Author Archives: Gregory Grinberg

When the Spinal Second Opinion is More than a Few Seconds Late

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As a boy growing up in San Francisco, I would, on occasion, experience a relatively rare phenomenon – a cloudless night.  On those nights, one could stare into the sky and ponder all of life’s imponderables.  Does each chicken have its own personality?  What happens to the paper that is cut by scissors?  Do employers have to pay for spinal surgery when the second opinion physician has not submitted his report within the 45 days allotted by Labor Code section 4062?

Many years later, I still don’t have the answer to my questions.  Not even after the split panel decision of Christine Krause v. State of California, which granted defendant’s petition for reconsideration and rescinded a workers’ compensation Judge’s order that the employer provide spinal surgery.  WCDefenseCA sends its thanks to the kind and thoughtful reader who sent in this panel opinion!  If you have an interesting panel opinion to share, please shoot it over to: gregory@grinberglawoffice.com.

The basic story is as follows – the primary treating physician requested authorization for spinal surgery, and the defense promptly submitted it to utilization review and received a timely non-certification letter.  A second opinion doctor was assigned, less than two weeks later issued a report indicating that he was inclined to disagree with the treating physician’s recommendations, but wanted to see additional medical information.

The additional medical information, including an MRI and an evaluation of applicant, was still not enough.  The physician wanted to do a new MRI because the old one “was of low quality and seemed to indicate ‘that there was something wrong at just about every level.’”  Bear in mind, dear readers, that at the time of the evaluation, the second opinion physician had been appointed for 84 days.  Thirty-one days later (a total of 115 days after the appointment) applicant’s attorney filed a declaration of readiness to proceed.

At the hearing, still without a report from the second opinion physician, the WCJ found that the report had been delayed through no fault of either of the parties, and that the defendant was obligated to provide the spinal surgery.  In other words, “sorry about your luck, now fork over the money.”

The defendant, feeling somehow wronged by the relatively arbitrary assignment of medical expense, petitioned the Workers’ Compensation Appeals Board for reconsideration.  And reconsideration the defense received!

The two-commissioner majority held that when, as in this case, the delay is through no fault of the defense, the defense cannot be made liable for the consequences of the physician’s slow response.  Nor was the WCAB impressed with applicant’s “claimed concern about timeliness,” as the 45-day mark came and went seventy days before applicant filed the declaration of readiness.

The dissent, however, would have assigned all blame to the defense, reasoning that the burden is always and entirely on the defense to obtain timely reports, whether UR or second opinion.

As panel opinions are not binding precedent, split panel decisions are even less binding.  But, it is still reassuring to know that, when we arrive at the various Board venues and empty our pockets for the metal detectors, employers and insurers are not expected to empty theirs as a matter of course.  (Yes, San Francisco and Oakland, I’m shaking my head with disapproval at you!)

3 Generations of Family Arrested – Fraud Doesn’t Pay!

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Your humble blogger, in the years of his youth, once read a story about a Japanese swordsmith, the twenty-seventh in his line.  Each generation, from the first all the way to his, had mastered the art of sword-making, learned secrets and new methods, and closely held those secrets within the family to consistently make excellent swords.  I marveled at the competence and skill that must have come with so long a line of craftsmen.  Of course, not all skills improve as they are passed from generation to generation.

Three generations of a family in San Bernardino County have been charged with various fraud crimes after the death of a worker in 2008.  State Compensation Insurance Fund noticed that the family’s company had been under-reporting and misclassifying employee information and payroll.

The District Attorney Investigator’s unit obtained search warrants and arrested a Husband-Wife-Daughter team, charging them with 11 felony counts of insurance code violations.  This investigation led to additional discoveries, including crimes committed by the son and grandmother, including Grand Theft and Conspiracy.  After all the family that steals together, appeals together.

WCDefenseCA congratulates Senior Investigator Hank Jun on an excellent investigation and wishes the best of luck to Deputy District Attorney Scott Byrd in prosecuting the case.

Rebuttal Evidence Must Be Disclosed

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Shouldn’t there be some distinction between evidence offered to prove an affirmative fact or element and evidence offered in rebuttal?  Not according to the army of judges in the case of Ace American Insurance Company v. Workers’ Compensation Appeals Board (writ denied).

