Author Archives: Gregory Grinberg

WCAB Rejects Kite Claim for Different Body Systems

Posted on by
Reply

Happy Wednesday, dear readers!

Your humble blogger is big enough to admit that he’s an odd duck.  For example, as his classmates took nothing but delight in flying kites, your humble blogger was not one of those boys that enjoyed such things.  In fact, nothing made me happier, while walking on San Francisco’s Ocean Beach listening to “Smooth Jazz KKSF” to see a kite go down.  “That’s what you get” I would think to myself.  I already admitted to being an odd duck, what more do you want, dear readers?

Anywho, as I grew up, my listening tastes changed, but the delight in seeing a kite crash and break apart is still there.  So, with that little bit of glee, I offer you the panel decision of Bradley v. State of California.  Applicant, a corrections officer, sought reconsideration of a WCJ’s ruling that he sustained 90% PD (85% orthopedic, 23% skin disability, and 17% hearing disability) and instead argued that he was permanently totally disabled as the WCJ should have added his disability rather than combined it.

Applicant argued that the various conditions do not overlap, and thus should not be combined but added.  The WCAB rejected this claim, however.  Citing the WCAB’s decision in Kite, this panel articulated the rule that “adding, rather than combining, two different impairments better reflected a worker’s impairment when substantial medical evidence supported the notion that the two impairments in effect combined and the resultant impairment was more than the sum of the two impairments.” 

Of particular importance to the Bradley panel was the fact that in Kite, the evaluator wanted to add body parts/conditions that were all within that evaluator’s area of expertise.

By contrast, Mr. Bradley’s evaluators were all in different specialties (orthopedics, skin disability, and hearing) and so any opinion that the conditions should be added rather than combined would be outside of any of the physicians area of expertise.

Of interest, based on the opinions of the skin QME, the WCAB granted reconsideration to allow applicant to plead a separate CT for skin cancer because the QME opined the causation was different for skin cancer as opposed to the orthopedic and hearing loss claims.

So, what can we take away from this? 

The holding in Bradley reaffirms that in order to do a Kite rating, the two conditions to be added rather than combined most both be in the expertise of a single medical-legal evaluator. 

Further, to the extent that practitioners can parse out causation, defendants may be able to force a separate cumulative trauma.  So, if a CT is claimed for three body parts or systems over the same period of time (as an example, orthopedic knee injury, lung cancer, and skin irritation from cleaning chemicals), if the causation is different on the three systems, perhaps applicant could find himself with three awards of 20% each rather than a combined award of 49% PD.

All in all, the Bradley decision is not a bad one to keep within reach for reference, no?

Now, if you’ll excuse me, I’m going to make some children cry but cutting the lines to their kites (in honor of Bradley).  Till Friday, dear readers!

Psychiatrist Goes Down for WC Fraud

Posted on by
Reply

Happy Monday, dear readers, and, perhaps more importantly, happy Valentines’ Day!

For those of you brooding this Valentines’ day, frustrated with a broken heart or an evil ex, perhaps your humble blogger can brighten your day with a story of justice being done?

Here we are again and your humble blogger wants you to check your files for the name of George Demetrius Karalis.

Who is Dr. Karalis?  Well, he’s the latest exhibit in your humble blogger’s case for why we must be suspicious and thorough of every player in workers’ compensation, even the doctors.

Karalis was a psychiatrist in San Francisco who recently plead guilty to workers’ compensation fraud and ordered to pay $1.4 million in restitution and serve 120 days in jail.  As alleged, he coached federal workers’ compensation claimants on what to say in order to get benefits to which they were not entitled.

Although the discovered fraud pertained primarily to federal employees, it might be worth it to check to see if any of your treatment reports or liens or even AME reports are based on his opinions. 

So, dear readers, are you keeping an eye on your repeat-player med-legal and treating physicians?  Are there parts of the report that you could swear are copy-pastes of other reports?  Do your claimants go into their visit one way and come out with completely new symptoms and complaints?  These are akin to a Soviet military parade – lots of red flags!

