Happy Memorial Day 2015!

May 25th, 2015 No comments

Hello, dear readers!  I hope you’re enjoying your day off today instead of reading this blog post.  But, for the dedicated and overzealous among us, I wish you a happy and meaningful Memorial Day!

As always, your humble blogger invites you to take the break from the hustle and craziness of work to reflect as much as rest.  For many families, every day is memorial day – there’s an empty chair at every Thanksgiving; at every wedding; at every aspect of life.  For those of us who are fortunate enough not to be in such a position, having lost a family member in service to the United States, Memorial Day is as much an opportunity to honor the memory of countrymen gone in the discharge of their military duties, as the families they left behind.

Be especially kind to everyone you meet today, dear readers, because, to quote Ian Maclaren, “everyone you meet is fighting a hard battle.”

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On MPN Access Standards (Part 3 of 3)

May 15th, 2015 No comments

So, dear readers, what can Alex (or any defendant) do to argue that the proper access standard, when an applicant wants to designate a particularly specialty for a primary treating physician, is 30 miles, rather than 15?

The first line of attack is to challenge the specialty designated.  Why do we need a chiropractor to be the primary treating physician on a psyche claim? Or an eye injury?  We’ve seen one panel case where a Chiropractor QME was allowed to offer opinions on spinal injuries and a psyche claim, but for the purposes of a primary treating physician, how is the specialty to be selected?

Labor Code section 4616.3(d)(1) specifically requires the “[s]election by the injured employee of a treating physician and any subsequent physicians shall be based on the physician’s specialty or recognized expertise in treating the particular injury or condition in question.”  Accordingly, Alex and his client might be able to survive a challenge to the MPN on the sole basis that a pain medicine physician may not be appropriate in a particular case.  Once past this threshold, however, we are left with the fact that the legislature recognized that almost every physician is going to be either a specialists of some sort, or have “recognized expertise in treating the particular injury or condition in question.”   In other words, it is not appropriate for the applicant to select a physician as PTP that will simply manage the specialists and have nothing to offer in treating this particular injury him or herself.

A common argument from applicant attorneys, and one that appears to be persuasive to some WCJs and commissioners, is that neither pain management physicians, nor chiropractors, are “specialists” as contemplated by regulation 9767.5(a)(1).  A surgeon specializing in hand surgery might be a specialist, but chiropractors and pain management physicians are just PTPs, and so there must be 3 of each within 15 miles of applicant’s home or workplace.

However, if you ask the doctors themselves whether they are specialists, they will shout it with pride from the mountain tops!  The California consolidated licensing website, BREEZE, allows you to look up a physician and list his or her area of practice and any board certifications that are relevant.  The physician’s website itself will typically laud the “specialty” of the physician, which will only be bolstered by Board certification in a particular field such as pain management or even in chiropractic medicine.  These physicians will tell you themselves that they worked hard, focused on a field, and obtained certification in a particular specialty.  THEY ARE SPECIALISTS!

Finally, section 9785 specifically defines a primary treating physician as “the physician who is primarily responsible for managing the care of an employee, and who has examined the employee at least once for the purposes of rendering or prescribing treatment and has monitored the effect of treatment thereafter.”  Accordingly, if a defendant is prepared to offer three physicians, of any specialty “to treat common injuries experienced by injured employees” within 15 miles or 30 minutes of the employee’s home or workplace, that should be enough.  When the injured worker says “these guys aren’t what I need… I need someone who specializes in X; give me three of those to choose from” then the defense should be entitled to 30 miles.

Some readers have graciously provided other suggestions:

Trying to focus on “30 minutes” rather than “15 miles” and establishing that the injured worker could travel 22 miles in 30 minutes.  This is doable, but might be hard to establish with issues such as traffic, speed limits, etc.

Other readers have suggested that the regulations should be amended to specifically define which “fields” (to avoid using the word “specialties”) are general PTPs (family law, occupational medicine, internist, GP) and which would be considered specialists.  That way, when creating and maintaining an MPN, the employer and/or insurer would know which holes to plug.

There’s more to come on this, dear readers, because the MPN is a hard-earned tool for defendants to keep care standards high while care costs low.  Your humble blogger submits that maintaining a 30-mile radius (rather than 15) for access to specialists, including pain management and chiropractic medicine, is worth fighting for (and helping your friends fight for as well).

Have a good weekend!

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On MPN Access Standards (Part 2 of 3)

May 13th, 2015 No comments

So, there I was, dear readers, torn in all different directions – the loyalty to a friend in need, the allure of a relaxing evening, the still unsettled issue of MPN access standards… and so, I did the only thing a good friend does in such a situation – let’s defend us an MPN!

