From time to time, dear readers, your humble blogger has been asked why he does not comment on unpublished decisions.  As you know dear, readers, unpublished decisions are un-cite-able (although your humble blogger has a crackpot idea on how to get around that one and is waiting for an opportunity to try it).  This fine workers’ compensation defense lawyer asks you to take Hart, as you read the following employer-unfriendly post.

In the case of Hart v. Workers’ Compensation Appeals Board and Chief Auto Parts Auto Zone, applicant had a string of defeats until the case came before the Court of Appeal.   Applicant claimed he sustained an injury in 1999, and the matter was initially resolved, only to be reopened in 2004 for additional impairment both in the form of pain and to applicant’s functionality.

The parties stipulated to temporary disability for a time, primarily based on applicant’s injury to his shoulders (this was one of those cases where one shoulder was injured, leading to over-use and subsequent injury to the other).  The parties convened for a trial in 2009, at which time the workers’ compensation Judge issued a ruling on the raised issue of right to medical treatment for the shoulders.

However, when applicant sought additional temporary disability benefits because of impairment due to the cervical spine and neck, the defense cried havoc and let slip the dogs of war.  The cut-off date to claim new and further disability had been 5 years since the date of injury (1999) and had never raised the cervical spine or neck as a claimed body part until the 2011 trial on the issue.  If your humble blogger knew how to math (yes, math is a verb in this case), he could tell you exactly how many years has gone by since the date of injury.  However, using his fingers, he can estimate that at least five years had passed since the 1999 injury by the time the cervical spine was being claimed in 2011.

So when the issue came before the WCJ, the ruling went in favor of the defense and barred this late addition of a new body part.  The WCAB adopted the WCJ’s reasoning.  Unfortunately, the Court of Appeal did not agree.  The Court held that because the 2009 trial did not address the issue of applicant’s cervical spine claims, the matter was not properly heard before a decision on cervical spine-based TTD was made.

Additionally, the Court reasoned that temporary disability is a benefit made available in place of lost wages until the applicant’s condition is stabilized.  If applicant’s original injury is still causing applicant to not be permanent and stationary, even if it is in a new body part, then the applicant is still entitled to TTD.

On the bright side, however, the Court ultimately held that it “expresses no opinion as to what the ultimate ruling should be” with respect to applicant’s entitlement to temporary disability, so the defense will still have a chance to escape liability for more TTD.

It hasn’t been a good week for lien-claimant Alan Moelleken, M.D., on this humble blog of all things workers’ compensation.  In the case of Ricardo Zuniga v. Barrett Business Services, Inc., Dr. Moelleken had just recovered the cost of medical treatment through an award given by the workers’ compensation Judge on the case when the defendant petition the Workers’ Compensation Appeals Board and won a reversal.

Dr. Moelleken filed a lien for almost $9,000, after defendant had paid only $666.80 of the bills on the grounds that there was a valid Medical Provider Network in place and Dr. Moelleken was not in it.

The workers’ compensation Judge had reasoned, to Dr. Moelleken’s unending delight, that, although the defense had entered into evidence copies of letters sent to applicant (notifying him of the MPN) and to lien claimant (objecting to any treatment and putting it on notice that its bills would not be paid), there was no evidence that the letters were received.  Furthermore, the defense failed to put into evidence a value for the services provided other than zero.

The WCAB took a different approach.  With respect to the defendant’s burden of proof in showing that letters were received, the WCAB held that the “letter from defendant to applicant … is prima facie evidence of delivery of required notice to applicant of his rights under the MPN.”

But, the issue of the MPN defense aside, the WCAB went further to note that the lien claimant failed to carry its burden.  The burden of proving all elements of a lien fall on the lien claimant, including that the medical treatment provided was reasonably required to cure or relieve the injured worker from the effects of an industrial injury and that the claimed fee is reasonable.

Perhaps this goes to show that the one remaining tooth after the sad reversal in the Valdez case remains firm and sharp – even if an applicant ventures outside of an MPN, the defense does not have to pay the bills for it.

An exciting development in the ongoing insanity that allows non-California athletes, and by extension, all visiting employees, to file workers’ compensation claims in California.  In the case of Bruce Matthews v. National Football League Management Council, the 9th Circuit Court of Appeals ruled that applicant Bruce Matthews does not have the right to file a workers’ compensation claim in California, despite the fact that he did play 13 games in the Golden State.

Matthews had tried to exploit a loophole in California’s workers’ compensation system to pursue his claim in California, despite never playing for a California team in his over-twenty-year career.  His team and the NFL Management Council sought to enforce an arbitration agreement to require Matthews to bring his claim in Tennessee.

The 9th Circuit Court of Appeal was not impressed.

