Author Archives: Gregory Grinberg

Is “Developing the Record” Back?

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Some of my dear, loyal readers will recall their humble blogger’s post on “developing the record” and the apparent signal that the Workers’ Compensation Appeals Board was growing weary of applicants getting second and third bites at the apple when they found themselves repeatedly bringing knives to a gun fight.  It looks like knives may be back in style.

In a recent panel decision, Jose Luis Tejeda-Garcia v. Modern Group (Company)/Dragon Products, the workers’ compensation Judge gave an order to develop the record, which the WCAB declined to disturb.

Applicant claimed to have sustained injury to his lungs, vocal cords, and associated squamous cell carcinoma while working for defendant as a welder.  Defendant took the position that the injury was non-industrial because of applicant’s history of smoking and alcohol use.

The parties brought their dispute to a panel Qualified Medical Evaluator in the specialty of otolaryngology, who suggested that they go to an epidemiologist or oncologist.  For some reason, the otolaryngology PQME did not find that the other PQME, the internal medicine specialist/oncologist, was qualified to issue an opinion on the questions of causation and apportionment in this case.

The WCJ found the record to be insufficient, reasoning that neither PQME addressed the issue of industrial aggravation.  She specifically rejected defendant’s contention that she was acting “as an advocate for the injured worker.”

Your humble blogger will chime in with his own thoughts at this point.  It is not clear who filed the declaration of readiness to proceed, but in either case, the parties conferred at the Mandatory Settlement Conference and elected to proceed to trial.  Somehow, applicant must have thought that he could proceed to trial and win – otherwise he could have just told the WCJ at the MSC – we need to develop the record, further discovery is necessary.

But that didn’t happen.

Applicant proceeded to bite at the apple, and the defense was ready and prepared to litigate the case at trial.

What should have happened was one of the following: either the WCJ should have ruled that there was insufficient evidence from which to draw the conclusion that applicant had carried his burden of proving industrial injury, including causation, or the WCJ should have ruled that the burden had been carried, and let the defense challenge the ruling on appeal.

The WCAB should have found the same – that applicant decided to roll the dice and that the trial results should have stuck, one way or another.

Unfortunately, the WCAB did not take action on this one.  Oddly enough, the WCAB specifically stated that “defendant’s petition should be denied because it does not demonstrate significant prejudice or irreparable harm.”  But significant prejudice was demonstrated in the panel decisions of Bates and Elias.

It’s decisions like these that make your perceptive blogger skeptical when he hears of the need for “judicial economy.”  The WCAB could save the workers’ compensation system from having to have two trials and two appeals for every case by telling the applicants that they only get one shot (just like everyone else in the world).  Instead, by allowing applicants to “develop the record” after a trial, the WCAB commissioners are inviting more clogs in an over-clogged system.  Your humble blogger does not approve.

In any case, folks, keep your eyes open, because the WCAB might just be inclined to let the “develop the record” insanity continue.

Gov. Brown Proposes Return to Furloughs

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A Flash Report from the Workers’ Compensation Executive, the sister publication of the late, great Appeals Board Reporter, a personal favorite of your humble blogger and a publication deeply missed by the workers’ compensation community, tells us of Governor Brown’s proposal to reduce the budget deficit by reducing the hours of state employees.

Do you remember the furloughs?  Do you remember having a handful of days during the month when the Boards’ doors were [physically] closed to justice and their lights [literally] turned off to the truth (and everything else)?  Perhaps we can expect those days once more.

The proposal includes longer business hours and fewer business days, which doesn’t really help those of us working conventional hours of 9-5.  Even the attorneys and adjusters that actually work longer hours usually reserve the hours before 9 and after 5 to catch up on solo work – reports, paperwork, research, preparing for hearings, and even checking our favorite daily workers’ compensation defense blogs (hint, hint).

What this proposal would provide is a substantial decrease in services (20%) for a tiny decrease in cost (5%).  In other words, the Governor is proposing increasing costs to employers and insurers by 15%

In all fairness to Governor Brown, he was active in vetoing several anti-employer bills and signing several defense (a.k.a. California) friendly bills in 2011.  However, if we overlook the issue of whether the Governor can close portions of the government not funded out of the general budget to “reduce the budget deficit,” your humble blogger submits that, perhaps, the Governor and his administration is taking the wrong tack.

Instead of hobbling the Board offices with a 20% reduction in productivity (let’s be honest here, how productive will you be working 12-hour days when you used to work 8-hour days, especially in those last four hours?) the Governor should be seeking to increase services in workers’ compensation, in quantity AND quality.