Applicant Emil Sulek had claimed that his shoulder injury precluded various physical activities, but the defense attorney found a witness who was prepared to testify that he had seen Mr. Sulek exceeding his claimed limitations.

When the parties appeared at a status conference, the hearing was turned into an Mandatory Settlement Conference, they filled out a 5-pager, and set the matter for trial.  The defense attorney did not list this rebuttal witness, and had not previously turned over the statements of that witness to the applicant’s attorney.

At trial, after applicant testified, the defense sought to have the rebuttal witness testify as well, but this effort was thwarted by the workers’ compensation Judge, who described this as “ambushing applicant at the hearing.”

Defendant petitioned for reconsideration, but received no sympathy from the Workers’ Compensation Appeals Board.  Instead, an opinion detailing Labor Code section 5502(e)(3) was offered.

The Court of Appeal did not ride to the rescue either, declining defendant’s petition for a writ of review.

It appears that the workers’ compensation system is adverse to applicants being caught red-handed when they have testified to half-truths and full lies.

The WCJ described this as ambush, and in some senses it is – if you want to catch criminals in a sting operation, you have to lay out the bait and strike during the act.  In workers’ compensation, there is no effective way to do this if the defense must lay its rebuttal cards out on the table.  Many WCJs don’t want to see surveillance or sub rosa tapes either.

Well, it appears that it, once again, falls to your humble blogger to set the record straight on a few facts.  If you are for some reason under the age of 12, please stop reading at this point.

1)      There is no Easter Bunny;

2)      There is no Santa Clause;

3)      FROM TIME TO TIME, APPLICANTS LIE!

And when applicants lie, they lie to get more money, more time off work, and more drugs.  The only thing that keeps the applicants that are inclined to lie from lying, is the risk of getting caught, losing their claim and incurring some sort of penalties (usually criminal).  The liars will never stick their necks out and testify in open court if they know that rebuttal evidence is coming.

Judge Holds One Game in CA Establishes Career-long Jurisdiction

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Today’s blog post is appropriately started with the words of one of America’s most profound and provocative modern poets – Shawn Corey Carter (also known as the rapper Jay-Z):

If you’re having cornerback problems, I feel bad for you son; I got 99 problems, but work comp. ain’t one.

Professional football has once again tackled (get it? Tackled? Football?) California workers’ compensation issues.  The latest claim to fall off the Ridiculous Tree and hit every branch on the way down is that of Michael Jameson v. Cleveland Browns.

Michael Jameson is a former cornerback who played three seasons for the Cleveland Browns (2001-2003) after playing college football for Texas A&M University.  As the names “Cleveland” and “Texas” suggest, Jameson had not been employed in California until he played one game here for the Browns.  This was the only game in his career that took place in California.  Applicant claimed that his career-wide cumulative trauma should be adjudicated under California law by a California WC

This topic may sound familiar as it was the subject of a 3-part post on California Workers’ Compensation Appeals Board jurisdiction over visiting employees.

The workers’ compensation Judge ruled that California did have jurisdiction over the matter because Labor Code section 3600.5(b) does not apply.  The WCJ found that the defense had not provided admissible evidence with respect to Ohio’s laws proving that applicant had an available claim in Ohio.

Your humble blogger’s favorite quote from the WCJ? “Since the applicant played in that game, and paid California taxes, the California Courts should be protective of California taxpayers and extend their jurisdiction to them to protect their rights as given to them by the California Legislature.” Certainly, in other cases, this WCJ and all WCJs are very concerned with those other taxpayers, the employers, who undertake payroll taxes, business “licenses,” which are, of course, taxes, and countless other fees and extortions to ensure the pay and pension of California’s public servants. 

The defense attorney had cited Ohio cases and statutes, but the WCJ found that those citations were in the attorney’s brief and, therefore, were not “evidence.”  In all fairness, this is true – cases are not evidence or facts, but law.

On review, the WCAB granted reconsideration, ordering the WCJ to allow the parties to present additional evidence both as to the extent that the employer’s self-insurance covers out-of-state injuries and the law in Ohio.   It appears that it may be necessary for out-of-state employers to print out cases and statutes, mark them as exhibits, and move them into evidence.  Hopefully, the same rule will not one date apply to California case-law and statutes as well.

