The Medical Specialty of a Qualified Medical Evaluator Panel.  Parties often live and die by the specialty.  Defendants pull for orthopedists and applicants pull for chiropractors, and in almost every case involving a medical dispute, swords are drawn, muskets are primed, and blood is shed over which panel specialty should be controlling.  Dear readers, by blood, I of course mean money in the form of litigation dollars – but for every business, and every business is to this humble blogger of some concern, blood is green and comes in paper form.

And let it be known to every workers’ compensation Judge in the land, parties will not hesitate to take the matter to trial, or even before the Workers’ Compensation Appeals Board if necessary.  Such was the case in Paula Lecocq v. Associated Feed & Supply Company.  There, the parties had a dispute over which panel specialty controlled (neurology or orthopedic surgery).  However, the WCJ made a decision and entered a Finding and Order at the Mandatory Settlement Conference, overruling defendant’s request for a trial on the issue.

If anyone had any thoughts about the matter being resolved by simply denying a trial, the Workers’ Compensation Appeals Board managed to turn things around in a very simple and straightforward opinion.  Granting defendant’s petition for removal, the WCAB held that WCAB Rule 10353(a) “[the WCJ] shall not hear sworn testimony at any conference.”  Therefore, because there was no agreement of the parties and no record upon which a decision could be based, the WCJ must allow a trial on the issue.

So the defendant will have his day in court, and will have a decision to seek removal of if it comes to that.

Now, imagine if you can, dear readers, the (green) blood that was shed in resolving this issue.  Even for some biased and inconsiderate people who giggle gleefully at the thought of employers and insurers having to waste money to litigate an issue, the time of the WCJ, the WCAB commissioners, and all the support staff and clerks was wasted on this dispute.  And it will be wasted again and again in this case (for a trial and an appeal) and in every single cases in the EAMS system.

The panel specialty is important and can determine a lot about a case – this is evidenced by the fact that both applicants’ attorneys and defense attorneys are willing to put in the time to fight about it.  IT IS IMPORTANT!

Often enough, on this blog and in the considerably less family-friendly environment of this attorney’s thoughts, your humble blogger has mused about the fact that there should be a rule that, if given enforcement consistently and uniformly, would put to rest this needless litigation and its senseless expense.

If only a rule existed that required the treating physician’s specialty to be controlling of the panel specialty.

Perhaps the pending reforms will bring us just such a delivery!

A work-related injury takes its toll in many ways.  It takes its toll on the worker, who might have to live with permanent impairment and possibly even a change in career.  It hurts the employer by depriving it of a (formerly) productive employee, increasing its insurance rates, and requiring it to walk the thin line between unreasonable losses due to a work vacancy, or risk sanctions and lawsuits for a pantheon of broken laws.

But, really, the work-place injury hurts an often silent party – the worker’s family.  Although death benefits are available in fatal injury cases, the same benefits for a Sunday afternoon car accident on the way to the grocery store aren’t available for a Tuesday morning collision while delivering bread to the same supermarket. 

Loss of consortium is that claim that family members make for loss of society – for being deprived of the benefit of a healthy and uninjured family member.  This ranges from basic family events such as picnics, baseball games, and dinners together, to interference of the more private relations between husband and wife.  Can an injured worker’s spouse sue the worker’s employer and/or insurer for loss of consortium?

No.  Not no, but heck no, according to the California Supreme Court, which recently issued a published opinion on this very issue.  In the case of LeFiell Manufacturing Co. v. Superior Court of Los Angeles, SCOC (that’s Supreme Court of California), the Supreme Court ruled in favor of the employer, reversing the Court of Appeal and instead ruling that loss of consortium is not an available benefit resulting from an industrial injury.

An injured worker filed a claim under the “power press exception” to the exclusivity of workers’ compensation, alleging the necessary elements.  An additional claim was stated as loss of consortium for the employee’s wife, who joined as plaintiff in her own right, alleging that “she had been deprived of [the injured worker’s] services in the care and management of their home and family, and of his ‘necessary duties as a husband’.”  The Court of Appeal and the Supreme Court expressly rejected that claim on procedural grounds – it could not proceed and nothing could be claimed from it. 