Perhaps noticing such patterns is a good reason to investigate further.

Straight on till Wednesday, dear readers!

Insurance Agent Fraud Sentenced – Be Ever Vigilant!

Posted on by
Reply

Happy Wednesday dear readers!

Well, another week and another bit of news just to help us appreciate the various dangers facing employers in California. 

The Department of Insurance reports the sentencing of Karyl Lynn Reed for various fraud charges stemming from operating as an unlicensed insurance agent.  According to the press release, she collected premiums through Envoy Business Partners and Allenn Specialty Group.   She issued bogus Certificates of Insurance.  Her victims paid for the policies and operated thinking they were covered by a workers’ compensation policy when, in fact, they were uninsured.

Of course, aside from running a business and having to be on the lookout for fraudulent workers’ compensation claims made by employees (or alleged employees), California’s employers must also be on guard for the other side of the equation —  fraudulent insurance agents leaving employers exposed when on-the-job injuries occur.

If you’re considering engaging an insurance broker for a policy there are a few things you can do to verify that you are actually covered.  For one, ask to see the insurance agent’s license and run the credentials through the state’s license verification website.  Another step to take is, upon receiving a certificate of insurance and confirmation that the premium is paid, contact your insurance company directly and confirm that a valid policy exists for your business. 

Your humble blogger has represented parties alleged to have been illegally uninsured for workers’ compensation at the time of injury, and if you thought the deck was stacked against an insured employer, it is doubly so for an employer forced to unexpectedly adjust and defend a claim without the resources and expertise of a claims adjuster.  Exposure to severe penalties and costs await any employer so unfortunate as to find itself on the receiving end of an allegedly uninsured claim.

Your humble blogger tips his hat to justice being done – the sentence is four years in prison and a restitution order of more than $1.4 million – and hopes we can all profit from this news to remain vigilant from all sides.

A special, unscheduled blog post!

Posted on by
Reply

Hey there, my beloved readers! You might be asking yourself why, oh, why, your humble blogger is invading your in-box on Tuesday, when you are normally free from my incessant blog posts.

Well, the reason why is because I am so very pleased to announce that your humble blogger was a guest on Candid Conversations with Adam Lopez. So, if you’ve found yourself cursing your bad luck that you haven’t had a chance to hear the humble blogger present at a conference or your claims office, now’s your chance to see the legendary bow tie in action.

Adam Lopez is a fantastic interviewer and all around great guy to hang out with, so going on his show was nothing short of a delight.

And with that, dear readers, i will leave you to the rest of our day, eagerly awaiting Wednesday’s blog post to hit your in-box.

AB 1751: A Symptom of a Sick California

Posted on by
Reply

Happy Monday, dear readers! Here we are starting yet another week on a beautiful Monday in our beloved swamp of workers’ compensation. 

So, if you’re following the COVID news beyond the borders of California, you’re likely seeing a long list of countries (and states) that seem to be rolling back restrictions on COVID19.  England has already dropped almost all of its COVID19 restrictions, as has Ireland, as has Denmark, as have many states and counties. 

If that’s the global trend, why do we need to extend the sunset period for SB1159 and the presumption laws?  Why do we need to continue to burden employers with tallying total employees and for periods related to every covid exposure?  Why do we continue to make employers such as fire departments, police departments, and hospitals, general insurers against something to which we are all exposed?

That is the effect of proposed AB 1751, introduced by Assemblyman Tom Daly, which would extend SB1159 from sunsetting on January 1, 2023 to January 1, 2025.   California’s employers’ have been through the wringer already.  The golden state already makes it hard enough to keep the lights on, and COVID19 and the related lockdowns were brutal, keeping customers and clients away. 

With SB1159, California burdened employers further with a tremendous administrative undertaking in keeping track of numbers for outbreak purposes, reducing investigation periods from 90 days to 30 or 45 depending on the circumstances, and, in light of the See’s Candy case, likely setting employers up for liability in the torts arena as well.