The reason?  “In his application for workers’ compensation benefits, Matthews asserted that he suffered cumulative injuries incurred at “various” locations between 1983 and 2001. He did not allege any specific injury in California … Indeed, Matthews did not even allege that he played football in California, although we take judicial notice of the fact that Matthews’ teams played 13 games in California during Matthews’ 19-year career.”

So what’s the 9th Circuit looking for?  Well, it looks like an applicant needs to show signs of a discrete injury, the use of California’s medical treatment system, and perhaps the use of California’s legal system in pursuing the case.  But perhaps this means that the 9th Circuit does not recognize the legal fiction of the cumulative trauma?  After all, several states only recognized “discreet injuries.”

But, most important of all, the 9th Circuit reasoned that the claim would be barred in California…  Obviously wcdefenseca is still not considered a learned treatise.

What is the extent to which a lien claimant can litigate the causation of an industrial injury?  In the case of Travis Brock v. Ron’s Plumbing, Heating and Air Conditioning, lien claimant Alan Moelleken, M.D., sought to re-litigate the issue of AOE/COE in an effort to enforce its lien.

That issue had been one of several at a trial which the applicant lost and the defendant won – applicant had failed to carry his burden of proving that the injury he allegedly sustained arouse out of employment and was sustained in the course of employment.

Well, if there was no industrial injury, and defendant is not liable for applicant’s medical treatment, then what rights does a medical treatment lien claimant have to any such recovery?

According to this case – none.  Not even, much to lien claimant’s dismay and your humble blogger’s delight, the right to litigate, or rather re-litigate, the questions of causation.

Lien claimant in this case presented the argument that, even though applicant failed to prove that the injury was industrial in nature, lien claimant could do a better job and get the job done.

Fortunately for the defense, the workers’ compensation Judge and the Workers’ Compensation Appeals Board both saw this claim for exactly the maneuver that it was.  Lien claimant was attempting to wear down the defense by forcing it to pay the litigation costs of a second trial.  The WCJ’s response was correctly stated:  “Lien Claimants are collaterally estopped from again litigating the issue of injury AOE/COE.”

Good news, dearest readers, good news!  Workers’ compensation defense attorneys often enough have to provide bad news, but today is an exception.

Bearing the hopes and dreams of the defense community, the defense in the Valdez case has filed a petition for a writ of review before the California Supreme Court.

As you may recall, the Valdez case has been an emotional and legal rollercoaster for all the lawyers and adjusters in California, as it first gave the Medical Provider Networks considerable teeth in an en banc decision before making it once-more toothless in a subsequently published Court of Appeal opinion.

If the Supreme Court elects to review the case, it will have to decide what the legislature intended in allowing for MPNs.  Was it just an effort to limit the medical expense imposed on the defense by pre-negotiating the costs of medical treatment for (allegedly) injured workers?  Or did the legislature intend to provide a middle-ground of medical-legal opinions?

It is my understanding that the Supreme Court Justices are regular readers of this blog, so I shall offer my reasoning and submit it to those Justices for consideration.

Prior to the “big reform” of 2004/2005, the parties used to retain their own Qualified Medical Evaluators; now there is a panel process that removes some of the choice from the parties.  The legislature most likely intended to do the same thing with the treating physician.  After all, the defense can create a medical provider network and the applicant may choose a treating physician from within that network, which should include at least 3 physicians of every specialty.

If, as the Court of Appeal found, reports of non-MPN treating physicians are admissible, hasn’t the applicant’s right to an Applicant Qualified Medical Evaluator survived the reforms and the defied the Legislature’s intent?  After all, an applicant with no exposure to the workers’ compensation system will likely defer to his or her attorney in terms of treating physician, and the applicant’s attorney probably knows a few physicians in each specialty that tend to… well… give undue weight to subjective signs of impairment.

Here’s hoping that the Supreme Court grants review and gives the MPN its teeth back!

Happy Friday!

This is going to be a fantastic weekend for all of your humble blogger’s wise and loyal readers.  Years of exposure to the radiation of workers’ compensation has gifted this workers’ comp. attorney with foresight, and he is sure that good times will be had by all these coming days.

With that, allow his humble blogger to send you off with an interesting story.

Recently, through the generous consideration of a reader, I have gotten in my hot little hands the opinion of a workers’ compensation Judge disallowing the lien of a medical group.  Now, to protect the innocent, and to some extent the guilty, I’ll have to refrain from naming names… as much as I might like to.

That being said, the opinion is a fantastic one for highlighting some of the red flags that should go up, especially when dealing with lien claims.