The Court reasoned that “where, as here, the worker’s power press injuries do not prove fatal, the Legislature has expressly restricted standing to bring the action … to the injured worker alone.” (Emphasis in original.)

Now, bear in mind, dear readers, it is not with a smile or with any pride that your humble blogger writes this, but it appears that a piece is missing from the jigsaw puzzle.  The state has regulated the relationship between the employee and the worker in cases of industrial injury, providing some sort of compensation for losses due to injury.  But the employee’s spouse and family members are not in this relationship – they are being deprived of a benefit (a healthy family member) without any recompense. 

Although the workers’ compensation system provides a trade-off of faster available benefits with a lower burden on the moving party (the worker), it provides nothing for the family members of the injured worker.  After all, we all have responsibilities at home – when we’re not on the clock, we are painting walls, changing the oil, cooking, cleaning, gardening, and/or raising kids.  Our families reasonably expect our participation in the “care and management” of our homes.

Sometimes, medical care in the form of in-home care, including cooking, cleaning, lawn care, and nursing services, can be provided as “reasonable medical treatment” for the injury.  But can anyone be hired to discharge the ‘necessary duties as a husband’?  Before you rush to the comments section to post your suggestion, please remember that this is a family-friendly blog!

Far be it from your humble blogger, heartless lawyer that he is, to ever argue in favor of increasing liability for the employers, who have enough costs and burdens to deal with in California as it is.  But something about this decision does not sit right with this attorney’s crooked sense of conscience.

The California Workers’ Compensation Insurance Rating Bureau is set to recommend a 12.6% increase in workers’ compensation insurance premiums for new and renewing policies as of 2013, raising the average rate from $2.38 per $100 in payroll to $2.68.  For context, Arizona’s rate in 2010 was $1.71 per $100 in payroll.

The Insurance Commissioner is often bemoaning the “underground economy” and does not miss many opportunities to champion the arrest, prosecution, and, ultimately, the destruction of the businesses that find it simply unaffordable to purchase workers’ compensation insurance.  How can a small business, barely making any money, continue to make payments in the face of increasing insurance costs?

Often enough, small business owners have barely any money to pay themselves, let alone their employees.  More insurance increases means (1) fewer jobs; (2) fewer businesses in California; and (3) more business driven into the underground economy, costing California tax revenue and bloating the budget necessary for investigation, prosecution, and enforcement.

At the same time, this is a clear indicator that workers’ compensation expense is going up, even as participants see a decrease in services — workers’ compensation Judges are being overwhelmed with demands on their time, lien claimants are swarming like locusts, and the Medical Unit has so many requests that it fails to follow its own rules in issuing panels.  Perhaps reforms are needed now, and lots of them!

As a classmate of your humble blogger once told his fellow visitor to the drunk tank, there on his third DUI, “it doesn’t look good.”

Hear now, dear readers, of the case of Daniel Prather v. City and County of San Francisco.  Mr. Prather sustained an injury to his back over a period of time ending in 2002, at which point he was 53 years old.  (On a completely unrelated note, what is the retirement age, if any, for employees of San Francisco?  Applicant apparently now splits his time between his home in Illinois and his home in San Francisco).

The parties retained their own Qualified Medical Evaluators, and applicant’s QME found applicant to require a wheelchair to ambulate unless the distance was less than 100 yards, in which case applicant could move around using crutches.

But then defendant raised the issue of apportionment – applicant had five back surgeries since his claimed date of injury, and had been diagnosed with pre-existing lumbar scoliosis, and at least some of his permanent disability was due to “the progression of this condition over a period of many years.”

But how much apportionment is appropriate under Labor Code section 4663?  Defendant’s QME apportioned 1/3 of applicant’s impairment to the non-industrial scoliosis.  Applicant’s QME, however, was silent on the matter and did not address apportionment in his report.  Why didn’t the parties just request a supplemental report?  Because applicant’s QME had retired and was no longer available.