Received Bills from Implantium? Fraud Charges Pending…

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Have you seen bills for Implantium?  Well, if you have, you may want to hold off before you pay them.  The Santa Clara County District Attorney’s Office has charged Trudy Maurer (CEO) and Tigran Shahsuvarya (Medical Director) with nine felony counts of fraud, the allegations being that the two inflated invoices and submitted them to various government employers in San Jose County.

Shrugging off the medical fee schedule, Implantium allegedly overbilled the government employers for devices implanted (or supposed to be implanted) into injured employees backs.

If your gamble-inclined blogger were inclined to gamble, he would guess that these were more of those spinal stimulators or neural stimulators that work so well during the “trial” phase and then stop working all together after being implanted, requiring additional surgery to remove them.

If these allegations are true, hopefully the District Attorney’s office will not hesitate to throw the proverbial book at the perpetrators.  These parasitic acts bankrupt the workers’ compensation system and hurt tax-payers, employers, and employees alike.

One can also hope that the DA’s office will not hesitate to pursue the same sort of transgressions when committed against private-sector employers and insurers.

As always, WCDefenseCA wishes the District Attorney’s office good hunting!

Different Strokes for Different Folks

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In as much as you adore your humble blogger, one can only hope that you will forgive the pun in today’s blog post title.

Applicant suffered a stroke while working as a journeyman screen printer in the case of Francisco Amaya v. California Printed.  Mr. Amaya was given the job of printing thirty six flags and a deadline of 1:00p.m.  The trial evidence differed on whether he was assigned this task at 8:00 a.m., allowing for five hours, or at 9:30 a.m., allowing for three and a half hours.  In any case, because of the “stressful working condition” of having to make so many flags to print in so little time, applicant suffered a stroke.  Also contributing to the stroke was the fact that he had stepped on a spray can, causing him to fall to the ground.  Sounds pretty bad, no?

Well, some facts might clear this up.  Applicant suffered his stroke a little before 11:00 a.m., and at that time had completed six of his assigned thirty six flags.  So, that means that he had between 1.5 and three hours to print the six flags, leaving another 30 to be completed by 1:00 in the afternoon.  How many flags could YOU print in that short a time period? 10? 20?  Well, if you’re one of applicant’s co-workers, it would probably take you thirty minutes, which is what it took another employee who was assigned the remainder of Mr. Amaya’s workload.  Not so much of a “high pressure” situation any more, is it?

Also, what may have contributed to the stroke was the non-industrial and untreated “hypertension, hypercholesterolemia, and diabetes” which applicant had at the time of the stroke.

So, here is what the panel QME did with this case:

1)      He ordered a CT scan of applicant’s head, because head trauma “could have been a precipitating or enhancing factor.”  Without having seen the CT scan results, eh concluded that applicant’s stroke was caused by 25% industrial factors and 75% non-industrial factors.  When he later saw that the CT scan showed no head trauma, he declined to change his opinion.

2)      He also found that his stroke could have been a reaction to stepping on a spray can, but if he did not step on the spray can, the PQME would not change his opinion.

Here is how your skeptical blogger reads these facts: “well, I’m not going to let these facts let this guy walk away from this thing empty-handed.”

The defense argued that the PQME’s opinions do not constitute substantial medical evidence – this lunacy of a medical opinion does not justify its findings and seems unmoved by any shifting facts.  So, what do you think the Workers’ Compensation Judge did with this?

The WCJ threw it out of her courtroom!  She found that the PQME “did not explain the bases for his opinion that Applicant’s work activities … constituted 20-25% of the causation of the stroke, irrespective of the pace at which Mr. Amaya was required to work.”  The injury was ruled non-compensable, and applicant’s request to take a second bite at the apple further develop the record was denied as the PQME “has been given ample opportunity, through the deposition process, to provide support for his opinions… [he] has not provided the necessary support, and … further discovery such as another deposition is not likely to yield a properly supported opinion.”

The Workers’ Compensation Appeals Board denied applicant’s petition for reconsideration and incorporated the WCJ’s report.

Curious about this Northern California PQME who hands out causation like it’s candy?  Please shoot me an e-mail for the panel opinion: gregory@grinberglawoffice.com

Lien “Expert” Charged with 16 Counts of Perjury

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The reach and influence of your humble (and arguably delusional) blogger spans far and wide.  Reliable sources have pointed out a fraud story that is simply ridiculous.  On January 5, 2012 the San Diego District Attorney’s Office filed a felony complaint, alleging sixteen counts of perjury against Joseph Arthur Wolf.  Wolf, who on at least one occasion testified as an “expert witness” in a lien recovery matter for workers’ compensation cases, made claims that he had received degrees from universities (which he apparently had not), and that he had been mayor of a town in New Jersey (which he apparently had not either).

