Social Media Turns Fraudster’s Bowling Strike Into Gutter Ball

July 23rd, 2014 No comments

There was a time when the typical lawyer did not use a computer.  Now, you need to, there are no two ways about it.  The same goes for the typical claims adjuster.  Times have changed, as have methods and approaches to doing things.  You need to be well versed in the use of computers, software, internet, etc.  That has been the case for a while, dear readers, so why am I wasting your time telling you this?

Because social media is in the same boat: it’s not just for drunk college kids to ruin their future job prospects, or insecure teens to post half-naked “selfies” and cry desperately for attention and affirmation.  It’s also a go-to for you for every single claim that crosses your desk.

Facebook, twitter, LinkedIn, Instagram, and the rest of them.

Previously, I’ve brought you examples of a disabled firefighter posting his exercise results and his MMA tournament successes, and other cases as well.  Today I bring you the story of Ronald Fortune, who testified at his deposition that he enjoyed bowling but no longer could do it because of his injury, and then posted his bowling scores on social media.

Someone on the defense team, whether the employer, adjuster, or attorney, needs to keep an eye on social media and check once in a while to see if your applicant is still an altar boy away from the altar.

In the case of Mr. Fortune, the district attorney filed criminal charges, and Mr. Fortune plead guilty to felony perjury and was ordered to pay restitution and serve 400 hours of community service and be on probation for three years.

My beloved readers have read my rants about how harmful fraud is to everyone in California, not just the particular employer or the particular insurer, so today I’ll confine my comments to the need to monitor social media on a regular basis.

Your humble blogger, and vast army of researches, writers, and staff at WCDefenseCA wishes to send its thanks and congratulations to the Los Angeles County District Attorney’s Office for its willingness to take and prosecute this case.

Semper Vigilans, dear readers.

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MSA Insurance on the Way?

July 21st, 2014 No comments

Hello, dear readers!  Another weekend is over, and it’s time to roll up our sleeves and face the monsters and demons that await us in Complandia.  Your humble blogger had occasion this weekend to swing by Bob’s Cluttered Desk, and swipe a bit of interesting information from that busy piece of furniture.

Mr. Wilson reports that in the next few weeks, we can expect to see a new product on the shelves in Comporium stores everywhere: MSA insurance.  Basically, this product would purport to serve as a modern-day handshake and reputation: when a Medicare Set-aside Analysis report recommends a certain sum be set aside for future medical care, purportedly enough to appease the vengeful federal deity Medicare, any future action by Medicare to litigate the question of adequacy will be paid, adjusted, and/or litigated by the insurer.

Let that sink in – an employer or insurer will be able to settle cases without the risk and uncertainty (in Complandia, we call that “expense”) of the federal government coming back against them for “shifting the burden” of medical expense.

The process by which a settlement gets approved now is slow and expensive.  For C&Rs under $25,000, we just have to hope and pray, because the CMS will not bother reviewing the settlement, although conceivably, they can come back and start trouble down the line.

But, let this sink in as well:  the federal government, through a byzantine system riddled with delay, uncertainty, and vagaries, has created a need for this product.  In other words, because of the inefficiencies and meddling of the federal government, one way or another, everything is more expensive.  Every purchase you make in the store goes towards a business’s bottom line, which must in turn pay to insure, self-insure, or group-insure.

In other words, picture your humble blogger opening up his bakery in your local neighborhood.  The baked goods are delicious, the prices are low, and the venture looks very promising.  Then, one morning, in walks a burly man with two companions, dressed in the finest suits.  “This is a really nice place you got here, Mr. Greg.  It would be such a shame if something horrible happened to it.  Why don’t you let us sell you some ‘insurance.’  After all, who knows what might happen?”

So, I can either pay for the ‘insurance’ and raise my prices (or lower the quality of my delicious baked goods), or spend my days wondering when this ‘insurance’ salesman is going to have my windows smashed or my cashiers robbed.

Whether you buy the insurance or take your chances, everything is more expensive because of the way CMS goes about its business.  It’s great to have this service available, but wouldn’t it be better if you didn’t need it in the first place?  Now, if you’ll excuse me, your humble blogger will go back to making dough.

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Putting Healthy Workers on ICE Over in Federaliville

July 18th, 2014 No comments

So sorry for my recent absence, dear readers.  As you may recall, your humble blogger posted an argument advocating a statutory reduction in applicants’ attorney fees, limiting the 15% usually collected to gains made above what the worker was able to obtain in propia persona.  