With Christine Baker and Rosa Moran enjoying recent confirmation, the efforts should be to make outcomes at the WCAB consistent, predictable, and in accordance with the law.  The various Board venues should be open to provide speedy justice to employees and employers alike – and justice, mind you my dear readers, is not “fairness” or “generosity” with the employers’ capital and the insurers’ reserves.  It is, instead, the correct application of the law without any hooks or crooks.

Instead, with a reduction in services, applicants’ attorney will now be able to threaten the defense community with overworked government employees, delays in closing files, and an overwhelming flood of cases allowing injustice to regularly slip through the growing cracks.  You need a date for that MSC?  Check back in six months.

Come on, Governor, cut the fat, not the muscle, and tighten the guts, not the belt!

MPN Defects Can Be Cured; Lien Problem, Not So Much…

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Can a defect in a Medical Provider Network be cured?  The answer appears to be “yes” according to at least one workers’ compensation Judge and the Workers’ Compensation Appeals Board in the case of Sara Ochoa v. Bel Aire Window Coverings.

Lien claimant Aspen Medical Resources petitioned the Workers’ Compensation Appeals Board for reconsideration of the workers’ compensation Judge’s order dismissing its lien.  The WCJ held that lien claimant had “failed to meet their burden of proof that their charges were credible or reasonable,” and that “defendant had a valid Medical Provider Network in place at the time of lien claimant’s date of services.”

Lien claimant argued that the Medical Provider Network was defective, but didn’t provide any reasoning.  In any case, applicant was referred to a chiropractor shortly after her injury, but notices of the MPN were not sent to her or her treating chiropractor until after she began treatment.

So the only possible theory lien claimant could go on to challenge the validity of the Medical Provider Network is that the notices of the MPN were not provided at the time of injury.  Swing and a miss.  As the WCAB put it, “a delay in serving the injured worker with required MPN notice does not mean that a defendant is liable forever after for the costs of any and all treatment self-procured by the injured worker.”

The WCJ also held that the “durable equipment” of a hot/cold therapy unit would only be “reasonably necessary” if applicant had undergone surgery, which she had not.  The instructions for use of the equipment specifically stated its purpose was to help post-surgery recovery.

Now, another twist to this case was lien-claimant’s objection, made at trial, that  defendant did not provide a proof of service of its trial exhibits.  The WCJ held that the “objection amounted to surprise and an attempt to catch the opposing side off guard” and that “[l]ien claimant had more than enough time to review the exhibits prior to the trial.”

It certainly looks like the old tricks of lien claimants are starting to resemble duck suits during hunting season.

Average 2011 California Comp. Claim Hits $67k

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A new report from the California Workers’ Compensation Institute states that 2011 has seen a record high average cost of workers’ compensation cases – $66,922.  The website Workforce.com has an article on this, reporting that 2011 saw an increase in the average indemnity costs of each claim.

The short and the long of it is that workers’ compensation costs are going up, steadily and consistently.  The gains made by employers and insurers in 2005 are steadily being chipped away.  The trend, since 2005, appears to be “declining frequency” and “increasing severity.”

Perhaps more reforms are necessary, with a particular focus on lien and medical expenses, to keep these costs from growing any more.  Perhaps practicing workers’ compensation attorneys need to be included in a meaningful way in any reforms that are produced.

Your humble blogger hates to be the bringer of bad news, but it ain’t looking good, folks.

Compensability Presumption Defeated by Lying Applicant

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Apparently, the Home Depot can be a stressful place to work.  William Wong worked at Home Depot as an assistant store manager, but was fired shortly after sending his supervisor a letter by facsimile indicating that he intended to file a workers’ compensation psyche claim.  (William Wong v. The Home Depot)

Then, it was all quiet on the comp front for more than seven years, after which applicant resurfaced to file an application for his psyche injury.

Naturally, the defense invoked the statute of limitations and lawful good-faith personnel action under Labor Code section 3708 defenses.  The workers’ compensation Judge ruled that applicant had documented that the employer had notice of the claimed injury, but he had not been provided with a claim form, and the injury had not been denied within 90 days, so it was presumed compensable under Labor Code section 5402.

If anyone other than applicant’s evaluating physician asked what applicant had been up to in those seven years between the “injury” and the filing of the application, applicant could have told them about his arrest for possession of a controlled substance and resisting arrest.  But that information wasn’t given to the evaluating physician.  He also told the evaluating physician that there was no history of psychosis in the family, even though his uncle had committed suicide.