The problem with this issue is rooted in California Code of Regulations section 9767.5.  The language states that an “MPN must have at least three available physicians of each specialty to treat common injuries experienced by injured employees based on the type of occupation or industry in which the employee is engaged and within the access standards set forth in (1) and (2).”  Subsection (1) requires “at least three available primary treating physicians … within 30 minutes or 15 miles of each covered employee’s residence or workplace.”  Subsection (2) requires “providers of occupational health services and specialists who can treat common injuries experienced by the covered injured employee within 60 minutes or 30 miles of a covered employee’s residence or workplace.”

The defense position is typically to argue that we can provide you with three doctors within 15 miles, or, if you want to specific a specialty, we can provide you three physicians of a particular specialty within 30 miles.  By contrast, the applicant position is (typically) to demand at least three chiropractors or three pain management physicians within 15 miles of the employee’s residence or workplace.  What meaning does subsection (2) have in such an argument?  That orthopedic surgeons are “specialists” but pain management and chiropractic treating physicians are not.

Unfortunately, the law on this is not very settled.  There have been a few panel cases on the subject, but not much else (that your humble blogger could find).  So, what could I tell Alex?  What could Alex tell his client?

In the panel case of Martinez v. New French Bakery, the WCAB was addressing the issue of MPN access – applicant had claimed that defendant’s failure to provide three orthopedists within 15 miles of applicant’s home or workplace rendered the MPN invalid.  In seeking reconsideration of the WCJ’s ruling to that effect, defendant argued that the appropriate standard is 30 miles.  The WCAB granted reconsideration, reasoning that “[h]ere, the WCJ found that defendant failed to provide three orthopedic surgeons located within 15 miles of applicant’s home or workplace.  This finding was in error because the WCJ applied the 30 minutes/15 miles access requirement for treating physician under Rule 9767.5(b) rather than the 60 minutes/30 miles access standard for specialists, such as orthopedists, under 9767.5(c).”

Another, split panel opinion, recently went the other way.  In the matter of Lescallett v. Wal-Mart, applicant raised effectively the same argument: if there weren’t 3 pain medicine physicians within 15 miles or 30 minutes of applicant’s home or workplace, the MPN was defective.  Defendant sought reconsideration of the WCJ’s ruling to that effect, and argued that the proper standard for a specialty, like pain management, was 30 miles or 60 minutes, as per subsection (2).  In a split panel decision, the Lescallet opinion denied reconsideration, ruling that the appropriate standard is from subsection (1).  The majority seemed to hold that subsection (1) applied to primary treating physicians, while subsection (2) applied to secondary physicians.

The dissenting opinion would have granted reconsideration, reasoning that “when a specialist is selected within an MPN to provide medical treatment as a primary treating physician, or as a secondary physician, the access standards for specialists apply.”

So, dear readers, what line of attack can you take, with this limited authority available, to defend the theory that any PTP will do within 15 miles, and a demand for a certain specialty affords the defendant 30 miles to comply?

Check back on Friday for your humble blogger’s even humbler suggestions.

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On MPN Access Standards (Part 1 of 3)

May 11th, 2015 No comments

Happy Monday, dear readers!  I know you visit this blog to hear the occasional joke or brush up on the latest crackpot ideas coming out of the humble-blogger-kitchen.  Instead, today, I’d like to relate to you a phone call I received just last Friday afternoon.

The week’s work was done: benefits were soundly denied; files were tightly closed; and your humble blogger was looking forward to heading home for the weekend… then, the phone rang.  Naively expecting good news, I picked up the ringer, only to hear the voice of a dear friend and law school classmate who had recently started practicing workers’ comp.

Now, my dear friend, Alex, had ignored my prior advice, which urged him not to start practicing in comp – but now he sought advice again.

His client had invested heavily in developing an impregnable MPN, only to have some upstart applicant’s attorney challenge it (why, I never!).

Initially, the applicant’s attorney had claimed the MPN was defective because there were no pain medicine physicians close to applicant’s home.  Alex had countered with the fact that California Code of Regulations section 9767.5 allows an MPN to provide physicians near the employee’s residence OR workplace, so if the employer has doctors near the ol’ jobsite, all is well with the world.  Score one point for Alex!

Not to be discouraged, the applicant attorney came back with “but you don’t have 3 pain doctors within 15 miles of the worksite.  So I get to send my client to Dr. Quacky McQuackerton, outside of your MPN.”