Among his other claimed titles were: Police Commissioner (of two different towns in two different states), President of the Board of Health, and Assemblyman.  He also claimed to have taught medical doctors at Chicago University Pritzger School of Medicine.

Also of interest is Count 2: “[d]efendant stated he had no financial interest in the outcome of the hearing, but was being paid by the surgery center.”

According to the complaint, Wolf was testifying for Wolf & Associates when these 16 acts of perjury occurred.  But the Wolf & Associates website makes no mention of Joseph Arthur Wolf, but only of Leslie Wolf and her “20+ years experience in the medical and workers [sic] compensation fields.”

Efforts to retrieve cached versions of the Wolf & Associates website, ones that would include some mention of Joseph Arthur Wolf, were unsuccessful.  In any case, it appears that Wolf & Associates provided lien recovery services to various lien claimants, and, on at least one occasion, offered Joseph Arthur Wolf as an expert witness to carry the requisite burden of proof as to necessity and/or reasonableness of charges.

The defense attorney in that case must have been as diligent as they come – he rooted out the patent fraud and perjury committed by this so-called “expert” and the District Attorney is now involved.  How many other lien-recovery outfits try these sort of shenanigans?  How many times have the succeeded in influencing workers’ compensation Judges to award undeserved funds to lien claimants?

As a member of the defense community, I would also like an investigation into Wolf & Associates – did they know about his background? How often have they retained Mr. Wolf as an expert witness?  Are the facts there to support a charge of conspiracy to commit perjury?  California in general and Southern California in particular are plagued by the devastating effect of liens – when applicants are wondering where all the money is going, they can find the lien claimants siphoning off the defendant’s reserves and litigation budget.  This is an example of the problem.

WCDefenseCA sends a very sincere “good hunting” to the San Diego District Attorney’s Office.

An Evaluator Turning Down the Almaraz/Guzman Dance

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This blog has covered some tactics that good defense lawyers can use to push back against the impairment inflation of Almaraz/Guzman. Sometimes, we even see A/G used to actually cut down the total impairment.  In the recent case of Malhotra v. State of California, Department of Developmental Services, the panel Qualified Medical Evaluator was not inclined to jump on the A/G bandwagon… and the Workers’ Compensation Judge would have none of it.

Applicant sustained an injury consisting of a laceration to the small finger of his hand, resulting in decreased range of motion and loss of sensation.  The panel QME found this to reflect a 2% whole person impairment.   The applicant’s attorney tried, unsuccessfully, to play the A/G tune for the PQME and get him to rate grip loss with or instead of the decreased ROM and loss of sensation.

But he wouldn’t budge – the PQME in this case manifested some strange and completely irrationally dedication to the truth and the honest evaluation of applicants.  The AMA Guides clearly state that, in the presence of reduced range of motion, grip loss cannot be rated.

In crafting the instructions to the DEU rater, the WCJ noted that the PQME “does not appear to be aware of the latitude he has,” and proceeded to instruct the DEU to rate grip loss.  The result, of course, was a 20% permanent disability rating.  On cross-examination, the DEU rater testified that he would not have rated grip loss, but would have instead rated applicant with 1% permanent disability, but the Judge’s instructions are the Judge’s instructions.

After the WCJ awarded applicant 20% permanent disability, defendant promptly and zealously petitioned the Workers’ Compensation Appeals Board for reconsideration.  On what possible grounds could an objection to the course of events be made?  Well, in the en banc case of Blackledge v. Bank of America (2010), the WCAB held that the physicians assess the injured employee’s whole person impairment, and the WCJ frames rating instructions.

According to the WCAB, the WCJ, in this case, was “again usurping the role of the physician in determining that applicant’s impairment should be based upon grip loss, rather than the factors he identified that comport with the AMA Guides.”   (To my dear WCJs out there, please recall, your humble blogger but reports these opinions, he does not draft them.  If he were free to draft binding opinions, there probably would be considerable cause to be very angry with what he had to say…)

The end result was a victory for the defense and for anyone interested in having a workers’ compensation system build on consistency and predictability – a scratch on your pinky does not render you only 4/5th of the worker you were.