Needless to say, the workers’ compensation Judge was not impressed.

Although the WCJ held that the presumption of compensability under Labor Code 5402 applied, that presumption was rebutted because applicant proved to be an unreliable historian, meaning that the medical reports based on his statements were not substantial evidence.

Also, the WCJ reasoned, the history of criminal activity and drug use could have been causative factors in his psychotic break.   In other words, as your humble blogger likes to say, No Soup For You!

Bear in mind, my dear readers, the defense in this case got very lucky.  Applicant had a bad history, and lied to the evaluating physician.  If applicant had not lied about his arrest history and the psychosis history of his family, he would have probably recovered and only suffered a bit of apportionment.  In any case, let this be a lesson to us all – hand out claim forms early and often!

Overcharging Lien Claimant Loses at WCAB

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It looks like the Workers’ Compensation Appeals Board really is getting fed up with the lien problem that is crippling California’s workers’ compensation system.  In the case of Ronald Houghton v. All Brands Sewing and Vacuum (that’s right, the same one from Wednesday), the WCAB dismissed the petition for reconsideration filed by lien claimant California Physicians Network for transportation costs.

After a trial, the workers’ compensation Judge awarded the lien claimant $8,820.00 of a $22,942.40 lien.  The lien claimant petitioned for reconsideration, arguing that it was entitled to the full amount.  But, in filing its petition, the lien claimant failed to provide verification in accordance with Labor Code section 5902.  Normally, the WCAB will roll their eyes at this lapse in procedure and will continue on to the meat of the matter.

The WCAB recognized that it has discretion to dismiss (or not dismiss) an unverified petition.  But it also noted that defendant had pointed out this lapse in procedure in its answer, and the lien claimant failed to cure.  And so the petition was dismissed, but the fun doesn’t end there…

The WCAB also adopted and incorporated the WCJ’s report and recommendation, and would have denied the petition on the merits.  The WCJ had found that, based on the testimony of a bill reviewer, the $145 dollars in transportation charged to defendant for applicant’s 11-mile trip to the doctor was excessive.  Furthermore, the panel Qualified Medical Evaluator testified, at his deposition, that applicant was fully capable of driving himself.

The WCJ even went so far as to opine that applicant could have gotten taxi service for $15 each way, which would have adequately served for the purposes of his visits.  At $145 for 11 miles, applicant should have been enjoying the therapeutic effects of luxury limousine service with the limousine itself being airlifted by an equally luxurious helicopter to his destination.  Your humble blogger is unaware of the reason why the defense did not seek reimbursement in this case, but it appears that the WCJ would have been inclined to award it had the issue been raised.

Every bill is worth reviewing, and perhaps reimbursement is worth pursuing.  Frankly, even if the cost of litigating the question of reimbursement meets or exceeds the cost of recovery, it may be worthwhile just to discourage frivolous bills in the future.

Facebook Used to Catch Workers’ Compensation Fraudster

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Facebook.  In days like these, we cannot afford to brush it off as just a venue for attention-seekers to document every meaningless aspect of their lives for the world to see.  It is also a great resource for catching fraudsters and plugging workers’ compensation leaks.

There are sophisticated methods of using Facebook to catch injured workers exceeding their “physical limitations.”  For example, you might catch a TTD applicant posting pictures of himself playing basketball, or that spinal injury case might be uploading video of herself doing tricks on a jet-ski.  But sometimes the lies are even more glaring.

Kristi Denise Motty was convicted for workers’ compensation fraud following a two-day trial.  For this case, the deputy district attorney stepped back from the trees and showed the jury the forest – it didn’t matter what Ms. Motty was posting on Facebook; she didn’t need to discuss mountain climbing or bear-wrestling.

While Motty was off work, she entered nearly 200 updates on her Facebook account, even though “it was impossible to write or type” and her pain from doing so was “excruciating.”  Motty worked as an office technician at Corcoran’s California Substance Abuse Treatment.

Motty was also photographed loading textbooks into her car, attending nursing school classes, taking out the trash, texting on her phone, and carrying heavy grocery bags.

WCDefenseCA sends its congratulations to the Tulare County District Attorney’s Office for a job well done!

Stipulations: A Crutch You Can Lien On

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Imagine this scenario: you enter into a stipulation to resolve a lien with a lien claimant’s hearing representative.  The stipulations are signed and approved by the workers’ compensation Judge.  When the lien claimant hears about the stipulation terms, it wants out of the agreement, claiming the hearing rep. exceeded the authority granted to settle.  Well, one WCJ issued an order rescinding the stipulation and releasing the lien claimant from its binding effect.