Now, please bear in mind, dear readers, at this point, I watched the last car leave the parking lot from my window and I could practically taste Oban on my lips as I longed for home.  But, the bond of friendship, and, more importantly, the fraternal links that join all defense attorneys together into a phalanx of iron-colored suits, gave me strength and patience.  So, the facts kept rolling in…

The MPN in question was a pretty good one – there were quality treating physicians ready to help injured workers, and the MPN offered a pretty broad array of disciplines and specialties.  However, in this particular case, the injured worker’s workplace was less than 15 miles from two pain management physicians, but pain doc number 3 was 22 miles away, and so my panicked friend recited section 9767.5(a)(1) – three available primary treating physicians within 15 miles of workplace or residence.

An expedited hearing was coming up, and his client wanted him to defend the MPN.  Now, Alex was asking me for a defense – what’s to be done?  Cry havoc, and let slip the lawyers of litigation!

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Copy Service Regs Heading Our Way!

Despite his foreign origins, your humble blogger is a red blooded American now-adays: he likes his canyons grand, his dawn light early, and his banners star-spangled.  That being said, when the gubmn’t imposes regulations that, in effect, limit the extent of other government programs, one can hardly object, right?

So, when defendants are constantly tasked with paying, adjusting, or, as is the case more often than not, litigating copy service liens, the uncertainty of liability usually drives the cost up more than the legitimate claims of copy services themselves.

Effective July 1, 2015, defendants will have a new tool to cut back on copy service liens: section 9981.

Here’s a basic breakdown – defendants will have 30 days from the date the applicant requests copies of records to provide those records, and, if they do, defendants will have no liability for any copy services engaged by applicant.

Copy services will have to be performed by a “registered professional photocopier.”  What’s a professional photocopier?  Check section 22450 of the Business and Professions Code: “[a] professional photocopier is any person who for compensation obtains or reproduces documents authorized to be produced … who, while engaged in performing that activity, has access to the information contained therein.  A professional photocopier shall be registered pursuant to this chapter by the county clerk of the county in which he or she resides or has his or her principal place of business, and in which he or she maintains a branch office.”

And, as to the actual fees, we’re looking at $180 flat fee for the first 500 pages, $75 for cancellation after the subpoena has been issued, $20 for EDD records, $30 for WCIRB records, and some minor fees here and there for additional pages or electronic copies.

Your humble blogger thinks this is definitely a step in the right direction.

Copy service bills are annoying and can rack up the costs involved in closing out a file.  The adjuster is often tasked with deciding whether to try to settle current copy service liens and create an incentive for more liens of the same type on future files, or spend precious litigation dollars and incur delays in closing the file (and spend precious daylight attending to lien claims instead of case-in-chief matters).

These regulations are going to be a valuable tool in cutting down on senseless litigation of this sort.  Remember, folks, it is in the interest of the applicant’s attorney, as a repeat player, to make a claim as expensive as possible.  After all, if wasteful litigation can make each claim $20,000 more expensive, it’s easy to negotiate an extra $10,000 in settlement just to avoid having to waste all that extra money.

Regulations such as these will help cut down on the litigation cost balloon.  Let’s see how they play out at the Board.

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Injured Driver Sues Uber; Demands WC Coverage

Happy Monday, dear readers!  And, to those of my beloved followers who are members of the Jedi Faith, May the 4th Be With You.

Today’s post comes from the workers’ paradise of San Francisco, with the story of an Uber driver who reportedly sustained injuries following an attack from one of his passengers.  The passenger was taken into custody and has entered a plea of not guilty, but the Uber Driver is now suing Uber, demanding that he be covered by workers’ compensation.

Uber, of course, is arguing that no employment relationship exists, and that Uber drivers are independent contractors.

This has been an area of contention for some time, as Uber does not pay for workers’ compensation, Uber doesn’t obtain medallions from cities, and Uber skips a lot of the operating overhead that its competitors (like traditional taxi cabs) pay and pass on in fares.

Sooner or later, there’s going to have to be a determination about this: are Uber (and Lyft) drivers independent contractors or employees?  Your humble blogger, of course, submits that they are, in fact, independent contractors, and so fall outside the scope of California’s workers’ compensation laws.

The main case and authority on this point is, of course, the Supreme Court decision in Borello.  When analyzed in light of Borello, it appears that the Uber driver is an independent contractor.  What does Uber provide?  It provides a dispatch service – the passenger sees a list of available drivers, picks one, and sets a destination.  Uber takes a reported 25% commission and keeps a publicly-viewable log of driver reviews.

