Author Archives: Gregory Grinberg

Immigration Status Bars Total TD Again!

Posted on by
Reply

Recently, your keen-nosed blogger had sniffed out and reported on a case in which a workers’ compensation Judge had awarded an applicant total temporary disability when her employer could not offer her work because, as it turned out, she was in the country illegally.

It appears that the Cubedo decision was not an isolated case but rather the start of what could well be the policy of the Workers’ Compensation Appeals Board.  Though no binding authority by any means, a workers’ compensation defense attorney should be well advised of this possible defense.  Recently, a panel rescinded a WCJ’s award of total temporary disability because any sort of employment: regular, modified, or even alternative, was prohibited by the law after the discovery that applicant was in the country illegally (much like Ms. Cubedo).

In the case of Martin Esparza v. Barrett Business Services the WCAB held that applicant’s inability to work, due to his immigration status, does not render him TTD, and so applicant gets nothing (at least no type of temporary disability benefits).

TTD is not a forgiving fox once let into the hen-house, and the defense attorney dodged a big bullet for his client in this case.  But before the defense community erupts in a choreographed dance number all over the state to celebrate this decision, I urge you to consider two potential dangers on the horizon.

First of all, employers face the risk of prosecution for hiring illegal immigrants.  Some employers think they can turn a blind eye when hiring a new employee, especially to the more glaring social security and application frauds, then suddenly see the light when it comes time to pay out after an injury.  Sooner or later the federal government will decide to refill its coffers through fines and penalties, and employers are always a juicy target.  In other words, be careful who you hire – temporary disability might turn out to be the least of your concerns!

The federal government isn’t the only one with coffers to fill.  If you saw yesterday’s post, you know that California is going to have three more WCJ salaries and pensions to fund.  The state has already created a Death Without Dependents unit to pick the pockets of dead employees and leave their relatives out in the cold.  The state can just as easily create a unit to collect temporary disability that would go unpaid because of immigration status.  And, as DWD generally collects the maximum death benefit for a spouse with no children, a unit of this sort could collect 104 weeks of TTD.

One way or another, by hard-working readers, either California, or the United States Government (or both) will get it’s “due.”

California is Hiring WCJs!

Posted on by
Reply

Are you tired of the seemingly powerless life of a workers’ compensation defense attorney?  Do you grow weary of pitting workers’ compensation Judges against commissioners, and commissioners against Court of Appeal Judges in a desperate effort to secure some tiny sliver of justice for you client?  Perhaps it’s time you took up the gavel yourself and stemmed the flow of blood being drained from the veins of California’s employers.

No, I’m not suggesting we form some sort of vigilante workers’ compensation Board or somehow privatize the Workers’ Compensation Appeals Board (oh, if only!).  As a matter of fact, after discovering a surplus in the pension budget California is looking to hire some more judges.   But you better hurry – the deadline is, in a gentle nod to that secret spot in our hearts that is home to the more romantic things in life, February 14th.

The venues are San Jose, Marina Del Ray, and Long Beach.  Benefits include the use of two flat-screen monitors in every courtroom, the endless droning of lien claimants, the threat of removal or reconsideration at every step, and semi-celebrity status when you suffer occasional ridicule on this blog.

But, do not get your hopes ups – with a 1/31 post date and a 2/14 deadline, I’m guessing there are already some candidates in mind; but what does a private-sector-dweller like your speculative blogger know?

Good luck!

Knowledge of WC Presumptions is not Knowledge of Industrial Causation

Posted on by
Reply

Applicant fireman and fire chief filed an application in 2008 for what turned out to be a cancerous lump discovered on his neck in 2004.  The Workers’ Compensation Judge and the Workers’ Compensation Appeals Board promptly handed applicant an award.  But wait – under Labor Code section 5405(a), there is a one-year statute of limitations on filing workers’ compensation claims.

The case is Gary Scholar v. City of Chico, and the defense of statute of limitations was raised – only to be defeated by applicant’s claims of ignorance.  In the panel opinion, the majority went over applicant’s testimony, given at trial, that no one told him the lump was certainly cancer until 2008, at which time he promptly filed a workers’ compensation claim.

Now, your sarcastic and cynical blogger is sure that at least some of his wise and learned readers are wondering why the defense took it this far – this majority opinion presents the facts as a slam-dunk case for the applicant and the litigation dollars were apparently just wasted.  Well, not so much.

One of the first maxims law students learned, at least they did back in my day, is: “if you want to know what really happened, read the dissent.”  And read the dissent your diligent blogger did.

