A recent panel decision has ruled that an injured worker entitled to in-home care treatment can “hire” his wife to provide the care, at the expense of the employer.  In the case of Ignacio Gomez v. Premium Roof Services, Inc., the panel ruled that workers’ compensation Judges do indeed have authority to order an employer/insurer to stop providing in-home care with some agency or another, and instead to pay an applicant’s wife to perform the acts instead.

If the facts sound similar, it is because you are a well-read and well-informed visitor to this most humble of blogs, and have probably seen this post on an insurer being forced to provide employment to an applicant’s illegal immigrant wife as the person providing his in-home care.

Applicant was receiving 10-12 hours of in-home care every week in accordance with the recommendations of an Agreed Medical Evaluator.  However, the agency hired by the insurer in this case proved “inadequate” to applicant’s tastes.  He made the claim that on the rare occasions when the in-home care staff would show up for duty, they would not do their job at all, let alone well.

So applicant petitioned to have this agency “fired” and his wife “hired” to provide the care instead.  Naturally, the defense objected, and with good reason.  Once applicant’s in-home care person is his wife, everything witnessed in the process of that care becomes privileged.  If applicant is faking his injury, his symptoms, or even his need for in-home care, how is the defense to prove it?  While testimony from in-home care staff might work in general, a defendant cannot compel an applicant’s wife to testify.

The reasoning given by the Workers’ Compensation Appeals Board includes the analogy comparing in-home care to a treating physician, noting that, at least with a treating physician, “[a] … relationship which will inspire confidence in the patient is an ingredient aiding in the success of the treatment.”  (citing Zeeb v. Workmen’s Comp. App. Bd.).

But surely in-home care is of a different nature of relationship than a physician.  Trusting someone with the future of one’s health, recovery, and ability to earn a living and enjoy life is not the same as trusting someone to perform in-home care tasks.  In the former, the patient relies on the years of training and experience elegantly concealed by a white coat and a smile.  In the later, applicant can readily supervise the work and see that it is to his satisfaction.

In any case, the remedy here should have been another agency, not applicant’s wife.  If the applicant has a complaint against the next agency, he can have the defendant replace them with a third or a fourth, so long as he documents properly his complaints.  After all, Nurse Case Managers are selected in a similar fashion.

As your humble blogger’s endless web of spies, informants, and double agents (collectively known as the internet), were bringing him reports of all the workers’ compensation doings going on in the world, an interesting gem was stumbled-upon.  It appears that a new study has been published regarding the shifting of expenses in workers’ compensation.

The research apparently included statistics from across the country, and looked at the costs absorbed by insurers and self-insured employers, as well as the overall costs shifted to third parties such as Medicare, Medicaid, and non-workers’ compensation insurance.  Lexis provides a nice summary of the study here.

Picture your typical worker contemplating a settlement proposal.  The worker knows that he or she is going to need some future medical treatment, but if a third-party is going to end up paying for it, perhaps those funds could be split between the defense and the applicant?

Your humble blogger has personally observed an in pro per applicant being advised that, if he had personal health insurance through his employer or through his spouse’s employer, perhaps he could bargain away the right to future medical treatment for cash-on-hand.  And in other cases, a very unhappy lien representative lawyer for a certain non-workers’ compensation insurance company sat as the other parties practically high-fived each other over reaching an agreement by shoveling medical expenses onto the third party.

It also seems to be common practice to shoot for a settlement figure two cents under $25,000 to avoid CMS intervention in a case, and allow the Federal Government to pick up the tab of future medical treatment.

Ethical issues aside, this isn’t a particular badge of honor as to the efficiency and sustainability of the workers’ compensation system.  One cannot operate a widget factory by stealing widgets from the more sustainable factories in the neighborhood.  Sooner or later, they’ll start locking their doors.

The study apparently found that almost $27 billion of $51.7 billion estimated in workers’ compensation costs for 2007 were absorbed by third parties.

We might all pat ourselves on the back, join hands with applicants’ attorneys and lien claimants, and laugh at those poor suckers picking up the slack for comp.  But, before we tap the kegs and light the cigars, your humble blogger, ever the pessimist, would just like to point out a small fact:  workers’ compensation is too expensive in its current state.  (Ok, NOW we can tap the kegs!)