A couple of applicants’ attorneys confronted me after a hearing, and it was made clear to me that I could continue to advocate limiting applicants’ benefits with impunity, but any further attempts to threaten AA earnings would be met with considerable displeasure on my part.  After some time spent in a CAAA holding cell, I was able to escape using my MacGyver tool kit, which consisted of a straw, a rubber band, and a paperclip.

Anywho, I bring you an interesting story from the domain of the Federal Government today.  As every school child knows, the Federal Government, like all government entities, has a solid track record and reputation for only collecting in taxes the money it truly needs, and going to great pains, both as a whole and through its individual federal employees, to make sure the public’s money, trust, and good will is never squandered or wasted.

So, I was greatly shocked to discover that over $1 million had been paid to five employees in off-work benefits after the employees had been medically released to return to work!

The internal audit also revealed that Immigration and Customs Enforcement management failed to investigate claims or keep an eye on them as they progressed.  It’s almost as if they didn’t care if money got wasted because they had an endless pool from which they could always draw.  An ICE official, Special Agent Vanilla, ICE, reached for comment, had this to say:

ice ice baby meme

Anyway, for all of us that are not in the position of complacently wasting the wealth of others, this serves as a good example of what not to do, and an excellent reminder for us all to be alert.

We don’t have endless funds to waste, neither funds for one worker ready to work but slipping through the cracks, nor all his co-workers who might get wise that no one is minding the store.

So let’s let this be a reminder to all of us to keep on top of our cases, and make sure we don’t end up paying healthy folks not to work.

Have a good weekend!

 

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Treatment At His Own Expense – Including a Past Medical Award?

July 11th, 2014 2 comments

Ok, dear readers, your humble blogger has a crazy question with which to ruin your weekend: what does the wording of “at his or her own expense” mean?  As my beloved readers will recall, the Supreme Court interpreted Labor Code section 4605 to mean that an injured worker can treat outside of the Medical Provider Network “at his or her own expense.”  (Remember the Valdez decision?)  But what does that mean, exactly?

Let’s take some hypotheticals.

Applicant sustains an injury to the back working at a duck farm lifting some heavy bags of duck feathers.  His employer’s insurer wants to send him to an MPN physician, but the quacking sounds remind applicant of work so he decides to pay for his own treatment.

Keep-Cool-Donald-donald-duck-8487552-549-558

If he goes across the street to the medical offices of Whey, Cheatum, and Howe, D.C.s and offers to pay cash for treatment, are we within the scope of 4605?  Probably – that seems about as clear-cut as you can go.

Now, let’s change it up a bit – what if Donald (that’s the injured worker’s name, by the way) wasn’t always working on that duck farm?  In fact, Donald has a prior injury to the back from when he was an English teacher at Duck U., and that claim was resolved with an award, including future medical treatment.  If he decides to treat the same body part, but claims it under Duck U.’s medical award, is it still “at his or her own expense”?

On the one hand, if it is at his own expense, does that mean that the second employer is somehow shielded from a contribution claim from the first employer/insurer?  If it isn’t at his own expense, does that mean he is precluded from treating under his old award because there is an accepted injury?

Now, those of you still reading this most irritating of blog posts, out of some intellectual masochism, are probably thinking “well, the awards overlap, so it’s not at his own expense.”  Well, then lets add another fact.

Labor Code section 4604.5 provides a cap on all post 1/1/2004 injuries – no more than 24 chiropractic visits.  So, Donald only saw a chiropractor 12 times for his back as a result of his old injury – what if he decides to use the other 12 for this new injury?  He’s using up a finite resource, as Duck Farm’s UR said he doesn’t need chiropractic treatment at this point, but Duck U.’s UR vendor, without addressing the issue of causation, has found chiropractic treatment to be appropriate now.

Donald-Duck-donald-duck-6412431-250-330

Since he’s down to 12 visits, is it “at his … own expense,” as contemplated by Valdez and Labor Code section 4605?

What do you think, dear readers? What position would you take?  Because, if you know that Donald isn’t going to treat within your MPN, you might have to risk exposure for a contribution petition if is not at his expense, or you might have to let the non-MPN reports come in if you take the position that is at his own expense.

Enjoy your weekend, dear readers, but when Monday comes I expect some answers!

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On Lien Claimants and Notices of Representation

July 7th, 2014 No comments

Welcome back from Independence Day Weekend, dear readers!

In honor of our nation’s great underdog victory, I shall relate to you the story that played out recently at the San Francisco Board – a contest between little Niko, the brave little defense attorney, and Natasha, the queen of evil and all that is unholy, representing lien claimants before the WCAB.