In this case, the allegedly injured worker claimed a pantheon of hurt body parts from head to toe after lifting a tire.  These body parts, of course, included head, neck, shoulders, chest, ankles, hearing problems, abdominal pain, psyche, sleep disorder, depression and sexual dysfunction.  (Folks, again, I do not make these up.  I don’t think I could come up with wackier stories than those that actually go on in the workers’ compensation system.)

Within eight days of this alleged injury, the lien claimant had already run up a bill of over $2,000, including EMG and NCV studies, multiple toxicology studies, and ten supplemental reports as well as 5 PR-2 reports.

Then the referrals started.  Pain management, sleep latency testing, more sleep studies, internist evaluations, etc.

So what were the red flags for the workers’ compensation Judge?

Legalese – in his initial report, the “injured” worker claimed several body parts as compensable consequence.  Legal terms at this stage of the claim should give rise to a lot of concern as it indicates that someone is trying to “game the system” as the kids say.

Laundry-list of body parts – from lifting a tire, which could perhaps be granted as a back injury, every conceivable body part was claimed as injured.  The WCJ aptly noted that the “account of symptom development strains credulity.  There is no plausible explanation of how lifting a tire… caused injury from neck to ankles and chest to hands.”

Applicant didn’t testify – the fact that the applicant did not testify at trial is not always a red flag, but it is definitely worth noting.  When a party refuses to testify, my natural assumption (rebuttable though it is) gravitates towards the fact that the testimony is under penalty of perjury.

Russian Novel of Medical Reports – There is no conceivable reason why there should be more reports than days following an injury.  The fact that fifteen reports were generated eight days after the injury suggests a feeding frenzy for medical bills.

So keep alert, dear readers, because when you’re able to point these red flags out to the WCJ, you’re more likely to get a gem of an opinion such as the one that graces my work desk as this post is written.

Have a good weekend!

What happens when your boss has his employees come and “assault” you?  Remember, assault is defined as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another”, and that is what was claimed in the case of Ristow v. County of San Bernardino.  There, an employee claimed that San Bernardino District Attorney Michael Ramos, after the fallout of a media-discovered… “relationship” between the Honorable Ramos and Ms. Ristow, ordered his investigators to come to her home to deliver a letter, apparently with their hands on their guns.

Among other causes of action, Ms. Ristow claimed that she was the tort-victim of an assault by these investigators.  In response, the County punted the claim into your humble blogger’s domain, saying it belonged to Workers’ Compensation and not the civil lawsuit world.

What result?  The Trial Judge granted defendant’s demurrer, and plaintiff appealed.  On appeal, in an unpublished decision, the Court of Appeal upheld the demurrer, holding that unless the harm was “proximately caused by the willful and unprovoked physical act of aggression of the other employee,” Ms. Ristow cannot proceed in civil court.

Although the DA is technically a county employee, as was Ms. Ristow, the facts, as alleged, give rise to the theory that the DA merely conspired to have Ms. Ristow assaulted, rather than conducting the assault himself.

Because there was no physical act of aggression by Ramos himself, and no pleading to the effect that another employee committed an act of physical aggression against Ms. Ristow, her claim is condemned to the maze of the workers’ compensation system.

Ms. Ristow, as so aptly put by my dear friend Dante, “abandon all hope, ye who enter here.”

It is with some reluctance that your humble blogger writes this post, grudgingly agreeing with the applicant’s position in the case of Yesenia Guillen v. Adrid International, LLC.  Normally, your humble blogger only agrees with an applicant’s withdrawal of his or her claim, followed by an expedition return to work and a most sincere promise to be more careful in the future.  Here, however, applicant is in the right when it comes to the mandatory 10-day “conferral” period following the issuance of a panel.

In Guillen, the parties were issued an Orthopedic specialty panel and, waiting but six days, applicant struck a name from the list of physicians.  Defendant did not respond to the strike.  Instead, Defendant proposed the use of one of the names on the panel as an Agreed Medical Evaluator, and then, receiving no response from applicant, struck a name on the thirteenth day.  Applicant made no response and Defendant proceeded to select the Qualified Medical Evaluator it had originally proposed as an AME as the PQME for the matter and scheduled an appointment for the applicant.

When the applicant did not appear for her evaluation, the matter proceeded before a workers’ compensation Judge to address the question of whether applicant’s “premature” strike was ineffective because Applicant did not wait to strike until after the 10-day conferral period prescribed by Labor Code section 4062.2.

The WCJ held that the strike was ineffective and that, essentially, the 10-day waiting period was mandatory.  Responding to applicant’s petition for reconsideration, the Workers’ Compensation Appeals Board first noted that applicant’s attorney should have instead filed a petition for removal, as discovery  orders, such as panel issues, are not final orders.

