have a good weekend!

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