Niko appeared ready to defend his client, the poor and exploited corporation, but Natasha had brought her “A” game.  Within each argument for reimbursement was a better and more concise argument, not unlike the nesting dolls that were common in Natasha’s native land.

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Niko seemed completely lost, until, as he frantically looked through his file for some defense, he noticed a piece of paper had come loose… his own Notice of Representation, zealously drafted and dutifully filed with the Board.  But where was Natasha’s?

“Mr. Niko… for the last time, do you have any defense to this lien claim?” asked the Judge, eager to afford all parties on calendar enough time to be heard.

“Yes your honor.  EvilDoc has failed to appear, as there is no EvilDoc representative present and there is no legally valid Notice of Representation on file.”

“What do you mean?” Roared Natasha, taking a break from installing iron curtains on the Board windows.  “I’m right here – I represent EvilDoc.”

Well, dear readers, was she, legally speaking?

Labor Code section 4903.6(b) requires all lien claimants to inform all employers, their representatives, and the appeals board within 5 days of any change in representation status.  Furthermore, Rule 10774.5(e)(4) defines the notice of representation as requiring the signature of both the lien claimant and the representative assuming the representation.  (This does not apply to attorney representatives for lien claimants, as per section (e).)

Subsection (e)(5) provides that failure to properly follow the Notice of Representation rules holds that the lien claimant is not actually represented, and if not, then the lien claimant had better be there or else face a dismissal for failure to appear.

So, unless Natasha (or the EAMS record) can produce a copy of the Notice of Representation and a valid proof of service, Natasha is just hanging out at the Board, and not appearing for EvilDoc.  And since EvilDoc is busy doing whatever it is EvilDoc does, odds are high that he isn’t going to be showing up.

Lexis has a survey of these cases in a great post here.

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Happy Independence Day from WCDefenseCA!

July 4th, 2014 No comments

Greetings dear readers!  *Cricket Cricket* Ahh – of course, you’re probably sleeping in, prepping the BBQ, camping, or even engaging in the purchase and discharge of some illegal fireworks

Now, bear in mind, your humble blogger does not want to discourage you from doing any of that (except, perhaps, the illegal fireworks part).  But, as with all holidays, we should take time to reflect.

Fireworks are just fireworks.  As are BBQs and camping, and over-eating hamburgers (or veggie-burgers, for my herbivore readers).  What makes them special today is not that they’re explosives and grilled food, or that they are explosives and burned food on the same day every year.  What makes them special today is that they are to celebrate our nation’s independence, and also our nation as a nation of independents.

Now comes the ugly…

As great as this country is, something is going wrong when Americans living abroad are, at epidemic proportions, renouncing their U.S. Citizenship.  From the looks of it, it’s for economic reasons and not any ideological ones.

Something is wrong with California too, when businesses (and the jobs that go with them) are leaving the land of chronic sunshine, delicious grapes, and bountiful Sushi to face tornadoes, floods, the dessert, and even blizzards (no, not the delicious ice-cream ones).

Light up your BBQ, blow up your fireworks, and, if you’re Yosemite Sam, go ahead and shoot your guns into the air.  But in between your fourth burger and your fifth, or while you’re getting the hose to put the fire out, or even while you’re reloading, think about what course we’re taking as a nation and as a state, if the honesty of self-interest is taking our fellow Californians and countrymen elsewhere.  What are we doing that makes them prefer their new homes to their real homes?

Wishing you a 4th of July that is safe, fun, and balanced enough to afford you time to reflect!

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COA: At-Home “General Fitness” Exercise Energy Compensable

July 2nd, 2014 No comments

Your humble blogger, before he hung out his own proverbial shingle and opened his own literal office, had the privilege of working for another law firm.  One requirement of continued employment was a valid California Bar license, and one requirement of a valid California Bar license was keeping up with the State’s ridiculous MCLE minimums.

So, one day, as I sat diligently at my desk at home, writing out the answers to a take-home MCLE self-test, my elbow slipped, and my pencil pierced my hand.  The cut wasn’t deep, but it of course became infected.  As a result of the amputation, my other hand and arm became overused, causing carpal tunnel and a cumulative trauma.  The inability to use both hands necessitated the use of my teeth as a gripping method, which of course caused a dental injury, as well as considerable psychiatric trauma.  Needless to say, it wasn’t long before I faced a permanent total disability determination and was prepared to lay the entire claim at the feet of my employer.

After all, I was only injured because I was catching up on my MCLEs, which I was only doing to have continued Bar Membership, which I was only doing to continue my employment.  AOE/COE established, right? Slam dunk…

Ok, now back to reality.