What do the drivers provide?  Their time (drivers set their own hours by turning on or turning off the Uber app), their own cars, their own gas, their own charm… What part of this spells an employment relationship?

Furthermore, the driver in this particular lawsuit, like every single driver that downloads the Uber app and starts picking up passengers, knows full well what he (or she) is getting into.  There’s no question when new drivers download the app that they love the independence of being an Uber driver – but independence comes with a price, and that involves bearing your own risk.

Now, bear in mind, dear readers, every Uber driver can call up an insurance broker and buy a workers’ compensation policy for him or herself – but the driver in this case elected not to do that, and so do so many more because they’d rather bear the risk of an injury while driving for Uber than pay California’s workers’ compensation premiums.

Children might be forgiven for gambling and then claiming they didn’t understand the risks.  Grown men and women should be expected to bear the risks of their own ventures.

Here’s hoping Uber succeeds in fighting off this challenge!  Have a good week, dear readers!

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Proposed Legislation: No UR for Maintenance Rx

Hello, dear readers!  Another Friday is upon us, and all is well in California.  The jobs are evaporating with the water, Governor Brown has declared war on grass (they type you grow on your lawn, not the type that you inhale) and here we are with another blog post to launch us into the weekend.

Earlier in the year, various organs of the state government warned us about heat exhaustion, the need to provide outdoor workers with shade and water, and the dangers of exposure to the sun and dehydration.  All wonderful advice that went unheeded in the state legislature, as SB 563, previously discussed on this blog, continues to be amended from bad to worse.

Deciding that forcing UR vendors to disclose their bargained-for compensation was not enough, 563’s authors have amended it to prohibit Utilizaiton Review from denying or modifying treatment previously authorized and used to keep an injured worker at his current health level.  In other words, if you previously authorized a gym membership for 1 year, and the doctor says the injured worker needs a gym membership year after year to stay at his current level, guess what you can’t send to UR… the gym membership RFA!

Now, I’m sure you’re thinking what everyone has thought, now and then: “Greg, you handsome devil you, what’s wrong with a gym membership?  $300 will buy you a two-year gym membership to 24 hour fitness at Costco.”  Yeah, sure, that’s great.  Now substitute gym membership with narcotics and opioids.  Recall, if you will the case of Buitendag and Kohrumel, wherein an “injured” worker was convicted of insurance fraud.  During the investigation, 20 boxes of unused prescription medication were found in applicant’s garage.

Now, you take the steady prescription of opioids, and the demand and their lucrative value on the market, well… that’s big bucks.  Accordingly, you could have an applicant receiving and either abusing or re-selling medication, without UR being in much of a position to challenge the prolonged use of opioids.

Subsection (C) of SB-563 would require the employer to show that there is evidence of a change in the employee’s circumstances or condition showing that the services are no longer reasonably required to cure or relieve the injured worker from the effects of the industrial injury.  However, would a drug test showing the absence of the prescribed medication meet such a definition?  It would have to be litigated, of course, should this ever become law, but the language does not lend itself to such a defense.

So, dear readers, here’s some advice from the private sector to all the citizenry: make sure your elected officials are well hydrated, and working in the shade.  Don’t let them suffer heat exhaustion or it could lead to serious injuries to California’s economy.

Have a good weekend folks – your humble blogger will be eager to greet you bright and early, Monday morning.

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PSA: Facebook is NOT a WC Fraudster’s Friend

April 29th, 2015 No comments

Hello, dear readers!  Generally speaking, your humble blogger maintains his calm, cheerful, and respectful demeanor thanks to this blog and its readers: all the venting and ranting happens here, and the sarcasm and snark gets spent here instead.  To that effect, I try to bring you stories and cases and developments tied snugly into California matters but, on occasion, when it’s particularly relevant, I might relate a story or two from outside of California’s well-established borders.  Today is such a day!

The Washington State Department of Labor & Industries reports that Tony T. Perry Sr., of Port Orchard, Washington, has plead guilty to two counts of third-degree theft after he received almost $14.5k in wage loss payments while he competed in BMX bike races.  He described, on Facebook, injuring his ribs after a bike crash, but then claimed he injured his ribs in a fall caused by his allegedly industrially-injured knee.

Convict Perry was sentenced to 15 days of electronic home monitoring, with an additional 349 days in jail, suspended if he obeys all laws and repays the wage loss he received.

The investigators were clued in based on an anonymous tip, and conducted some surveillance, videotaping convict Perry engaged in at least two BMX races.  However, it looks like half of the work was done for the investigators by Perry himself, who brazenly documented his BMX racing on Facebook for the world to see.