Even with poor bystanders getting stuck with the bill, workers’ compensation is still too expensive and keeps losing money.  Reserves must consistently be replenished and the industry continues to suffer across the board.  What will happen when these third parties wise up and stop carrying half the Kool-Aid bottles that the comp world is drinking?

While the ship is still afloat, let’s drain some of the water in the decks instead of tying ourselves to more sea-worthy craft.

Lien claimants.  As a workers’ compensation defense attorney, it’s always nice to see the workers’ compensation Judges and Workers’ Compensation Appeals Board take notice of wrongful behavior on their parts.  Thus, I bring to your attention the case of Gabriel Sanchez v. Enrichment Enterprises, Inc.  The case-in-chief is not the focus of today’s post.

The lien at issue was that of translating services allegedly provided at five medical appointments.  An interesting twist in the case is that applicant speaks English and apparently appeared in propria persona at one point without the assistance of a translator.  The lien being contested by the attorney for defendant, lien claimant decided to raise the stakes to collect.  And raise the stakes he certainly did.

It appears that Alberto Stambuk, the owner of Logos Language, stands accused of approaching the applicant at a status conference and offering him some sort of compensation if he would tell the WCJ that he needed the services provided by the translator.  In fact, if the applicant is to be believed, he was offered $40.00 and possibly lunch by Mr. Stambuk for his “assistance.”  Instead, lien claimant was sanctioned $2,500.

Your humble blogger is not one to side with applicants, but I can see where Mr. Sanchez is coming from with respect to interpreter services.  Mr. Sanchez probably exerted considerable effort to learn English as a second language and is probably quite proud of being able to communicate in English.  At the same time, there is absolutely no reason to have a total stranger in the room with you and your treating physician “translating” for you.

Ultimately, the sanctions were upheld and the Court of Appeal denied lien claimant’s petition for a writ of review.  Applause is deserved by the WCJ and WCAB for making sure this sort of behavior is detected, processed and punished.  At the same time, the defense was very fortunate in that the applicant appeared to be an honest person who was unwilling to lie to a WCJ for $40 and a meal.  It does not take much stretching of the imagination to picture a lien claimant offering more “compensation” to an applicant less ethical than Mr. Sanchez, and some agreement being reached.

Some time ago this blog posted the story of the highest workers’ compensation award ever recorded.  $8.9 million dollars were awarded to applicant, and, of course, a portion of that would go to his attorney as well.  While adjusters cringe and defense lawyers glare angrily at that figure, some applicants’ attorneys no doubt had other reactions.  Some became motivated to get that much money for their clients; some became frustrated that they couldn’t generate such a fee for themselves… and some elected to go one step further.

Dearest readers, do try to bear with your humble blogger as he avoids naming names.  Although he does not hesitate to rightly name criminal defendants and lien claimants sanctioned by the Workers’ Compensation Appeals Board, this is a slightly different matter and the names to be named are only guilty of the crime of being applicants’ attorneys.  Although such a crime deserves punishment indeed, usually taking the form of taunting and ridicule on this blog, the naming of names may be a step too far.

It appears that one of the then-partners of the attorney representing the applicant in the above-referenced case has been claiming that she jointly handled the matter and provided a “significant role” in the representation.  This was news to the disabled client and his father, who claimed to never have met her until after the conclusion of the representation.  Although she received her share of the proceeds as a former partner, she has been attempting to promote her new practice by telling people that she was working on the case as well.

When the two former partners could not see eye-to-eye in private or on the pages of the trade publications covering the story, lawyers were retained and lawsuits were filed.  The former partner sued the attorney on the case to enjoin the alleged libel and slander interfering with her version of the truth.

A Superior Court judge granted the defendant’s Anti-SLAPP motion, and so the truth will continue to be told.

As some of my readers may know, your humble blogger was once a humble associate in a workers’ compensation defense firm before becoming a sole practitioner.  In the spirit of this story, he would like to claim credit for a “significant role” in every noteworthy case handled by that firm in its multi-decade history, even those occurring before his birth.  No doubt the anticipation that the world would one day be graced with your humble blogger’s presence motivated the firm to even more zealous representation.