The Court of Appeal recently ruled on the claims of an applicant, one blessed with eternal youth, for injuries sustained at home while engaged in exercise for the purpose of staying fit for his job duties.  In the case of Daniel Young v. WCAB and County of Butte (get it? eternal youth… because his name is always Young… it’s funny because… oh.  You got it? What do you mean it’s not funny?), the Court held that when the employer states a vague requirement that employees must remain physically fit to perform their jobs, and neither provides guidelines for fitness activities or at-work physical fitness facilities, an injury sustained while doing jumping jacks at home is compensable under Labor Code section 3600(a)(9).

Sergeant Young was employed as a correctional officer by Butte County.  There was a general directive requiring him (and all other correctional officers and sergeants) to maintain physical fitness for the demanding job duties that often come with guarding inmates.  Applicant testified that jumping jacks are his “warm-up” activity prior to engaging in other exercise to maintain his weight and general physical condition.  Butte County neither provided a list of activities to be performed by employees to stay in shape, no did it provide opportunities during work hours to exercise.

Applicant’s position was clear: he exercised because he had to because his employer told him to.  Defendant’s position was equally clear: no one told him to do jumping jacks.

Although the workers’ compensation Judge found the injury compensable, the WCAB reversed, relying on the case of City of Stockton v. WCAB (Jenneiahn), for the proposition that an injury sustained at home while preparing for a fitness test necessary for work is compensable, for an injury to stay in shape when no fitness test was on the horizon was not.

The Court of Appeal disagreed, instead reasoning that the test to determine if the “off-duty recreational, social, or athletic activity … are a reasonable expectancy of, or are expressly or impliedly required by, the employment,” was whether the employee subjectively believed the participation was required, and whether this expectation was objectively reasonable.

In this case, there appeared to be no question about the subjective belief by the applicant that he had to do these exercises and stay in shape as part of his job.  On the other hand, the COA and the WCAB disagreed as to the objective reasonableness of this belief.  There was no exam, except the initial hire fitness exam, and applicant would not be tested on his physical fitness.  However, because of the vagueness of the order, the COA reasoned that the bar for what activities were objectively reasonable should be lowered.

The COA did encourage employers to avoid increased liability by limiting the scope of exercises required by the employer to maintain physical fitness.

What do you think, dear readers, is the Court of Appeal right on this one?  My initial impression when reading this opinion was that there should be a distinction between an employer wanting an employee to develop and maintain a new skill, rather than the maintenance required for the skill or ability promised at the time of hire.

So, if you have to be able to lift 160 pounds and carry it for 20 feet to get hired, it should be understood that you have to continue to be able to do that to keep your job.  By contrast, if the employer tells you, once hired, that you now need to be able to do something else, like learn and perform CPR, perhaps the injuries sustained in that pursuit should be compensable.  Just a thought, dear readers.

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Injuries Sustained While Retrieving Personal Items After-Hours Held Non-Compensable

June 30th, 2014 3 comments

“Injuries taking place when a worker has reentered the job site for a personal motive after his or her workday has ended have been held to be outside the scope of employment.”

The Court of Appeal recently denied applicant’s petition for a writ of review in the matter of M.C. v. University of Southern California, wherein the WCAB held that applicant’s injuries sustained in the form of an assault by a co-worker when she returned to work several hours after the end of her shift to retrieve some personal effects was non-compensable.

The reasoning relied heavily on an analysis of the meaning of Arising out of Employment and in the Course of Employment, which we of the workers’ compensation community refer to as “AOE/COE.”  The analysis has  two prongs – whether the injury occurred when and where employment takes place, and also during the work being performed.

In this case, the majority of the panel held that, even though the injury occurred where work usually takes place, it did no occur when work usually takes place, and not while the applicant was performing any work for the employer.

By contrast, the dissent would have found the injury compensable, noting that the employee was provided with an access card for after-hours entry, and a place to keep her personal items.  She took advantage of both, as provided by her employer, and it placed her in the position where she sustained the injury in question.

What do you think, dear readers – should the employer/insurer be on the hook for all injuries sustained on its premises?  Should an amusement park employee have a compensable claim for injuries sustained while enjoying the rides at the amusement park?  What about a bar tender having a drink in the bar where he works?

Given the sensitive nature of the case, your humble blogger has not placed the full name of the applicant in this blog post.  For a copy of the panel decision, please shoot me an e-mail.

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Supreme Court Rules On Illegal Alien Right to Back Pay

June 27th, 2014 No comments

Good morning, dear readers!

