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Happy Valentine’s Day!

February 14th, 2018 No comments

Hello there, dear readers, and happy St. Valentine’s Day!

Since time immemorial, true love has been demonstrated by committing acts of theft as a couple, best captured by James and Anne Bonny or Bonnie and Clyde.  It is fair to say, until you’ve engaged in theft, mayhem, and various other acts of crime, you haven’t really experienced TRUE love… amirite?

Anywho, in that spirit, I bring you an update to a story from a while back, in which your humble blogger passed on the info that Marcus Buckley went down for the fraud scheme pulled off with his insider conspirator – an adjuster!

Well, the news is out now that his partner in crime and, apparently, in love, Kimberly Jones, has now been sentenced to 33 months as well.

Truly, a modern-day Romeo and Juliet story, where the star-crossed lovers are kept apart by the arbitrary and capricious machinations of due process, the rule of law, and basic justice for the victims of their theft scheme.

Today, your humble blogger and his humble readers might bring flowers and chocolate home to their respective significant others, but as sweet as chocolates are, and no matter how fragrant the flowers, these gestures will hardly compare to the thrill of stealing $1.6 million from an insurer, robbing a bank, or even engaging in piracy on the high seas.

Happy Valentine’s Day!

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WCAB: Medical Exam, not Finding of P&S, Is sufficient to proceed to trial

February 12th, 2018 No comments

Happy Monday, dear readers!

A while back, your humble blogger asked questions (as I often do) about Labor Code section 4061(i): how does this work?

4061(i) provides, after all, that “no issue relating to a dispute over the existence or extent of permanent impairment and limitations resulting from the injury may be the subject of a [DOR] unless there has first been a medical evaluation by a treating physician and by either an [AME or QME].”

So… WHAT DOES IT MEAN?!?

what does it mean images

One panel decision held that failure to object to the DOR citing 4061(i) waives the objection, but now another, Bustos v. WCAB/Randstad Placement Pros, a writ denied case, holds that an evaluation is enough – the fact that the treating physician has declined to address PD (or find applicant P&S) is not good grounds to hold off trial or close discovery.

In Bustos, applicant was examined by her PTPs, but they never addressed PD. Meanwhile, her PQME had found her permanent and stationary and expressed an opinion as to her PD level.  Applicant sought reconsideration arguing that defendant’s DOR was defective because it had not complied with 4061(i).  However, in affirming the WCJ, the WCAB concluded that the trial presented two competing opinions: the PTP who did not find applicant permanent and stationary and the PQME who did.  The WCJ found the PQME more persuasive and thus the matter properly proceeded to trial.

As such, the WCAB rejected the claim that an applicant must be found permanent and stationary by two doctors prior to proceeding to trial.  It appears that an examination is sufficient to satisfy the requirement of Labor Code section 4061(i).

However, what if the pieces on the game-board were flipped?  If applicant’s PTP had found her permanent and stationary, but the PQME had not?  Could one party force a trial at that point?  I think so.

Now here’s another question – let’s say Ms. Bustos’ PTP ultimately does find her P&S, and provides a higher PD rating.  Would that report provide good cause to reopen for new and further disability?

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Robots are Coming For Service Jobs Too! Bartenders and Room Service Clerks at Risk!

February 7th, 2018 No comments

Tell me, dear readers, do you ever order room service while staying in a hotel?

Well, it appears that a slowly growing trend might be catching on in some of the more expensive hotels, which will probably trickle down to the more affordable ones and the cruise ships before too long.

The New York Times has a report on the increased frequency of use of robots by hotels to deliver room service.

One of your humble blogger’s oft-visited topics is the automation of the workforce.  Typically, room service clerks will be plopped into occupation code 322, which carries an “F” variant for spine impairments, but “H/G” for wrist injuries.

Considering also that the average weekly wages of a hotel room service clerk will include minimum wage and tips, any state that recognized cumulative trauma claims (such as, for example, California), would see employers cut some of their claims by replacing room service clerks with some of these robots.

Although a bit dated, this article reflects that one of these models, SoftBank’s “Pepper” costs $1,660 to purchase with a monthly fee of $225 as part of a multi-year contract.  How do those expenses stack up to a minim wage worker (at least) and an increase in the workers’ compensation premiums?