We’ve all had to deal with our share of goose bumps, frustration, anger, confusion, and an endless list of other emotions and reactions when the curse-word “Ogilvie” comes up.  The case of Wanda Ogilvie v. Workers’ Compensation Appeals Board (2011), unfortunately, held that the diminished future earning capacity (“DFEC”) element of a rating calculation can be rebutted, in theory by either party but in practice by the applicant.

Ogilvie, in its third decision at this point, allowed for three methods of rebutting the DFEC: (1) showing a factual error in the application of a formula or the preparation of the schedule; (2) showing that other industrial factors inhibit rehabilitation and result in a greater diminishment of future earning capacity than reflected by the DFEC; or (3) when the amalgamation of data used to arrive at a diminished future earning capacity adjustment may not capture the severity of all of the medical complications of an employee’s work-related injury.

Recently the Court of Appeal denied applicant’s petition for a writ of review in the case of Valentina Rodrigues v. WCAB, where applicant attempted and failed to rebut the DFEC.  Ms. Rodrigues worked for the County of Sacramento as a custodian, and sustained injury to a laundry-list of body parts in July of 2007.

The matter eventually proceeded to trial, where the workers’ compensation Judge held that Ms. Rodrigues failed to carry her burden in rebutting the DFEC in any of the three methods provided by the Court of Appeal.

Nothing in the medical reporting supported the contention that applicant’s medical complications were anything but normal and those typically sampled in creating the DFEC.  Applicant’s vocational rehabilitation expert also failed to provide a full work up of applicant’s earning capacity, and only provided an estimate.

The WCAB denied reconsideration and the Court of Appeal denied review.

Note, dear readers, that this case was not sent back down to “develop the record” and allow applicant to get her medical and voc-rehab ducks in a row.  Furthermore, the standard set out by the Court of Appeal in Ogilvie III was used to limit defendant’s liability in this case.  As noted in this post, it appears that “developing the record” may be disfavored.

Are applicants’ attorneys entitled to an attorney fee from the money used to set up and fund a workers’ compensation Medicare Set-Aside account?  After all, the applicant’s lawyer has to do some work to get that amount and to get applicant’s future medical needs taken care of, doesn’t he?  Previously, the Workers’ Compensation Appeals Board had held, in a panel decision (Pratt v. Wells Fargo), that the attorney’s fee comes out of everything other than the WCMSA – so all those future medical treatment dollars put no pennies in the pockets of hungry applicant’s lawyers.

Recently, however, there has been a contrary panel decision (Robert Viale v. Lockheed Martin Corporation), in which the same WCAB chided the workers’ compensation Judge for giving “undue weight to a non-binding panel decision” by relying on Pratt.  The WCAB further noted that “notwithstanding the fact that someone at LEXIS deemed the Pratt decision ‘noteworthy,’ prior panel decisions are not binding on WCJs or subsequent Appeals Board panels.”

But… isn’t the Viale opinion just another “non-binding panel decision,” with or without a LEXIS “noteworthy” stamp, which some other WCJ will be chided for giving “undue weight”?

Applicant’s counsel won an additional $50,000 in attorney’s fees through his efforts.  Now, bear in mind, at the moment, your humble blogger has no dog in this fight.  When applicant’s lawyers and applicants are at each other throats, the defense doesn’t really suffer all too much.

However, as noted in this article, there are plenty of times when the defense is suddenly on the hook for an applicant’s attorney’s fees on top of his or her other recovery.  This means that cases such as Viale, and unlike Pratt, could be used to inflate the liability of the defendant to include an attorney fee on the WCMSA.

Let’s hope that future panel decisions lean in favor of Pratt and some binding authority on this topic comes out soon before an employer gets stuck paying double the attorney fee.

What’s the deal with California doctors’ office getting raided all the time?  Recently, the offices of Dr. Rolando Lodevico Atiga, down in the Los Angeles Area, were raiding by state and federal agents after a two-month investigation into a prescription medication sales scam.

Apparently, Dr. Atiga’s past of working in a candy store influenced his tendency to hand out prescription drugs… for cash, of course.  In one leg of the investigation, the good doctor was showed an x-ray of a dog by an undercover officer, only to receive the response “oh yeah, I can see why you’re in pain.”  Could it have anything to do with the giant tail?  Your humble blogger, while a young man and a big-shot clerk at a district attorney’s office, got to observe some parts of a similar operation involving a workers’ compensation fraud investigation and a dog as a patient.