Sacramento seems intent to look out at a flock of geese laying golden eggs and get excited for the prospect to cook them.  After the tremendous toll California’s employers have borne for the last two years, shouldn’t Sacramento be focused on helping California’s employers recover from COVID19? 

In any case, dear readers, your humble blogger wishes AB 1751 a swift demise and you, his beloved readers, a good week!

Does LC 4061(i) Have Cooties?

Posted on by
Reply

Ok dear readers, we made it to another Friday.  Now, as a reward for keeping your composure this whole week, how about a blog post about a recent panel decision? 

So way back when in 2013 we got SB-863 which reformed workers’ compensation and, among a whole bunch of other stuff, gave us Labor Code section 4061(i), which, presumably, should prevent having cases set for extent of PD or work restrictions until there’s been a med-legal and a treating physician evaluation.

Unfortunately (or fortunately, depending on which side of the argument you are on) 4061(i) will typically get you an eye-roll at best, so I wouldn’t hold out hope for an OTOC or continuance in most cases.  So let’s look at the recent panel decision of Gomez v. Pagliro Construction, Inc.  Defendant objected to setting all issues for trial as it sought an additional panel in internal medicine.  It also raised an objection under 4061(i).  When the WCJ denied the additional panel request and set all issues for trial, the WCAB got involved to address defendant’s petition for removal.

So why get an additional panel in internal medicine?  Applicant reported chest pains following his 10-foot fall and the orthopedic QME advised that such complaints, and the related issue of causation, was outside of the good doctor’s expertise.  He suggested referring the issue to a cardiovascular specialist.

The WCAB agreed that an additional panel was warranted, as solely having a PTP comment on the issue without the opportunity for a med-legal  would prevent defendant “from conducting necessary medical-legal discovery to determine compensability for the alleged injury to the chest and circulatory system.”   The panel decision went on “neither party is obligated to accept the findings of the treating physician regarding causation.  The Labor Code expressly provides a process for either party to object to a medical determination by a treating physician and request a medical-legal evaluation from a panel QME to address the dispute [citations].” 

So what about the 4061(i) objection?  Does the WCAB give us some guidance on how that applies?  Nope!  Because defendant is entitled to an additional panel, the 4061(i) objection is rendered moot.

4061(i) is supposed to afford parties an opportunity to have both a med-legal and a treating physician comment on whole person impairment and work restrictions before the matter is submitted.  We know from the case of Hernandez v. Costco Wholesale that if 4061(i) is not raised in an objection to a DOR, it may very well be waived.   From Bustos v. WCAB we know that merely seeing a PTP and a med-legal is not enough – each of them must address WPI/PD.

For whatever reason, this section has not been getting a lot of attention from the panels and thus we are not left with very much in terms of guidance.  Thus, dear readers, the title of today’s blog post.

What has your experience been, dear readers?  Your humble blogger is eager to read all about it.  Have a great weekend!

About those Non-Submit MSAs

Posted on by
Reply

And it’s Wednesday again dear readers!  So glad you could come back!

Here’s a hypothetical for you, dear readers.  You’re ready to settle your case by way of C&R, and you’ve ever reached an agreeable figure.  The applicant is saying “give me the money, and I never want to see you again.”  The defendant is saying “take this money, and I never want to see you again.”  At last, after depositions and med-legals and subpoenaed records and 5-hour trials over whether the UR report denying the $20 aspirin was timely, you’re finally ready to part ways forever and ever and ever.

Who else remembers the Sandlot?

Now here’s the problem.  At the start of the case, applicant looked like the guy on the right, and by the time you are ready for a C&R, he looks like the guy on the left.  So now you need an Medicare Set-Aside.

But both parties are ready to go and want the money now, and you don’t want the hassle of having CMS review and possibly sink the settlement.  So you do what’s called a “non-submit MSA,” where your vendor makes an overly cautious estimate of future medical and you proceed with the C&R without getting CMS’s sign-off. 

Well, the Federal Gubmn’t would like to have a word with you about that.