So, dear readers, why do I bring this to your attention?  Why would an adjuster or an attorney or even an employer in California, where we are so busy keeping the working man from working, care about BMX racing and workers’ comp in Washington?  Well, you know we have bike paths in California, right?  We have Facebook too.

If you get a claim and you have the slightest doubt that the injured worker is a faker… take a look at Facebook.  If you get a claim and you’re pretty certain that the injured worker is honest… take a look at Facebook.  Take a look at LinkedIn too, and the Twitter and whatever else the kids are doing these days, because odds are, there’s a gem or two waiting for you to pick it up.  And, yes, this applies to California too.

So, dear readers, don’t be shy – a bit of time on social media could lead to an SIU referral.

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Hairstylist Found to be Employee for Comp Purposes

April 27th, 2015 No comments

Happy Monday, dear readers!

This morning, as your humble blogger stared admiringly into the mirror (“you’re more handsome.  No, YOU’RE more handsome!”) he realized it was time for a haircut.  But… who would cut this glorious hair?  Would it be barbershop employee… or an independent contractor?

In the recent writ denied case of Martinez v. Chelo’s Hair Fashion, the WCJ and WCAB both had found that applicant hairdresser was an employee rather than an independent contractor.  Of particular importance were the facts that the defendant-employer “exerted the right to control the manner and means in which applicant accomplished her job by setting the price, receiving 50% of the payments, deciding when to authorize discounts, paying all the bills, and not giving applicant a IRS Form 1099.  She also supplied instrumentalities in the form of shampoo, towels, and hair products.”

The alleged employer did not testify, but on cross-examination, the applicant testified to providing her own tools, which she must maintain and, if necessary, replace.  She also testified to having a cosmetology license, having spent some time working at another salon at the same time as Chelo’s, and to paying city and business taxes out of her earnings.  She also got to set her own departure time, although she had to open the shop in the mornings.

The WCJ found there to be an employment relationship, and the WCAB affirmed.  Initially, the WCAB declined to address the factors outlined in Borello, on the grounds that defendant did not offer any evidence to rebut the presumption of employment under Labor Code section 3351.  But, even under the Borello the WCAB would find employment on the grounds discussed above.

Interestingly enough, your humble blogger recalls a similar matter – that of Aparicio v. WCAB, in which the WCAB found a hairstylist to be an independent contractor and the Court of Appeal denied review.  There, applicant kept a portion of the money paid to her by her clients in lieu of paying rent or earning hourly wages.  She was provided with a place to work and some supplies.  In Aparicio, applicant did not have a cosmetology license, but Ms. Martinez did.

The Aparicio and Martinez arrangements seem pretty similar, but the commissioners provided very different results.  What does a salon need to do to ensure that its hairstylists are independent contractors and not employees?

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“Injured” Worker Caught Skydiving; Charged with Fraud

April 22nd, 2015 No comments

Happy Wednesday, dear readers!   When I was a boy, my great-uncle Pavel told me the story of how he jumped from a Russian Bomber during World War II after it had been struck by Messerschmitt fire.  His let shoulder and elbow dangled uselessly from his body, but he was able to pull and control the parachute to land safely into a cottage full of lonely and beautiful young women who were very impressed with the brave man in a handsome uniform.

Later, I found out my great-uncle had an excellent imagination, but a poor memory, and actually spent World War II as a cook… and he’d never been to the great Motherland; he never jumped out of any airplanes; and, based on his cooking, it looks like he was busy fighting his own war against culinary convention.

When I discovered this – I was heartbroken… but it wasn’t really fraud, right? Just a tall tale to match a tall drink.

Then I read the story of a gentleman from Santa Clara County being charged with workers’ compensation fraud.  Apparently, this gentleman claimed to have sustained an injury while at work as a concrete cutter, and is charged with defrauding Arch Insurance Company of $52,000.  He claimed the injury caused him immense pain and rendered him unable to drive.

Investigators obtained footage of him driving without any difficulties… and even observed him engaged in skydiving, guiding his parachute down to safe landings!

The Santa Clara District Attorney picked up the case, and has filed felony charges against the gentleman.

Your humble blogger commends the Santa Clara DA for prosecuting this case, and the insurance company for investing the time and resources in investigating the claim.  Workers’ Compensation Fraud happens far too often in California, and its discovery is far too rare- its prosecution rarer still.

As for Pavel, each time he tells the story, his injuries get worse and his escape more daring – both of which can be forgiven so long as he doesn’t seek any workers’ comp benefits for the tall tale.

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