The new facts of life that are emerging are simple (if a bit scary).  Robots are coming for the jobs – not just the dangerous ones; not just the ones where the human employee does not need to interact with the customers or clients; not just the repetitive ones.

The cute-faced and chirpy-sounding robots are coming for customer service jobs as well – from bartenders to room service clerks.

And, what many applicant attorneys refuse to consider when they boast about protecting injured workers by lobbying for more benefits, or using the cost of litigation to extort unjustified benefits, is that they are really pricing more and more workers out of the job market.

Pepper the robot will never get sick, will never be rude to a customer, and will never file a workers’ compensation claim.  Can any human worker honestly say the same?

Your humble blogger strongly doubts a machine will ever replace a workers’ compensation defense attorney, but, that being said, if machines replace all the workers, will a workers’ compensation attorney still be necessary?

Sounds like it’s time for a drink.

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COA: Compactor Falling on Worker NOT Sudden or Extraordinary; WCAB Reversed

February 5th, 2018 2 comments

Ok dear readers, it’s Monday, and I’ve got some semi-good news for you!

You may recall a while back this blog diligently wrote about the Guzman case.  No, no, dear readers, not THAT Guzman – your AMEs and QMEs are still free to go fishing through the guides to make sure the injured worker gets enough money from the case.  The other Guzman, the one in which the WCAB held that a soil compactor landing on applicant was considered both sudden and extraordinary such as to defeat the 6-month employment rule of Labor Code section 3208.3(d).

Well, SCIF was not inclined to let matters sit, so it took the WCAB up to the Court of Appeal.

Just last Tuesday, the COA issued its (unfortunately) unpublished decision reversing the WCAB.  The COA took note that the incident happened when applicant as using the compactor on uneven ground.

Previously, at trial and on recon, the reasoning relied on applicant’s testimony that he had never heard of a compactor falling on anyone and that, in his 12 years of experience, he had never lost control of a compactor (prior to this claim).

On Appeal, SCIF advanced the theory that for an even to be “extraordinary” it must be “uncommon, unusual, and totally unexpected.”  As such, the “risks of tilting, falling, or losing balance while operating the heavy machine on a 45-degree slope were all reasonably foreseeable risks.”  SCIF also argued that the burden of proving that the event was sudden and extraordinary falls on the applicant, not on the defendant.

In reversing the WCAB, the Court cited three published opinions: Matea, Garcia, and Dreher.  Relying on this authority the COA noted that (1) it is the applicant and not the defendant that bears the burden of proof in establishing an event as sudden and extraordinary; and (2) “Guzman did not provide any evidence establishing that it is ‘uncommon, unusual, and totally unexpected’ for a rock to be in soil, for a compactor to rise when striking a rock, or for an operator to become unbalanced and fall when the compactor rises on a 45-degree hillside.”

But, after holding that there was insufficient evidence to support a finding that the event was “extraordinary” the Court of Appeal went further and held that the event was not even sudden:  if the circumstances in question are working on a slope rather than on even ground, applicant had been working on a slope for some 30 minutes before the accident.

So, great news, right?  Well, not so much.  First off the case is not published so we can’t exactly rely on it as compelling authority, although the reasoning can be copy-pasted into any trial brief and shamefully asserted as the attorney’s own words.  We’re lawyers, not saints, and we’re not above plagiarism!

Also, think about the litigation budget SCIF incurred to get this far.  Not only did SCIF have to shoulder the burden of a petition for reconsideration, but also a petition for writ of review.  The delay and cost involved might make any private-sector defendant hesitate.

This result should encourage us to continue litigating and appealing these cases because victory is possible, and this result will hopefully be a decent taste of reality to applicant attorneys.  But, that being said, if anyone has the Court of Appeal on speed-dial, perhaps we could encourage the Court to publish this case?

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Hey, do you know any decent doctors? Recruit them to be QMEs!

February 2nd, 2018 No comments

Happy Friday, dear readers!

I don’t often serve as an advertising billboard for the DWC, but, motivated by self-interest, I’m going to do so today.

The Medical Unit is accepting applications for the QME exam of April 28, 2018.  Please, please, please – if you know any eligible doctors who are diligent and fair, invite them to apply and joint the PQME pool.