Commissioner Lowe, dissenting from the majority opinion, presented facts that may have otherwise been overlooked.  For example, at his deposition, applicant testified that after a 2004 surgery, the surgeon told applicant that the lump was positive for cancer.  The defense even took the surgeon’s deposition, at which time he testified that applicant was “definitely” aware that the lump was cancerous, and even the type of cancer, in 2004.

“Well, alright,” you may be thinking, as you sip your morning coffee and use this blog to put off work for a few minutes, “assuming he knew the lump was cancer in 2004, how was he to know that it was industrial?”  Well, applicant was a fire chief and testified that he was well aware that cancer found in firemen is generally presumed industrial.  In other words, the evidence shows that in 2004, applicant knew he had cancer and knew that the law would most likely presume that the cancer was industrial.

In all fairness, this ruling does have some reasonableness to it – perhaps it was too close for the WCAB to go against the WCJ.  In the world of WCDefenseCA, however, applicant’s claim should have been barred by the statute of limitations.  This workers’ compensation defense attorney opines so, at least.

What do you think?  Is your dear and loyal blogger over-favoring the defense?  Or did the WCJ get it wrong?

New Study Shows that AMA Guides Were a Big Win for CA

Posted on by
Reply

Is it still news if it’s not particularly “new”?

The Center for Study of Social Insurance has provided an estimate of the effect of the adoption of the AMA Guides for California’s workers’ compensation system.  Your typical California workers’ compensation defense attorney should be thanking his or her lucky stars for the adoption of the AMA Guides – a actual, scientific approach to rating disability, with a limit of quack doctors puffing up liability and impairment – a dream come true!

The estimate looked at the years of 2010 through June of 2011 as compared to the years 2003-2004, specifically looking for total rating, total pay-outs, and other indicators of that sort.  The results are no particularly surprising but still deliciously wonderful to hear:

A 40% drop in ratings before apportionment for unrepresented cases and a 28% drop in represented cases (it appears that it is worth it for applicant’s to retain an attorney).

A 52% drop in compensation for unrepresented cases and a 37% drop in represented cases.

And, the best part of all, a 25% reduction in cases that would have had some rating of permanent disability.  Bear in mind – that is with Almaraz/Guzman trying to worm its way through the heart of the AMA Guides and the 2005 reforms.

The governance of California is a book riddled with errors big and small – it does not appear that history will regard moving from the 1997 schedule to the AMA Guides to be among them.

Another Pro-Medical Provider Network Panel Decision

Posted on by
2

California’s Medical Provider Network is regularly the subject of both applicant attorneys’ and lien claimants’ raids.  But, just as walls well guarded do not fall, the MPN still has some stiffness in it left.

The recent panel opinion of Breanna Clifton v. Sears Holding Corporation shows the Workers’ Compensation Appeals Board’s resistance to applicant’s efforts to overwhelm the defense with burden after burden of proof.

Applicant self-procured treatment outside of defendant’s MPN, claiming she was entitled to temporary disability payments and reimbursement for treatment based on the opinion of this out-of-network chiropractor.

Defendant pointed out that the report was inadmissible and the claim for reimbursement barred in accordance with Valdez.  Applicant responded by claiming that defendant had not proven that the MPN was valid.

Defendant filed for reconsideration following the workers’ compensation judge’s award of everything under the sun to applicant.  In an act of moderation, the WCJ declined to order the executives of Sears Company to personally apologize to applicant in the form of a choreographed dance and song routine for daring to invoke a defense.  (Some day…)

Although the defense did not contest the finding of injury, it did object to the admission of the reports and the reimbursement for treatment expenses.

The panel held that “a defendant may satisfy its burden of proving it has a properly established and noticed MPN by asserting that it has an approved MPN and requesting judicial notice of the inclusion of its MPN in the list of approved MPNs on the [Administrative Director’s] Web site, and by offering unrebutted evidence that it provided the required notices.”

Lien claimants have threatened to demand I prove every element and procedural requirement necessary for a valid MPN – now, the AD’s website is all the proof any attorney needs.

But what do you do when the applicant claims the notices were never provided?  Or, perhaps, after X years with his or her employer, the applicant suddenly doesn’t understand English?  The injury, you see, limited the applicant to his or he native tongue.

This can happen, of course, and the deposition will likely tip you off.  But be prepared with affidavits, witnesses, etc. – perhaps even a note in the employment file that applicant also speaks another language, so that the Medical Provider Network administrator can provide notices in English and the other language as well.

In any case, the MPN is a great wall against bad reports and inflated billing – when applicants and lien claimants try to push it down, don’t be afraid to push back!