Your humble blogger had another blog post prepared for you this morning, but news of the Supreme Court’s opinion in Salas v. Sierra Chemical Co. mandated an immediate post, because this is very good news!  Some of my readers may recall this blog post on the same case.

The facts are pretty simple.  Salas used a stolen social security number to lie his way onto a job. After several years working for Sierra as a seasonal employee, he hurt his back while stacking crates.  He filed a workers’ comp claim but continued to work modified duty.  When he was laid off with the end of the season, things continued as normal, until his employer refused to hire him back.

During the trial proceedings in civil court, Salas noted that he would testify, but would assert the 5th Amendment Privilege against self-incrimination if asked about his immigration status.  This prompted the employer to investigate his immigration status, leading to the discovery that Salas was in the country illegally.

So, what do you think, dear readers – to what benefits should Mr. Salas be entitled?  Back pay? Reinstatement? Penalties?

The Supreme Court held that an illegal alien is not entitled to back pay as a remedy under Fair Employment and Housing Act (and presumably under Labor Code section 132a) only for that period of time after the employer discovered the employee was ineligible to work in the United States.

It seems a foregone conclusion that reinstatement is not a remedy for a person without the right to work in the United States.

There have been other cases on this point as well, but this is, to some extent, a win for employers.  Once it is discovered that the injured worker does not have the right to work in the United States, backpay is in the crosshairs.  And, even if the employee is not actually back to work, conceivably, proof that the employer could accommodate modified duty, if not for the employee’s immigration status, should put temporary disability on the chopping block as well.

Finally, the immigration status should also play into liability for 132a penalties.  After all, if the applicant had no right to reinstatement, how was he harmed by not being returned to work? If he was not harmed, why the penalties?

Have a great weekend, dear readers!

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Used-To-Be Surgeon Qualified for Surgical UR Opinion

June 25th, 2014 No comments

The Dubon decision continues to make ripples in our calm little pond of workers’ compensation.  Do you remember how great it was to not be an applicant prior to Dubon?  The law was very simple: UR, IMR, done.  Now every single UR decision that doesn’t give away the farm has to survive a Dubon challenge, putting into play the issues of whether adequate records were reviewed or whether it was timely.

No exception can be found in the recent panel decision of Andronico v. La Rocca Seafood. Therein, the WCJ found that the UR decision was defective because the UR physician who had denied the treatment request was not competent to render a decision on this question of medical necessity.  To wit, the request was for spinal surgery, and the UR physician, though Board Certified by the American Board of Orthopaedic Surgery, had not performed a spinal surgery within the last ten years.

The WCJ rule the UR was defective, reasoning that Labor Code section 4610(e), required the requested treatment to be within the UR physician’s scope of practice, with practice being the operative word.  The WCJ found the fact that the UR physician’s lack of practice in the area in the last ten years to be such a material defect as to undermine the integrity of the UR decision.

On review, the WCAB disagreed.  The Panel Opinion ruled that “[a] physician’s specialty, or area of board certification, or level of clinical practice, is not dispositive of his or her competency.  Section 4610(e) requires only that the doctor be competent to evaluate the specific clinical issues, and that the services at issue are ‘within the scope of the physician’s practice.’”

Ultimately, though, the WCAB did rule that the UR decision was defective due to an inadequate records review, and sent it back down to the Board for a determination on medical necessity.

One thing to consider in all this is the scales of justice and our system.  On the one hand, we have the injured worker’s right to medical treatment, and the ultimate decision on Dubon may rule that the entire treatment right will be determined by anonymous figures without a right of appeal.  On the other hand, we have the possibility of every single case having to address these vague questions: how many surgeries in the last 10 years qualifies a physician to render an opinion? How many years in practice?  How much of the medical record must the physician review to satisfy the Dubon requirements?

Remember, dear readers, the whole reason why IMR came about was to take the uncertainty out of the equation – to stop the uncertainty that comes with every other UR physician’s resume or every other Board, or every other make-up of the panel on reconsideration.

Your humble blogger further points out that the uncertainty breeds litigation, the blurred standards invite the adversarial process.  What the heck are we supposed to do with scope of practice, when one UR physician is Board certified but has performed no surgery in the last ten years, and another might not be Board certified but performs five a month?

In the purely practical sense, however, while the WCAB considers the merits of each position int the Dubon case, the unspoken sense is there that Dubon has created a flood of Reconsideration petitions for the commissioners to address.  Here’s hoping it tips the scales for a reversal of Dubon, which your humble blogger intends to refer to (because he’s oh-so-clever) as “Duboff”.

mr miagi meme

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