Your humble blogger has a question which neither the WCJ’s report nor the panel opinion answers – Labor Code section 4663, subsection (c) states in pertinent part: “[i]n order for a physician’s report to be considered complete on the issue of permanent disability, the report must include an apportionment determination.”

If applicant’s QME failed to include an apportionment determination, then how could the findings of the QME with respect to permanent disability be considered complete?

This lawyer understands that this is a 2002 date of injury claim, which precedes the 2004 implementation of Labor Code section 4663.  However, the report on which the WCJ relied was dated December 3, 2008, and if some of 4663 applies to pre-2004 claims, why not all of it?

As applicant’s QME was retired, the WCJ relied on the defense QME’s apportionment opinion, apportioning 1/3 of applicant’s disability to the non-industrial scoliosis.  Applicant petitioned the Workers’ Compensation Appeals Board for reconsideration, and the WCAB granted.

The WCAB found that defendant’s QME’s opinions with respect to apportionment were not substantial evidence because “the degree and/or progression of applicant’s scoliosis was not documented and [defendant’s QME] does not explain how or why he attributed one-third apportionment to the scoliosis as opposed to some other percentage.”

As neither report was complete with respect to apportionment, the WCAB ordered the WCJ to develop the record further, allowing the parties an opportunity to agree to an AME, or, in the alternative, appoint an regular physician in accordance with Labor Code section 5701 to evaluate applicant and, presumably, develop the record.

The Workers’ Compensation Appeals Board recently denied applicant’s petition for reconsideration on the issue of Labor Code section 132a in the case of Sharon Poole v. Primed Management, Inc.  The workers’ compensation Judge recommended that reconsideration be denied on procedural grounds (failure to file a verified petition and failure to serve the employer), and on the merits – applicant’s 132a claim did not meet the standard of discrimination set out in Department of Rehabilitation v. Workers’ Compensation Appeals Board (Lauher).

Unfortunately, the WCAB did not reach the merits issue and based its opinion on procedural grounds.  However, the WCJ’s report lays out the facts of the case – applicant was having discipline issues before she filed an application, and the eventual termination of her employment was related to her ability to meet production demands (a fate her career shared with many other employees who worked for this company).

The WCJ pointed out that it doesn’t matter if the applicant claims that the employer is a jerk, or the employer demands too much of its employees, or that the production quotas for employees are “unreasonably” high.  So long as the worker who hurt his knee skiing is held to the same standard as the worker with industrial carpal tunnel, 132a does not kick in.

Even if applicant comes back and says “hey, it was my industrial injury that caused me to perform poorly,” shouldn’t the inquiry focus on whether it was the industrial nature of the injury, rather than an injury that happened to be industrial, that caused the poor performance?

The employer in this case was saved by the fact that applicant’s sub-par performance was documented and a trend of reprimands had begun before the filing of the application (remember, dear readers, a trend is your friend!)  If you’re dealing with a “trouble” employee, document the problems as much as possible – you never know when you’ll be facing a self-inflicted or non-industrial injury claim and a 132a to boot!

The Workers’ Compensation Appeals Board recently denied applicant’s petition for reconsideration on the issue of Labor Code section 132a in the case of Sharon Poole v. Primed Management, Inc.  The workers’ compensation Judge recommended that reconsideration be denied on procedural grounds (failure to file a verified petition and failure to serve the employer), and on the merits – applicant’s 132a claim did not meet the standard of discrimination set out in Department of Rehabilitation v. Workers’ Compensation Appeals Board (Lauher).

Unfortunately, the WCAB did not reach the merits issue and based its opinion on procedural grounds.  However, the WCJ’s report lays out the facts of the case – applicant was having discipline issues before she filed an application, and the eventual termination of her employment was related to her ability to meet production demands (a fate her career shared with many other employees who worked for this company).

The WCJ pointed out that it doesn’t matter if the applicant claims that the employer is a jerk, or the employer demands too much of its employees, or that the production quotas for employees are “unreasonably” high.  So long as the worker who hurt his knee skiing is held to the same standard as the worker with industrially-caused carpal tunnel, 132a does not kick in.