Dr. Atiga allegedly met with patients and prescribed very powerful and addictive pain pills for payments of $200 to $400.  And this doesn’t appear to be the wonderful wizard’s first stepping over the lines.  Past history includes a felony conviction in February 14, 2012 for violating Business and Professions Code section 650(A), as well as other less-than-noble actions.

Your humble blogger is not usually a gambling man, but what would you say the odds are that the soon-to-be Mr. Atiga saw workers’ compensation patients as well?  Or perhaps some of his colleagues did and readily prescribed medication to cash in on a workers’ compensation insurer’s reserves?

Workers’ compensation defense attorneys need to be vigilant and make sure that when something fishy is going on, their clients are informed and the authorities are notified as well.  Somewhere in this story’s timeline, there was no doubt a call or letter sent by someone tipping the police off.

But applicants’ lawyers need to be vigilant against such breachors of the hipporcatic oath as well.  Your clients end up hurting themselves when there is a drug dealer in a white coat not only starting their addiction but also nurturing it to the ruination of their lives.

WCDefenseCA sends its best wishes to the Los Angeles County District Attorney’s Office in prosecuting this case.

Eureka!  No, dearest readers, your humble blogger has yet to strike gold, nor has he found anything all too exciting, except of course, a panel decision from that northern Board – Eureka.  The Workers’ Compensation Appeals Board recently reviewed a decision of the workers’ compensation Judge in Eureka in the case of Donna Larson v. State of California, Department of Corrections.

It appears that the main issue on review is the method of analysis with respect to (1) applicant’s claim of an injury to the psyche; and (2) applicant’s claim to discrimination in violation of Labor Code section 132a.

Applicant worked as an accounting supervisor and, after a worker was transferred laterally to be under her supervision, she began to have what can only be described as personality conflicts with him.  She accused him of sexual harassment, a charge which appears to be unsubstantiated.  He accused her of unfair labor practices for penalizing him for the time he spent as a union representative.

In any case, her complaints were investigated by her supervisors but were eventually dismissed.  She didn’t take this very well and apparently this contributed to her alleged psyche injury.  Some of my readers may recall a similar situation, in the case of County of Sacramento v. WCAB (Michael Brooks, writ denied) in which a supervisor claimed a psyche injury because his complaint about a subordinate did not result in a sufficient reprimand.

Intertwined with applicant’s psyche claim was applicant’s 132a claim.  Defendant argued that the facts underlying the 132a claim contributed to the psyche claim, a finding echoed by the WCJ.  However, defendant also argued that the termination of applicant’s employment had a business necessity defense, which was supported by witness testimony as to the employer’s workload and applicant’s one-year absence.

So, if applicant’s termination of employment was a “lawful, nondiscriminatory, good faith personnel action” as set out in Labor Code section 3208.3(h), and that termination was one of the causes of the psychiatric injury (Labor Code section 3208.3(b)), doesn’t that get the employer off the hook for the psyche claim?

Well, the WCAB relied on the en banc decision in the case of Rolda v. Pitney Bowes (2001) 66 Cal.Comp.Cases 241 (2001), reasoning that for a finding of a psyche injury, a competent physician must take a history of all events contributing to the alleged injury and then make a determination as to whether work events were at least 50% the cause of each individual event.  Then, the physician must determine the percentage of causation attributed to lawful, nondiscriminatory, good faith personnel actions.

The WCJ must determine the psyche injury involves actual events of employment, whether those events were the predominant cause of the psyche injury, and whether any of those events were lawful personnel actions.   Finally, the WCJ must determine if those lawful personnel actions were a substantial cause of the psyche injury.

With respect to the 132a claim, the WCAB held that the Lauher case raised the standard of finding a 132a violation by requiring a worker to show not only conducted by the employer detrimental to the employee, but also that the conduct was specifically targeted towards the employee because of the industrial nature of the injury.  In this case, the defendant presented a business necessities defense.

The matter was returned to the WCJ to prepare findings that conform the outlined analysis for both a psyche injury and a 132a claim.

From the looks of it, however, defendant is in a good position with adequate defenses.  After all, if applicant had hurt her leg skiing and had been gone for a year while the papers built up on her vacant desk, wouldn’t the employer have acted the same way?

