Author Archives: Gregory Grinberg

A Civil Case Defense to 132a?

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Can an illegal alien, who obtained employment through fraud, prevail on a California Workers’ Compensation discrimination claim?  That’s the potentially tangential issue in a recent case, Salas v. Sierra Chemical Co.

California Labor Code § 132a prohibits discriminating against an employee for filing a workers’ compensation claim, or for participating in the workers’ compensation process, such as being a witness.  Liability for a Labor Code § 132a claim is not insurable.

In Salas, the Third Appellate District of the California Court of Appeals affirmed a trial judge’s granting of a motion for summary judgment, where the injured worker had acquired employment by using someone else’s social security number.

Salas was in a seasonal position and was laid off and re-hired on a regular basis.  At the end of one of such work periods, Salas injured his back (for the second time), and filed a workers’ compensation claim.

After the general workforce was recalled, Salas was told he could only have his old job back if he had no work restrictions.  Salas filed a civil lawsuit, alleging, among other claims, that Sierra “denied him employment to punish him for filing a claim for workers’ compensation benefits, and to intimidate and deter him and others from bringing such a claim.”

Interestingly enough, an EAMS search shows that the case settled by compromise and release in 2008, but does not reflect a Labor Code § 132a claim.

The appellate district affirmed the granting of defendant’s motion for summary judgment.  Responding favorably to the assertion that Sierra would never have hired Salas had it known about his fraudulent application, the trial judge and the appellate district found for defendant.

One caveat to this is that the facts in this case suggested that Sierra did not know that Salas was using another person’s social security number.  Had there been evidence of Sierra’s knowledge of the same, the case would have probably gone differently.

Salas still has time to appeal, but for now, this case presents an interesting opportunity to test a defense to Labor Code § 132a claims.  How the typical Workers’ Compensation Judge, and, more importantly, the typical Workers’ Compensation Appeals Board panel, will respond to this argument, will only be revealed by time.

Yet Another Way to Get a Second Panel

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It’s hard to be a California Workers’ Compensation defense attorney and not become a little cynical.  After all, the California legislature dangles a carrot in front of you, and just as you’re about to bite, the Workers’ Compensation Judge, the Workers’ Compensation Appeals Board, or even the higher-ups in the judicial branch yank it away.

At the moment, I’m brooding over the case of Denys-Peck v. Sonora Surgery Center.  There, applicant braved the workers’ compensation system alone, and ended up with a panel Qualified Medical Evaluator finding her various body parts either non-industrial or without a ratable impairment.

Applicant then called in the cavalry, and her attorney demanded a new panel.  Now, if you’re a regular reader of my humble post, you know that Labor Code § 4062.1 specifically prohibits an additional evaluation in cases where a formerly unrepresented applicant becomes represented after already having an evaluation.  Can’t you just taste that juicy carrot that the legislature is dangling?

Here is where the carrot gets yanked away.  Applicant and her attorney claimed cumulative trauma to the same body parts (and one more, the knees).  Then they demanded a new panel for the cumulative trauma.

The WCJ ruled and the WCAB affirmed that the applicant must return to the first QME for the specific injury but can have a new panel for the CT.

With the same body parts injured, the applicant effectively gets a second panel, now that she is represented.  Hopefully, an appeal will see this position adjusted – the legislature clearly expressed its hostility to QME shopping and repeat attempts at an evaluation.  Simply pleading the same body parts over a cumulative period to get a new QME flies in the face of the law.

For now, the best the defendant can do in this case is to minimize the damage dealt by the second panel.  Other than that, just sing the carrot song to make it all better.

Workers’ Compensation Pilot Program

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An interesting pilot program is coming into formation for Butte County, California.  This pilot program will require those seeking to perform contract work with the county to prove they have workers’ compensation insurance for their workers.  For now, if approved, the program will apply to roofers and swimming pool builders.

There are presently criminal and civil penalties for not having workers’ compensation insurance or obtaining inadequate workers’ compensation insurance by fraud.  (Picture the agent selling insurance in the office of the employer, being told that there are a total of four employees working for the company when he can clearly see more than that working in the warehouse.)

I, for one, am always in favor of making life easier for businesses and employers.  Enough of California’s companies are being poached by the likes of Arizona, lured away with promises of New York Iced Tea and some of the lowest Workers’ Compensation costs in the country.

But while I am for making the laws easier to understand and cheaper to comply with, I can not abide the fraud some employers engage in to avoid paying Workers’ Compensation costs.  This gives them an unfair advantage when competing with employers who bite the proverbial bullet and follow the law.

Hopefully, this program will be adopted in more counties throughout the state and for more than just roofing and swimming pool work.

New Proposed Regulations

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The Department of Workers Compensation has announced that it is proposing new regulations, mostly having to do with lien claimants.  You can see the notice and read the new regulations here.

The proposed changes include a process for dismissing liens that have been inactive for the last year, similar to the dismissal of cases for lack of prosecution.

The new proposed regulations also limit the filing of liens to new or opening liens, and lifts the requirement to file (but not to serve) the itemized list that make up the basis for the lien.

Also, it appears that defendants will have grounds to argue that an improperly filed lien is not filed and not binding, even if it is served.   The new proposed regulations even seem to allow for sanctions and attorney’s fees for violations of the new procedures.  (The threat of sanctions is a useful tool in curbing the advances of lien claimants.)