In the case of Ronald Houghton v. All Brands Sewing and Vacuum, defendant and lien claimant Express Case Management entered into a stipulation to settle the lien of $14,639 for $1,411.  The lien claimant then filed a petition for reconsideration arguing that “its hearing representative mistakenly took defendant’s offer, thinking it was appropriate.”  Even though the defendant was not served with the petition, the WCJ rescinded the earlier order, setting the lien claimant free.

The defense, upon receipt of the order (22 days after it was issued) filed a petition for reconsideration.  After addressing the issue of timeliness, and finding that defendant’s petition was timely, the Workers’ Compensation Appeals Board rescinded the WCJ’s order, reinstating the original stipulations.

A law professor once told me that the governing motivation for almost any judge or panel of judges is “judicial economy.”  The reasoning in this panel opinion shows that to be true.  The WCAB cited Robinson v. Workers’ Comp. Appeals Bd., in that the purpose of stipulations is to expedite trials and hearings, and that “if a party had the right to withdraw from a stipulation, ‘hearings would be subject to uncertainty and disruption in order for the parties to gather and present evidence on issues thought to have been laid to rest by the stipulation.”

In other words, if a hearing representative exceeds his authority, perhaps you should retain a different hearing representative.  It’s not the defendant’s problem, and it certainly isn’t the WCAB’s problem.

Former NFL Player Sues his Workers’ Comp Attorney

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Are you sick of NFL related posts on WCDefenseCA yet?  Your humble blogger sincerely hopes you’re not, because he has another one for you.  This time, however, the proverbial cross-hairs are on an applicant’s attorney, Mark L. Floyd of St. Louis, Connecticut.  Here is a video the firm apparently put out for Youtube, although the website appears to be down:

So, what could former St. Louis Rams linebacker Jamie Duncan have against Mark Floyd, Esq.?  Well, according to this article from CourthouseNews.com, in 2007, Mr. Floyd advised Mr.  Duncan to sign a settlement for $1,000 which included a waiver of future medical benefits, in a claim filed in Missouri.  (Thanks to KatkeRisk for the article.)

However, when Mr. Duncan retained a California attorney, the California attorney pursued claims for cumulative trauma and reached a settlement of $300,000 for all claims including future medical treatment.  The Rams then realized that a settlement agreement had already been reached in Missouri in 2007.  The parties ultimately settled the California claims for $45,000.

The civil complaint alleges that Mr. Floyd should have explored the option of filing a claim in California.

As if all the other stories on this point were not enough, the threat of being sued by former clients will serve as the drop of blood in the water – applicant’s attorneys from sea to shining sea are going to be going through their rolodex for that classmate from law school who headed out West so long as their client has ever set foot in California.

And you thought the clerks at the Board were busy already…

Using 1997 Psyche Factors for post 05 P&S? That’s Crazy!

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The California Court of Appeal denied applicant’s petition for a writ of review in the recent case of Kandi Sanders  v. Workers’ Compensation Appeals Board (California State University).  The main issue in question is whether Almaraz/Guzman requires an evaluating physician to stay within the “four corners” of the AMA Guides for a psyche injury.

In a report, dated June 27, 2011, the agreed medical evaluator wrote “[u]ntil such time as (psychiatric impairment) is clarified legally, it is my intention to continue to describe an impairment by the GAF, by the overall impairment in Chapter 14 of the AMA Guides, as well as the 1997 PDRS ratings.”  The permanent and stationary date was in 2011.

The matter proceeded to trial at which time the workers’ compensation Judge awarded applicant 9% permanent disability.  Applicant contested this award, arguing that the PD rating corresponding to her GAF was incorrect, and that the work functions factors of the 1997 schedule are a better indication of her permanent disability.

So what did the WCAB find?  Is the 1997 schedule within the four corners of the AMA Guides if tucked into the flap of the back cover?  Not so much.

The WCJ, in his report, reasoned that applicant has stipulated to the 9% rating and was so bound by her stipulation.  Secondly, the A/G decision limited the rule-bending and impairment-finagling to the four corners, which does not include the work function factors in the 1997 schedule.  The WCAB adopted and incorporated the WCJ’s report and recommendation, denying applicant’s petition for reconsideration, and the Court of Appeal followed suit, rejecting applicant’s contention that the 2005 schedule for converting psyche injuries to permanent disability ratings is inadequate.

Perhaps equating a psyche injury to a shoulder impairment would yield better results?