On January 10, 2022, CMS issued its “Workers’ Compensation Medicare Set-Aside Arrangement Reference Guide (Please shoot me an e-mail if you would like a copy!)  Section 4.3 specifically addresses such an approach with some scary consequences.  In short, if the MSA was not approved by CMS, CMS will require proof that the entire C&R was exhausted prior to providing benefits.

If there is a med-legal report that rates to 16% PD ($16,095) and future medical care is reasonable estimated at $20,000, and the parties end up settling for $60,000 to resolve all issues, including right to reopen, some disputed TD, AOE/COE on a denied body part, etc., then it looks like CMS would not provide benefits until there is proof that all $60,000 was exhausted, not just the $20,000 reasonably earmarked for future medical care.

“Yes,” you might say, “but what does that have to do with the price of tea in China?”  Well, if you were optimistic about getting those non-submit MSAs into your C&R, you might have cause to deflate a bit.  Applicant attorneys, once they hear about this, will be hesitant to recommend such arrangements to their clients lest they be faced with a mal-practice lawsuit or, even worse… a negative review on Yelp!

And even if you can get past a sleepy applicant attorney, all settlements must be approved by a workers’ compensation Judge, who must assess the settlement for adequacy.  In light of the CMS’s approach to non-submit MSAs, the WCJ might be reluctant to find a C&R adequate.

What can the defense community do in these situations to move files along?  Well, besides the obvious of stipping every case or submitting every MSA to CMS (which no one wants to do, of course), it looks like the only other real approach is to have either the defendant or the MSA vendor agree to pay, adjust, litigate, or defend the non-submit MSA in the event CMS declines to provide benefits. 

Another thing we should all be doing is cursing the name of CMS for ruining all of our fun.  A closed file is a happy file, and CMS’s approach is going to ensure that a lot fewer files get closed.  That makes for a lot more unhappy files, no?

Straight on to Friday, dear readers!

H.R.4728 and the 32-Hour Work Week

Posted on by
Reply

Happy Monday, dear readers!

Your humble blogger is happy to greet you back from yet another weekend, and boy do businesses have something to look forward to in their Herculean efforts to keep the lights on!

As everyone knows, your garden variety employee can work up to 40 hours per week at a regular rate, and then gets paid overtime (1.5 the base hourly rate) for hours worked in excess of 40 per week.  However, that’s not good enough for some folks in Washington, D.C., so we have a bill introduced in Congress  which should be titled “The Trigger Mass Business Closures and Layoffs Bill” but instead is called the “32-Hour Workweek Act.”

Congressman Takano (California’s 41st District) introduced H.R.4728 back in July of 2021 but has made the news recently drawing attention to the proposal.  So, let’s talk about the effects!

Well, for one thing, this is a significant increase in the cost of productivity.  The production captured in a 40-hour work week would go up in cost by 12.5%.  If you’re a California business already struggling to keep the lights on, how will the 12.5% increase in labor cost impact you?

Looking at it from the employee side, of course, we can anticipate many full-time employees being reduced in their work schedules to 32 hours to avoid the imposition of mandatory overtime for a 40 hour week.  So, if there were previously 4 employees working 40 hours per week, the business must now hire a 5th employee to have 5 people working 32 hours instead of 4 people working 40 hours.  Unless of course, the business has the misfortune of being in a place that has an ordinance similar to San Jose’s Section 4.101.040 which forces employers to prioritize making part-time employees into full-time employees before hiring more part-time employees.

And what effect would such a law have on the workers’ compensation world?  Besides the anticipated layoffs and business closures that would certainly follow the passage of such a law, any applicant who worked more than 32 hours per week prior to going out on TD, would likely claim that the law constitutes a wage increase and demand an appropriate increase in the TD rate.

And, of course, lay-offs and economic downturns always trigger massive claims for injury, whether post-term CTs or pre-term back strains. 

Hopefully, after the fanfare and attention that the internet gives such things now and then, H.R.4728 will die in committee and we will never hear of it again.  As for all the employers and employees who think a 32-hour work-week is a great idea, your humble blogger has a simple solution.  Negotiate with your employer and only work 32 hours per week.  One needs neither divine intervention nor an act of congress to negotiate a mutually agreeable arrangement.