The MPN is Back! (For Now)

Posted on by
Reply

The post made on Wednesday had some scary implications.  Fortunately, it appears there may be a light at the end of the tunnel, and this time it has a 50-50 chance of not being a train.

In the case of Michael Thomas v. Safeway Stores Inc., the Workers’ Compensation Appeals Board had previously ruled that the self-insured employer must pay for surgery to be performed by a surgeon in Washington, even though there were eleven surgeons in Safeway’s medical provider network which could do the surgery and were close to applicant’s residence in the San Francisco Bay Area.

Panic ensued among the defense community as the California Applicant’s Attorneys Association toasted to the death of the MPN over flutes of champagne.  But it appears that Safeway stood firm and in filing a petition for reconsideration was rewarded with the sight of the WCAB blinking.

Standing firm against the waves is a sensation every workers’ compensation defense attorney wants to feel – staying standing when the wave crashes against you is one rarely felt.

A new order issued granting reconsideration, giving the parties ten days to settle this dispute or to return to the workers’ compensation judge to give the defense a chance to cross-examine the panel qualified medical evaluator and offer rebuttal evidence.  After all, defendant’s due process rights were summarily brushed off thus far.

Defendant’s offer to settle the matter was fairly reasonable:  Safeway would pay for the surgery under the California fee schedule and applicant would pay for travel and lodging.  There is no word yet on whether the applicant, let alone the surgeon in Washington, would agree to these terms.

In short, it appears that sanity might return to the world of workers’ compensation, even if for a short while.  Workers’ compensation lawyers and adjusters can rejoice in that, at least for now.  Despite rockets red glare and bombs bursting in air, the MPN flag is still there!

In what is quickly developing into an MPN trifecta here at WCDefenseCA, drop by on Monday to see another pro-MPN opinion recently released into the wild.

Comp Slickers: The Legend of Harder’s Gold

Posted on by
Reply

California owes some of its prosperity to Man’s never-ending search for gold.  The process of mining gold, from a complex company operation to one gritty solo prospector, reminds many Californians of our own collection and adopted heritage.

So what separates Stephen Eugene Harder of Woodland from these brave gold hunters who pierced the Earth with their gaze and their mining equipment?  Well, Curly the Gold Miner probably never filed a workers’ compensation claim, and also didn’t claim disability in between swings of his pickaxe.

Harder was arrested after footage was obtained of his engaging in, among other things, gold mining activities.  Before any confusion ensues and a possible libel action arises, Mr. Harder was NOT caught in an effort to marry a wealthy, significantly older, spouse in the hopes of a profitable divorce.  This is the old-fashioned type of gold-digging that includes retrieving precious metals from the Earth.

The Yolo County District Attorney’s Office scored a conviction of five counts of workers’ compensation fraud.  Sentencing is scheduled for March 23.

While WCDefenseCA thanks Mr. Harder for keeping California’s gold-mining heritage alive, a much bigger (and considerably less sarcastic) salute goes to Yolo County District Attorney’s Office.

Another Cut at the MPN

Posted on by
6

Gather around, dear readers, and let your eloquent and intriguing blogger tell you a story.  Once upon a time, in a realm known as California’s workers’ compensation, defendant employers came together to for the mutual benefit of employers and employees alike, creating the medical provider network system to weed out prescription-happy and over-billing medical care providers.

All was well with the world, but at every turn applicant’s attorneys, to the detriment of their clients, and medical providers, to the detriment of their patients, tried to overthrow the MPN system.  The fate of MPNs dangled precariously and uncertainty filled the air when, to the surprise of all, the Workers’ Compensation Appeals Board issued several en banc opinions in the Valdez case, declaring that applicants must limit their treatment to medical provider network physicians, that the reports of non-MPN physicians were inadmissible, and that insurance companies and self-insured employers were not liable for the non-MPN medical bills.  And joyous celebration erupted in the streets!

Then, of course, the world of workers’ compensation came back to its senses and tossed the rule of law out the window.

The case of Michael Thomas v. Safeway Stores, Inc. is making the rounds and creating quiet a bit of chatter on and off the internet.

Michael Thomas sustained an injury to his shoulder and required surgery.  However, applicant’s treating physician wrote a report in which he claimed that the 11 MPN orthopedic surgeons in the San Francisco Bay Area were not qualified to perform the surgery, and that the only man in the world that could possibly save applicant’s shoulder was a surgeon in Washington who had written several articles on the matter and performed the surgeries with some regularity.  One of the treating physician’s more memorable quotes: “If Mr. Thomas was my family member, [the Washington surgeon] is the only one I would even consider treating a case like Mr. Thomas’s.”