Even if applicant comes back and says “hey, it was my industrial injury that caused me to perform poorly,” shouldn’t the inquiry focus on whether it was the industrial nature of the injury, rather than an injury that happened to be industrial, that caused the poor performance?

The employer in this case was saved by the fact that applicant’s sub-par performance was documented and a trend of reprimands had begun before the filing of the application (remember, dear readers, a trend is your friend!)  If you’re dealing with a “trouble” employee, document the problems as much as possible – you never know when you’ll be facing a self-inflicted or non-industrial injury claim and a 132a to boot!

Sit back, dear reader, and listen to the story of the case of Sandra Malvesti v. Round Valley Unified School District.  The issues of the case in chief aren’t nearly as important as what followed, when applicant’s counsel hungrily pursued the attorney’s fee.

The case had previously settled by way of stipulation, with future medical treatment included, but when applicant claimed a (quelle surprise!) new and further disability, the case eventually resolved by way of compromise and release.  Applicant’s lawyer requested a fee of 12% of the new settlement amount ($14,202.00).

Stick with me folks, here’s where it gets interesting.

The workers’ compensation Judge initially refused to approve the compromise and release, reducing applicant’s attorney’s fee because the future medical treatment was already acquired with the prior stipulations, for which applicant’s counsel already received a fee.  The WCJ was also concerned with some of the terms of the method of payment, including an annuity company.

The applicant’s attorney then produced a letter signed by applicant, begging the WCJ to approve the settlement so that applicant would not lose her house – she really needed the money!  In the letter, applicant made clear that she had no objection to the attorney fee, and just wanted the matter settled and paid.

The WCJ approved the settlement with the reduced fee, and applicant’s counsel promptly petitioned the Workers’ Compensation Appeals Board for reconsideration.  In reviewing the case, and please keep the above video in mind, the WCAB noted a letter from applicant (and not applicant’s attorney) which “accuses [applicant’s attorney] of engaging in what may be unprofessional conduct to obtain her consent to his fee request.  In substance, applicant is alleging that [her attorney] used both his claimed financial situation and that of applicant to coerce her to consent to his fee request as a condition of getting timely action on the [C&R].”

And what is the reference to applicant’s counsel’s own financial situation?  The applicant wrote that her attorney “personally asked me to sign an additional letter during this phone call stating he had not paid his house payment for 5 months, could not pay his staff and could not afford groceries for his family, … I was afraid if I did not sign the letter I would once again be put on the ‘back burner’ and my case would still be ongoing.”  (Pack your bags, boys!  We’re going on a guilt trip!)

The WCAB ordered the matter returned to the WCJ to determine if the applicant’s story holds water.  If it does, then questions of the ethical practice of law need to be explored.  If, however, it doesn’t, then applicant’s attorney is to receive the full fee, including a portion of the Medicare Set Aside, as held in the case of Robert Viale v. Lockheed Martin Corporation.  (It looks like applicants’ attorneys can expect a slice of the MSA pie as well).

As always, WCDefenseCA has declined to name names, but if your humble blogger was in this attorney’s shoes, he would drop this issue immediately and forfeit the seven thousand.  Every lawyer wants to be known by all, but not for this, one way or another.

The times, they are a-changing.  It looks like reform might be coming down the pipe pretty soon, and, courtesy of the Business Journal, your humble blogger has gotten his hot little hands on a summary of proposals.

Reviewing this summary of the proposed changes to the law, one must wonder about what fate awaits us in California.  For example, one of the proposed changes is the Independent Medical Review system, which would apparently resolve Utilization Review disputes while also narrowing the Workers’ Compensation Appeals Board’s jurisdiction over medical treatment disputes.

Other proposals include the Independent Bill Review process, which appears to be aimed at cutting down on the insane flood of liens that are strangling the workers’ compensation system; eliminate the spinal surgery second opinion process and refer the matter, instead, to the IMR; provide a minimum filing fee for liens, recoverable should the lien claimant prevail, and other excellent ideas.  An amendment to the California Constitution making this blog required reading is strangely absent from the list… lobbying dollars wasted once again!