And now, for no reason whatsoever, I offer the following meme…

See you on Wednesday, dear readers!

Emergency QME Regulations in Effect; Med-Legal QME Exams to Continue

Posted on by
Reply

Alright dear readers! We made it to Friday once again.  Before we shut off our brains and enjoy the weekend, how about a quick blog post?

Back in March the Department of Industrial Relations issued new regulations in response to the COVID-19 pandemic, increasing the time limits of QMEs to produce reports, schedule exams, and also providing guidance on how to conduct (or object to) QME exams using tele-medicine rather than in-person examinations.

Those were set to expire on October 12, 2021, but were extended for an additional 90 days as, quelle surprise, the emergency continued.  The extension was set to expire on January 10, 2022, and Government Code section 11346.1(h) limited re-adoption to a maximum of 180 days from when emergency regulations were first adopted.

However, this DIR Newsline from January 19, 2022, reports that effective January 18,2022, a fresh set of emergency regulations were adopted.   The current regulations allow med-legal evaluations through tele-health medicine where the following terms are met:

  • There is a medical issue in dispute, specifically AOE/COE, termination of indemnity benefits or work restrictions;
  • The parties agree to a telehealth evaluation, and refusal to agree can be the subject of a Declaration of Readiness to Proceed;
  • The QME and the relevant medical licensing board agree the evaluation is conducted in a manner consistent with ethical medical practices; and
  • The QME attests in writing that the evaluation does not require an in-person physical exam.

Also, the tele-medicine must have a video component.  Audio-only is insufficient.

Finally, the initial medical evaluation will be “located” at the QME office listed on the panel.

The emergency continues, dear readers, and we are almost at year two of said emergency.  Have a great weekend!

What Ever Happened to Prop. 22? Oh Yeah…

Posted on by
1

Happy Wednesday dear readers!

Everyone has their favorite saga.  For some, it’s Lord of the Rings, for some it’s Star Wars, and for a shrinking few out there, it’s even Game of Thrones.  But for workers’ comp nerds like your humble blogger, there’s always room on the shelf for the California saga of the gig workers: employees or no?

As we all will recall, between stories of wall-to-wall COVID coverage, we saw the unfolding of California’s misguided efforts to cut off its nose to spite its face.  AB-5 passed in California in an effort to hurt the gig economy entities: UBER, Lyft, Doordash, and the such.  However, those giant entities marshalled the resources to challenge AB-5 turning the gig workers/independent contractors into employees.  Instead, they financed Proposition 22 which passed with more than 58% of the vote, excluding the gig economy from the reach of AB-5.

A trial judge ruled that proposition 22 was unconstitutional and an appeal followed, which is still pending.

In the meantime… what’s the status of the law?  Are gig-economy workers employees as per AB-5?  Independent contractors as per Prop. 22?

In the recent panel decision of Dolmajian v. Doordash this very issue was explored.  A workers’ compensation judge set the matter for a priority conference, and ordered defendant Doordash to complete a joint pre-trial conference statement.  However, defendant sought a stay of proceedings pending the appellate review of the Proposition 22 ruling.  As defendant sought removal, the WCJ rescinded the order, but also asked for guidance from the WCAB, which dutifully obliged.

The guidance, summed up, was as follows:

  1. Defendant should be afforded a hearing on the petition to stay proceedings;
  2. 8 CCR 10530 governs petitions for stays and should be followed in seeking a petition to stay proceedings;

The case is off calendar at the time of this blog post, so one might speculate that the petition for a stay was granted, at least temporarily.  Certainly, there must be many of these cases out there, waiting to see the fate of Proposition 22 and their workers’ compensation cases.  If Proposition 22 is ultimately found to be invalid, will we see a flooding of the WCAB’s calendar with all the cases so stayed?  On the other hand, perhaps the uncertainty and delay in the ruling on Prop. 22 will lead to more early settlements.  A closed file is a happy file, dear readers.

What do you think?

Straight on till Friday…