I only wonder where the treating physician would send Mr. Thomas if the treating physician himself had to pay for the surgery – it is so easy to be generous with the money of others, after all.

Applicant petitioned for reconsideration of the Workers’ Compensation Judge’s ruling denying the treatment, arguing  that the “reasonable geographic area,” as contemplated by California Code of Regulations section 9780 can be determined on a case-by-case basis, and in this case should include the 812 mile distance to the Washington surgeon’s office.  The WCAB ruled that  the facts in this case compel a finding that a surgeon in Seattle, Washington is in the reasonable geographic area of San Francisco.  Naturally, defendant must pay for flights, accommodations, and whatever fees may come.

Doesn’t this case mean that all you need to beat an MPN is to have a treating physician say none of the locals are qualified?  Hopefully, this will be an isolated lapse in judgment rather than a new policy.

Overtime Costs More Than Time and a Half

Posted on by
2

How long is your work day?  The attorneys I see slaving away over their files, your humble lawyer/blogger included, often put in ten to twelve-hour days, sometimes including evenings and weekends.  And, unless there is some extensive and complicated conspiracy amongst all the adjusters dealing with California workers’ compensation, the adjusters are seeing similar hours and overflowing work load.  Often enough, I hear surprise on the other end of the phone when a 7:00 am phone call is answered, but if you’re at work and making the call, why wouldn’t I be at work and taking it?

LinkedIn discussions place the problem with third-party administrators, underbidding and then overworking their employees, but the blame can be placed on the industry – higher costs, lower business revenues, and a worse situation for all involved.  A recent study by the Finnish Institute of Occupational Health and the University College of London, draws a link between overtime work and depression and higher risk of coronary heart disease.

Why should this matter for the workers’ compensation defense community?  Well, for one, we should all be keeping an eye on our own health (remember those New Year resolutions that have yet to gather the dust of a single month?)  Another reason this matters is that, if true (and even if it isn’t), you can expect to see psyche claims based on overtime, especially if the scent of layoffs is in the air.

Recently, we saw a case in which an applicant was awarded treatment and PD for a psyche “injury” because he couldn’t keep up with the requirement of using computers to do his work.  How long before we see regular claims for being asked (or volunteering) to work overtime?

Picture the applicant giddy at the prospect of earning more money through overtime pay, then collecting benefits after filing a claim based on being asked to work overtime.

So, when are you quitting tonight?

Post Termination Psyche Claims Barred? Not in My Workers’ Comp…

Posted on by
1

Your loyal blogger seems regularly at odds with panel decisions on the meaning of Labor Code section 5412, specifically as to the term “in the exercise of reasonable diligence should have known.”

In your blogger’s simple and straightforward world, the statute means what it says.  So, for example, if you pick up a box at work, feel a sharp pain in your back, and then your back hurts from that point on, the exercise of reasonable diligence quickly helps you connect the dots – one does not need a rocket scientist, a brain surgeon, or even a chiropractor to conclude that the disability flowing from that instance is industrial.  But enough of Grinberg’s world, back to the world of California Workers’ Compensation.

In the case of Bertha Chan v. Carl Karcher Enterprises, the panel came down in favor of the applicant.

Applicant was allegedly enduring a campaign of physical and verbal sexual harassment by her immediate supervisor, when her employment was terminated in December 2007.  Applicant then filed an application one month later, alleging psychiatric injury as a result of the alleged harassment.
The treating physician and the Panel Qualified Medical Evaluator both found industrially caused injury. But what about Labor Code section 3208.3(e)?

A cumulative trauma can’t be sudden;
There was no notice to the employer of the injury;
There was no medical record of the impairment prior to the claim;
The trier of fact specifically found there was no sexual harassment; and
The exercise of reasonable diligence would have lead applicant to conclude that whatever impairment she had sustained was industrial.

After all, either applicant had sustained an impairment or she hadn’t – if she had, it happened at work before being fired; if she had not had any impairment by the time her employment was terminated, then something other than work caused it.
Assuming she had sustained some psyche injury prior to the termination of employment, then how could physical and verbal sexual harassment on an ongoing basis not be linked to the impairment?

Your garden variety defense attorney is thus forced to watch logic prove a blunt tool in situations such as these. It is worth noting that the defense attorney in this case, in the filed answer, acknowledged that there was no evidence presented at trial of the concurrence of applicant’s disability and knowledge of the industrial causation of the injury.  But actual knowledge isn’t the standard; the standard is known or should have known.  The defense has petitioned for reconsideration.  I hope you will join me in waiting to see if, perhaps, some new life could be breathed into this defense.