Time will tell…

Your humble blogger may often come off as a cynic – and in all fairness, he does have a cynical streak about him.  But note this, dear readers, your humble blogger is also a hopeless romantic.  He believes that love conquers all, and the healing power of love cannot be overestimated or overlooked.  In fact, he brings proof of this very concept to your, his loyal and steadfast readers (and the Google bots who crawl this blog in search of web statistics, and just maybe, true love…)

Modupe Adunni Martin worked as a custodian for a high school in Hayward when she allegedly sustained an industrial injury to her ankle.  The pain and impairment from this injury was so great, that she required crutches and couldn’t even walk or work without pain.  In fact, the San Mateo County District Attorney’s Office callously believed that she was faking the injury, so surveillance was conducted and Ms. Martin was recorded painfully entering a doctor’s office using crutches.

The doctor’s appointment being concluded, she looked to the next item on her agenda, which was, what the San Francisco Chronicle called, a “meet up with a boyfriend for a romantic tryst in a public park.”

In preparation for this meeting, as her heart overflowed with thoughts of her boyfriend and the air carried the sweet scent of romance, she gingerly threw her crutches in her car, put on high heeled shoes, and ran to meet her gentleman caller.  Coincidentally, this was also caught on tape and is the basis for the DA’s case in prosecuting Ms. Martin for workers’ compensation fraud.

Some sources have reported that Ms. Martin also engaged in another activity in the park, one which this family-friendly blog dare not mention.  Need you any more proof of the healing power of “love”?

Ms. Martin has plead not guilty and the trial is set for October 22, 2012.

As always, WCDefenseCA wishes San Mateo County District Attorney Steve Wagstaffe good hunting and good luck in seeing justice done.

Boilerplate pleadings should be discouraged in workers’ compensation.  They might save a little time for the party filing them, but they end up wasting the time of opposing counsel and the Board.  If Labor Code section 132a is an issue in this case – go ahead and raise it.  If it isn’t, refrain.  But if you’re going to raise 132a, then run with it – don’t stamp 132a on every single application.

For example, a worker might return to his job after an injury, get promoted, get a raise, and be held up as an example to his co-workers as a model employee – one who meets misfortune head on and works hard to get past it.  Some applicant attorneys would include 132a in their application.  Why?  Because it’s easier to kitchen-sink a form rather than do a full investigation of a case at intake.

Which brings us to the case of Edwin Mendoza v. J & S Auto Hand Wash.  Applicant worked for Auto Hand Wash and sustained injury to multiple parts of his body over a six-year period ending in May of 2011.  Applicant filed a claim in August of 2011, and (wouldn’t you know it) raised the issue of 132a in his application.  The actual petition for increased benefits was not filed until January of 2012.  A Declaration of Readiness to Proceed was filed by applicant ten days later on all issues except the 132a claim.

Should the 132a claim have been set for trial on the same date as the case-in-chief?  Applicant’s position was that it should not and that discovery had not yet been completed.  But, at the time of the Mandatory Settlement Conference, applicant had almost seven months since raising the issue in his application, and had not begun to conduct discovery on the matter.  The workers’ compensation Judge set all issues for trial, reasoning that applicant has had plenty of time to conduct discovery and has chosen not to.  The clock began ticking when the issue was raised on the application, not when the petition was filed.

Unfortunately, the Workers’ Compensation Appeals Board sided with applicant’s position, granting his petition for removal.  The Board responded to applicant’s claim that he “will be severely prejudiced if a final decision is made on his claim if he has not had the opportunity to conduct discovery.”   With this sentiment, your humble blogger agrees…

If applicant had not had the opportunity to conduct discovery, setting the matter for trial would have been prejudicial.  However, applicant had ample opportunity from August 2011 to March of 2012 to depose the employer or subpoena records.

In the WCJs report and recommendation, it is noted that “[t]he Petition for Removal gives no explanation for the applicant’s not having conducted discovery on the 132a claim.”

I understand the concern of giving applicant a harsh result, but shouldn’t we be trying to move things along?  After all, the allegations forming the basis of the 132a claim were not a surprise – the issue was raised in the application.

On the bright side, an EAMS search reflects that the case has settled by compromise and release.  So perhaps there was a happy ending after all?