My current record for having to seek replacement panels because everyone is booking a year out is 5 – I’ve received 5 replacement panels before a QME was found that could timely set for an appointment.

There are a lot of great QMEs right now that I’m happy to send my cases to, but sometimes they just don’t have the availability.

So, simply put, we need more QMEs, and the way to do that is to have more medical evaluators register for the test, take it, and start showing up on panels.  If you have friends, family, or people in your network (social or professional), please encourage them to look into this.

And, of course, this goes for both applicant and defense community members – if the claim is denied, 5 months of panel replacement requests means 5 months without any benefits for the injured worker.  If your claim is accepted and that one pill-pushing, TTD assigning, everything-is-industrial PTP that you can’t seem to kick off your MPN is paying off his third vacation home on your claim, you might want to get a reasonable QME to P&S the guy yesterday.

And don’t think the AME route is the answer to this – it’s not.  Here in the Bay Area at least, a lot of the AME doctors that the parties would agree to are booking 6-12 months out.

We would all benefit from refilling the pool of reasonable, competent, and fair evaluators.  To do that, we’re going to have to take matters into our own hands, because a Newsline post on the DWC website is probably not going to do it.  Otherwise, you might end up with a QME like this…

Have a good weekend!

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COA: Keeping Identity of IMR Reviewers Secret is Constitutional

January 31st, 2018 No comments

Are you ready for a post on IMR?  This is a good one, dear readers, because the Court of Appeal has, once again, upheld the IMR process as constitutional.  Not only that, the case of Zuniga v. WCAB was recently ordered published.

The facts aren’t particularly confusing and the ruling is pretty clear, but here’s a short summary.

Zuniga challenged an IMR determination as based on erroneous factual findings.  After prevailing on the challenge, the WCJ ordered a new IMR evaluation by a different reviewer.  However, the identity of the first reviewer (and the second reviewer) were kept secret.

Zuniga challenged the secrecy involved as a violation of due process, arguing that if he could not know the identity of the IMR reviewers, he could not, in fact, tell if the order of a new reviewer was being obeyed.

Basically, applicant was challenging the constitutionality of the IMR process as to keeping the identity of the IMR reviewers secret.  However, like every challenge to IMR to date, the Court of Appeal responded with a (now published) decision rejecting applicant’s arguments as to the constitutionality of IMR.

The COA reasoned that “confidentiality helps to ensure that IMR reviewers are independent and unbiased is reflected in an analysis of a proposed, but not adopted, change to the IMR process.”   Explaining further, the COA opinion cited Article XIV, section 4 of the California Constitution, that the Legislature is unlimited by the other provisions of the California Constitution to create and enforce a workers’ compensation system.  Thus, the due process clause of the California constitution does not limit the workers’ comp system (a fact that defendants, sadly, are all too familiar with).

The federal due process claim fails as well, as per the COA, because there is ample notice and opportunity to be heard, as per Stevens.

So IMR survives another challenge, and the defense community can rejoice as the UR/IMR process is probably the most effective cost containment win from SB-863.

That being said, your humble blogger has a hard time following the logic that leads to this result (as desirable of a result as this might be).  If the next reform found that the identity of Judges should be kept secret, would that be a due process violation?  After all, the parties can submit their arguments through trial briefs and the witness testimony can be video-recorded and provided to the Judge for review, and there will be no need for hearings because Judges can work remotely from the secrecy of their home offices… right?

Again, as desirable as this result is for the defense community (the IMR, not the secret judges – that’s just crazy talk), somehow this doesn’t pass the logic test on due process grounds.  Unless the party can independently confirm enforcement of the order or the rules involves (such as those requiring re-review by a NEW reviewer), how is compliance with the law to be confirmed?

 

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Former NY Giants Player and his WC Adjuster go down for Fraud

January 29th, 2018 No comments

Alright readers – we’re back! And I’ve got a GIANT story for you today!

Well, it’s a relatively quick story, but it does have to do with the Giants… in particular, a member of the Giants team engaged in workers’ compensation fraud.

Now, before you all lock shields against me for daring to impeach the honor of our beloved San Francisco Giants, you can all relax.  The fault, at least this time, lies with the New York Giants (but, in truth, the NY Giants are actually the victims of the fraud).