Work is More Exciting in Australia

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Normally, this fine and cutting-edge blog confines itself to the goings-on and happenings of California workers’ compensation, in particular the stories and cases that make the defense community better equipped to deal with the wolves growling at our proverbial doors.  But not today.  Today your humble blogger could not resist the temptation to post on a story out of Australia that made it into the WCDefenseCA inbox thanks to the thoughtfulness of a few very kind readers.

A woman in Australia has successfully argued that her injury sustained while engaged in behavior that cannot be described in any detail on this family-friendly blog should be compensable.  Her employer sent her on a business trip to another town.  While there, she contacted a “friend” of hers and the two returned to her hotel room.  While “going hard,” in the words of the eloquent “friend,” a light fixture fell off the wall and hit her, resulting in “facial and psychological injuries.”

In the course of employment, indeed.

The Australian Federal Court held that she was entitled to compensation, just like she would have been had she been playing cards in the same hotel room.  The Federal Court is not the highest court of the land, so common sense may still prevail.

WCDefenseCA is not aware if the woman has pursued any action against the hotel or the maker of the light fixture, but in terms of pure fairness, they seem like more culpable and punishable candidates than the employer.  But such is the cruel fate of employers in Australia – where all is fair in love and work[ers compensation].  G’day!

Applicant’s Attorney Sanctioned $1,000 for False Statements

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Sanctions.  Sanctions, sanctions, sanctions.  They make the news when they happen, and the defense community involuntarily pumps a fist in support when the Workers’ Compensation Appeals Board imposes sanctions against lien claimants or applicants’ attorneys who play fast and loose with the truth.

Not too long ago, the WCAB imposed sanctions against a Valencia applicants’ lawyer for some less-than-honest statements pertaining to the timeliness of his filed petition.  In keeping with WCDefenseCA’s policy of not naming names, your humble blogger will decline to broadcast the perpetrator’s identity.  But if you e-mail me (Gregory@grinberglawoffice.com), I will send you the panel opinion.

Applicant’s attorney filed a petition for reconsideration on June 28, 2011 even though the underlying Joint Findings and Award was issued January 25, 2011.  To deal with the issue of timeliness (for a discussion of reconsideration and removal, please click here) applicant’s attorney alleged that he never received the F&A when it was served.  But this means that he had 20 days from the date of receipt to file a petition for reconsideration – and the question arose as to when he actually received the F&A.

In answering applicant’s petition for reconsideration of June 28, defense counsel raised the argument that the petition was not timely.  Furthermore, evidence was offered that applicant had the F&A in his hands at an Mandatory Settlement Conference on May 2, 2011.  Your humble blogger may be mathematically impaired, but with the use of his fingers and toes he discovered that June 28 is more than twenty days after May 2nd.

Well, the WCAB ordered an investigation on the trial level into this issue and the question of ex parte communication with a judge and making misleading statements to a judge.  The defense attorney appeared at the hearing to testify, but applicant’s attorney did not.  He later alleged that he calendared the hearing incorrectly (labeling the hearing as 1:00 instead of 8:30) and that the whole thing is moot anyways because “the Fifth amended [sic]” protects him from testifying against himself.

The WCAB was not impressed.

Sanctions of $1,000 were imposed on the applicant’s attorney for the misleading claims regarding when the attorney actually had the F&A.  Because no evidence was offered with respect to the issues of ex parte communication and false statements to a workers’ compensation Judge, sanctions were not imposed for those as well (the applicant’s attorney escaped an additional $2,000 in sanctions).  With respect to the claim of the “Fifth amended,” the WCAB noted that there were no criminal charges pending, so the defense did not apply.

Your curious blogger can’t help but wonder – has this attorney ever claimed to “not have received” some crucial document in the past?  This time he was caught red-handed because a competent defense attorney was able to catch him; perhaps there have been cases where no one remembered or was willing to testify?

So, what lessons can we learn from this story?  Well, for starters, keep a keen eye on your calendar and make sure you don’t miss the chance to testify in your own defense.  Keep an eye on the dates involved – the defense attorney in this case was able to keep the rules and deadlines from being bent out of shape through diligence and a properly drafted answer.