Another one of the interesting ideas present is found in bullet point 16 of the summary – “Streamline the Agreed Medical Evaluator (AME) and QME process to eliminate unnecessary delays and friction in the system.”  Almost every contested case has a hearing on the QME specialty.  Applicants want chiropractors and pain specialists, defendants want orthopedists.  The rule clearly states that the treating physician specialty should control the specialty of the QME.

One can only hope that part of these reforms will be to give teeth to Rule 31.1(b) so that these needless hearings can be avoided.

Your humble blogger intends to keep his keen eyes on this one, because there is a good chance that several of our gripes and complaints may end up being resolved should these reforms go through.  After all, what better sign could we have as to the practicality and good qualities of these  reforms than the opposition of the California Applicants’ Attorneys’ Association?

And your humble blogger also hopes his beloved and much-appreciated readers will keep their keen eyes glued to this blog for the weeks to come for more thoughts of these (potential) reforms.

The Court of Appeal recently denied applicant’s petition for a writ of review in the case of Sharon Dunnigan v. City of Inglewood.  Applicant has engaged in a long and drawn-out quest for free home health care services, including cleaning services, following her injuries which resolved by way of stipulation to the tune of 50% future medical treatment.

The workers’ compensation Judge initially awarded applicant home care services as a form of reasonable medical treatment, but the defendant sought reconsideration by the Workers’ Compensation Appeals Board.

The WCAB, in a November 21, 2011 decision, found that defendant had a valid point – applicant failed to prove that home health care services were reasonably necessary.  At his deposition, the Agreed Medical Evaluator responded to questions about applicant’s need for home health care services by requesting additional information about what needs to be cleaned and how often it is cleaned.  The key line from the WCAB opinion?

“Although, when read in isolation, portions of [the AME’s] testimony appear to support a need for certain undefined housecleaning services, [the AME] admits over and over in his deposition that he has insufficient information to render a valid opinion.”

Because the good doctor never expressly stated that any specific housecleaning services were reasonably required to relieve the applicant from the effects of the injury, applicant failed to carry her burden of proving entitlement to a butler and maid.  And now, it appears, the Court of Appeal is of little help to her either.

Now, before you start calling your humble blogger cruel and heartless, I tell you that I take no pleasure from the suggestion that the poor applicant will now have to live in a dirty house covered in dust and cobwebs, with garbage piling up around her.  That being said, my lawyer’s mind sees this situation as one of two possible fact-patterns:  either applicant can clean the house herself and is just lazy, or applicant really can’t clean her home because of her impairment and needs the help.

If she’s just being lazy, I have no sympathy for her, and neither should you – she’s just milking the system and trying to shake down the defendant for unwarranted money.

If she’s not just being lazy, and her impairment prevents her from cleaning her own home, then why didn’t she pay attention to the AME when he was testifying at deposition?  The good doctor is clearly saying that he needs more information before he can provide an opinion – so why not give it to him?  Schedule a re-evaluation (defendant is paying for it anyway) or provide a letter describing the house and the cleaning activities it requires.

The fact that applicant did not follow up with the AME restrains my typically bleeding heart from gushing forth over and equally keeps my sharp attorney’s eyes from crying my dear readers a river over her plight.

Check the tags on your clothes.  Depending on where they were made, you might very well be wearing the bitter fruit of a law-breaking business, one which was investigated by both federal and state labor offices for, among other sins, failing to obtain a workers’ compensation policy for its employees.

10 garment factories in Southern California have been investigated, revealing some 11,000 workers pulling 10-12 hour shifts making garments without workers’ compensation coverage.  Can you imagine the cumulative trauma, psyche injury, and laundry-list of claims that could be generated by 11,000 workers spending exactly half of each day hunched over a table working?

There are many employers that do not get workers’ compensation insurance for their employees.  Sometimes, these are small operations or family businesses that don’t know about the law, or are under the mistaken impression that their employee is actually a contractor.

Although you have cases such as this one where the employer knowingly doesn’t get insurance.  This provides an unfair competitive advantage when it comes to lower prices, and drives the law-abiding businesses into the red.