Marcus Buckley played for the New York Giants from 1993 to 2000, and then claimed a CT through January 2, 2000, for injuries to the head, neck, back, shoulders, and other body parts.  That case, set before the Anaheim WCAB, was resolved by way of C&R back in 2010.

However, according to this article, Mr. Buckley agreed to his $300,000 settlement and then proceeded to file additional false invoices and medical bills to get more money.  He ultimately collected about $1.5 million for these false bills before getting caught.

Now, if you’re thinking that the adjuster on the case must have been in on it to hand over so much money, you’re right.

(This one is from Star Wars – the Force Awakens; an apt image but a thoroughly disappointing film.  I challenge you, dear readers, to prove my appraisal wrong.)

Fortunately, Ms. Kimberly Jones of the TPA involved in this case also got a beautiful set of matching bracelets for her cooperation in this fraud, and is set to be sentenced in February.  Mr. Buckley has been sentenced to two years in prison and ordered to repay the money.

This is a particularly troublesome issue and one that carries the unfortunate sting of betrayal.  We can reasonably expect the thief to steal and the vandal to vandalize.  But such conduct besmirches the name of hardworking adjusters everywhere.

Your humble blogger is torn between wishing I could see how this pair was ultimately caught for my own education, but also realize that general dissemination of this information would make more clever thieves.

If nothing else, dear readers, this should be a reminder us all to be extra vigilant, sadly, from every vantage point.

Special Thanks to T.J.H. for sending me this article.

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Better Physical Therapy Through Robotics!

January 26th, 2018 No comments

Applicant Attorney: “HAL – please maximize this injured workers’ permanent disability.”

HAL: “I’m sorry Dave, I can’t do that.”

Happy Friday, dear readers!  I bring you some interesting news direct from Japan but landing in the United States – Japanese company Cyberdyne has received FDA approval for limited use of its HAL for Medical Use.  What is HAL?  It’s not a malfunctioning robot on a spaceship determined to add tension and suspense to a movie or a book.  It’s the Hybrid Assistive Limb product that is supposed to help and speed up physical therapy by supporting the movements of injured patients and gradually allowing them to do more and more walking on their own.

So, are your physical therapy clinics using something like HAL?  Perhaps – but if you’ve got an inherent resistance to gimmicks and new technology (Wheels are round and confusing! Fire scaaaaares me!)  Practically speaking though, if this method can expedited the effects of physical therapy, we might be looking at fewer PT sessions being necessary, shorter TD periods, and lower PD… then perhaps it’s worth it?

From the point of view of the physical therapist clinic, perhaps such devices can have benefits as well.  Could the clinics that employ assistive robotics devices like this reduce the frequency of injury among their employees and physical therapists?

It truly is amazing watching the practical application of robotics and technology as it forces its way into our little swamp that is workers’ compensation.  Regularly enough we keep a wary eye on Sacramento and its periodic legislative reforms to upset all our most fundamental notions.  Now we must keep our other eye firmly trained on the Silicon Valleys of the world for those robotic and medical advances that rendered our laws moot.

Have a good weekend!

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Go Time! Go Case Says TD and PD from Self-Procured

January 24th, 2018 1 comment

Happy Wednesday, dear readers… or, at least, it WOULD be if I had a better case to bring to your attention.

The matter is that of Sutter Solano Medical Center v. WCAB, a recent writ denied case.  The facts are fairly straight forward – applicant had an admitted injury to the neck.  Applicant’s PTP submitted an RFA for neck surgery, which Utilization Review denied.  Applicant then self-procured the medical treatment and demanded increased PD and TD resulting from the surgery.

If you are curious about the results of this issue, imagine your humble blogger’s normally grimacing face going into extra-grimace mode.  The WCJ and the WCAB both held that UR might shield defendant from liability for the medical procedure costs, but the resulting PD and TD claims are not defeated by Utilization Review.

In the immortal words of Pedro Chespirito, “no me gusta.”

The WCJ cited a 2009 panel decision (Barela v. Leprino Foods (ADJ3226482)) for the rule that UR does not bar PD or TD, only liability for medical treatment.