However, treating applicant’s petition as one for removal, the WCAB held that the 10-day conferral period once a panel has been issued is not mandatory.  The non-striking party still has the full 10-day conferral period plus three working days in which to make its strike.

Prior to this non-binding panel decision, your humble blogger observed some parties communicating their strike with the caveat that the strike is effective the “first working day a party has the right to strike a name from the panel.”  This is a caution approach and a practical one, noting that often enough the names of a panel are clearly not AME material, especially in cases where the injury is denied.

I note here, however, that the applicant’s lawyer should have been required to take further action.  Once an appointment has been noticed, applicant should have responded to opposing counsel, perhaps providing a carbon copy to the selected PQME, explaining that applicant will not attend the evaluation.  This will avoid the no-show costs no-doubt incurred.  Perhaps the issue will be litigated and decided in future cases?

Now, all that’s missing from the panel QME process is to make the panel QME process voluntary, and allow the parties to agree to retain their own QMEs once again!

The Court of Appeal recently affirmed the findings of the Board of Chiropractic Examiners and its decision revoking a chiropractor’s license.  Sit back dear readers, and read of a scheme that reminds your humble blogger of that of the underpants gnomes.

It appears that Aster Kifle-Thompson, was employed at chiropractic clinics owned by her chiropractor husband Steven Thompson.  Steve was convicted of seven misdemeanor violations of Insurance Code section 1871.4 in 1997 and his license was revoked in 2000.  (For those curious amongst us, section 1871.4 deals with submitting fraudulent workers’ compensation bills.)

Steve and his wife Aster then set up a series of shell corporations managing and owning several clinics, and then submitted fraudulent and excessive workers’ compensation claims for payment.  The scheme involved having an out-of-state physician, an M.D., who was licensed in California act as the “owner” of the corporation, while the services were actually provided by Kifle-Thompson and her husband.

The Board of Chiropractic Examiners found that Aster had committed several of the 35 alleged violations of section 317 of Title 16 of the California Code of Regulations (unprofessional conduct), citing the subsections mostly addressing dishonesty.

After the Board of Chiropractic Examiners found Kifle-Thompson had committed several of the 35 alleged instances of unprofessional conduct, and revoked her license.  The trial court, and in an unpublished opinion, the Court of Appeal, rejected Kifle-Thompson’s appeals.

So let it be known – the business model of:

Step one: get licensed

Step two: lose license by committing acts of dishonesty and workers’ compensation fraud

Step three: profit

Does not work!  It didn’t work for the underpants gnomes either!

Did you have to deal with the bills of Steve and Aster?  If any bills are still pending, you may want to take a look before paying them off.

Usually, your humble blogger sleeps the sleep of the just.  But the other night, something kept him from slipping blissfully into that world where claims are denied, liens are dismissed, and businesses flock to California to reap the soft, golden glow of low workers’ compensation costs.  A defense lawyer can dream, can’t he?

Instead, your humble blogger did a bit of research and came across a fellow of a similar affliction – Ronald S. Verna.  Mr. Verna, the applicant in the case of Ronald S. Verna v. City of Los Altos Police Department, sustained an injury and filed a claim, which was resolved by way of compromise and release with open future medical in 2008.

The writ denied case awarded applicant reimbursement for out-of-pocket costs for a continuous positive airway pressure machine, which was supposed to help him sleep, because his industrial back injuries resulted in weight gain and the use of opioid medications, in turn causing his sleep disorder, which in turn necessitated his purchasing of the machine.

In 2011, the parties went to trial on the issue of whether the defendant was required to pay for applicant’s sleeping machine.

At trial, the workers’ compensation Judge held that the sleep machine was a reasonable expense and included in the future medical treatment portion of the compromise and release, relying at least in part on applicant’s testimony as to his weight gain after his injury, but also on the opinions of his treating physician.  The WCJ ordered the applicant be reimbursed the $1,237.97 cost of the machine.

The WCJ rejected defendant’s argument that applicant was required to file a petition to reopen or that the compromise and release barred the claim because of the open medical clause.  The Court of Appeal and the Workers’ Compensation Appeals Board have rejected the defense’s appeal without much comment.

I don’t know if this is going to help me sleep any better.  After all, applicant gets to choose his primary treating physician, and can go up and down a defendant’s Medical Provider Network if one exists until he finds a PTP that is “agreeable.”  If an applicant, perhaps with the assistance of his counsel, finds such a treating physician, is there any sort of ailment or impairment that can not somehow be causally linked to the open medical award?

It’s entirely possible that the applicant in this case is honest, as is his physician, and his attorney.  Your humble blogger has never had any run-ins with any of them.  But, speaking generally, this seems like a weak point that can easily be exploited to enrich physicians and medical equipment providers, while providing free healthcare.