The panel added to the reasoning by noting that there are generally two methods of obtaining treatment.  That treatment provided by the employer, subject to UR and IMR, is held to the standard of being reasonably necessary to cure or relieve from the effects of the injury.  However, the panel noted that this standard is not applied to self-procured medical treatment.  Which, of course, your humble blogger reads to means that an injured worker can seek out and pay for unreasonable methods of treatment – and the unreasonable aspect of the treatment can both be as to the method and the risks involved.

The panel decision concludes by inviting the legislature to get involved if the legislative intent is to allow UR denials of medical treatment authorization to extend to resulting TD and PD.  As much as your humble blogger would like such a legislative amendment, in my limited experience, seeking legislation is poking the bear – the “reforms” that come from legislation end up create more litigation (which is great for defense attorneys like me!) but also creating more exceptions, loopholes, limitations, and harm for employers.

After all, the reform of SB-863 essentially enshrined Almaraz/Guzman as part of the law rather than repealing it.  And, even though Ogilvie is essentially dead for post 1/1/13 dates of injury with the elimination of diminished future earnings capacity, we now have a body of law holding that a “forceful blow”, like a slip-and-fall, is an act of violence.

Anywho, there is sufficient panel authority out there to support this conclusion, but, conceptually, your humble blogger has a hard time following the logic.  UR has made a determination that a particular method of treatment is not reasonably necessary.  If the applicant proceeds with this treatment isn’t it, legally speaking, unreasonable?

Additionally, why isn’t this being treated as the functional equivalent of a non-industrial injury?  Had applicant sustained another injury subsequent to being found P&S, even a non-industrial injury, wouldn’t we expect the evaluators to apportion accordingly?  If Applicant had X permanent disability before the surgery (or the pretend non-industrial injury) and now has Y permanent disability, shouldn’t her level of PD still be X?

One of the points of reasoning in reaching this conclusion was that the PTP and the AME both agreed that applicant’s surgery was necessary.  Isn’t that the point of UR – to determine if the treatment is thus?  AMEs are even prohibited from addressing matters reserved for UR and IMR, as per Labor Code section 4062.2(f).

In short, what is to prevent an employee from taking unnecessary medical treatment risks, and forcing the defendant to bear the costs of failed or even technically successful procedures?

In the instant case, applicant underwent a serious surgical procedure at her own expense, and the medical professionals involved, whatever the weight or relevance of their opinions as to the proceedings, reasonably opined that the procedure was necessary.

Now let your imagination wander away from this scenario and look at some… “other” forms of treatment.  In Ukraine (or, the Ukraine for my American friends) people are treated with radon baths for orthopedic injuries.  Would the resulting lung cancer and related benefits be the responsibility of a defendant?

I bet a little bit of google digging would find all sorts of… unusual… methods of treatment, including administering snake-bites, prolonged “faith healing” including refusal of any medicine in the interim, or exorcism.  Are defendants supposed to be on the hook for all the fallout from these things?  Believe me, dear readers, I have had cases where the PTP or QME decides that the radon baths are “reasonable” even though there was never an RFA, let alone UR and IMR.

So, what do you think, dear readers – is it worth it to open Pandora’s Box with new legislation on this?  Or is this a rarity and applicants will rarely self-procure?

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LAPD Civilian Employee Charged with WC Fraud

January 22nd, 2018 No comments

Alrighty dear readers – another weekend down and another week is up.  Are you ready?

Now, come on, don’t be like that – before you know it retirement will be knocking on your door, and you’ll get to grumble about not getting to come into work anymore.

As the old song goes… enjoy yourself, enjoy yourself, it’s later than you think.

But, what if there were a way to combine the best parts of work and retirement?  Well, one retired LAPD Civilian Employee tried to do just that and is now facing charges for felony insurance fraud.

A certain criminal defendant, who remains nameless because there is no conviction, retired from his job with the LAPD, but an investigation revealed that he was not only exaggerating the extent of his disability, but also had secondary employment, all while (allegedly) receiving temporary disability benefits.

I think we’ll get more details about what happened, specifically, as time goes on.  We might also get some tips of how the alleged fraud was discovered.

In the meantime, we should all be reminded that we must remain constantly vigilant to make sure applicants are not getting benefits without justification – no matter how noble of a profession or calling the applicant had at the time of injury.

Now, back at it, dear readers!

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