I, for one, am eager to see how much of this survives and becomes the law of the land.  It looks like, before too long, defendants might have a new set of maneuvers to ward off the Lien Pirates!  Even for a cynical workers’ compensation defense attorney, hope springs eternal.

What Constitutes a Request for Medical Treatment?

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Under Labor Code § 4600, the insurer or self-insured employer must provide medical treatment “reasonably required to cure or relieve the injured worker from the effects of his or her injury” or else face the risk of having to reimburse the employee for his or her visits to Dr. McOver-Prescribe.

But at what point do the adjuster’s duties of approving the treatment or undertaking the expense of Utilization Review kick in?  For example, if a chiropractor calls the adjuster and says “Jim needs 100 more treatments of Placebo-tox” or “your employee Kathy would really benefit from my patented Medo-Widget,” must the adjuster act?

Or what if you open your mail and there is a note from a treating physician, simply saying “please authorize treatment X”?

Labor Code § 4603.2(a) states that the employee’s treating physician “shall submit a report to the employer within five working days of the initial examination and shall submit periodic reports at intervals that may be prescribed by rules and regulations adopted by the administrative director.”

So what regulations have been adopted by the administrative director?  Take a look at 8 CCR § 9792.6 (o).  This sets out the requirements for a request for treatment.  If the request is made orally, such as in a telephone call, it must be followed by a written request within seventy-two hours.

The written requests (both as originals and as the follow-up) must be on forms PR-1 or PR-2.  Otherwise, the request must be in a narrative, containing the same information as a PR-2, and “the document shall be clearly marked at the top that it is a request for authorization.”

In other words, if the proper procedure is not followed, no soup for you!

On Demanding a Lien Representative’s I.D.

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On a regular basis, liens I encounter are filed by lien representatives.  Rather than prosecuting the lien itself, the lien claimant assigns the task to one office or another, generally for a percentage of the recovery.  In fact, a regular part of practicing California Workers’ Compensation defense is fighting off unwarranted and baseless liens.

Some cases go on for years, however, and a lien-claimant’s representative might change with the seasons – different person, different office or even a different firm/company.  How do you know if the “new” lien representative actually has the power to negotiate and settle a lien, and the old one no longer does?

For swapping attorneys in the case-in-chief, there is a process to substitute attorneys, as per the Code of Civil Procedure § 284. It appears that no such procedure is followed for lien representatives.

With that in mind, I have a suggestion:  When a lien representative sends that initial demand letter, a proper response includes some demand for documentation that the lien representative actually represents the lien claimant.  That includes authority to negotiate and settle the lien.

In a recent case, Green v. State Roofing systems, Inc., the Workers’ Compensation Appeals Board reviewed a Workers’ Compensation Judge’s granting of a Petition to Quash a Subpoena Duces Tecum, which, among other items, demanded documentation of the agreement and arrangement between the lien claimant and the lien representative.

The case was remanded to work out a discovery plan, but the point is a valid one – defendants must be able to know who the lien claimant is and who its representative is before the lien can be paid, adjusted or litigated.

New Procedure for the Medical Unit?

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Apparently there is a new notice coming out of the Medical Unit: Medical Unit Memo.  This copy is reportedly being attached to all panels now issued by the Medical Unit.

The grounds for obtaining a replacement panel are few, but one of the most common ones is when the Medical Unit fails to follow its own procedures for issuing a panel.  In my experience, usually the applicant will request a panel with the specialty of chiropractic (without any supporting documentation), when the treating physician is a orthopedist or some other M.D.

This is, of course, is a violation of California Code of Regulations § 31.1(b).  Requests to issue a replacement panel sometimes meet with resistance and judicial intervention becomes necessary.

According to this memo, however, it appears that the Medical Unit is not reviewing the panel requests for accuracy and is shifting the burden of following the regulations to the parties.

For defense attorneys, this changes little – as always, we must remain vigilant to make sure a lung or psyche applicant does not get “evaluated” by a chiropractor.  So, as always, I am keeping my DoR forms loaded and my finger on the trigger!

Presently, I am trying to get a copy of the memo which has some letterhead or signature, and possibly a date, so that it carries with it some official weight.

As soon as your humble editor has one, so will you.  If anyone has an official copy, eternal gratitude will be yours if you could e-mail it to:  gregory.grinberg@htklaw.com.

On Playing Chicken With § 4616

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In April of 2011, the Workers’ Compensation Appeals Board issued a firm rebuke to applicants’ attorneys and lien claimants all over the state:  “where unauthorized treatment is obtained outside a validly established and properly noticed MPN, reports from the non-MPN doctors are inadmissible, and therefore may not be relied upon, and … defendant is not liable for the cost of the non-MPN reports.”  (Valdez v. Warehouse Demo Services).

The advantages of setting up a Medical Provider Network are many, some of which are discussed here.  In particular, under Labor Code § 4616 insurers and self-insured employers can set up networks of medical providers, and all treatment must be received from one of the providers in the network.

In Valdez, applicant was provided treatment within the insurer’s MPN for an admitted injury.  After a month of such treatment, applicant began receiving treatment from a doctor outside of the insurer’s MPN at the behest of her attorney.  Apparently this was because the MPN doctor’s treatments were not helping her, yet she never contacted the insurer to find a different doctor within the MPN.

The WCJ awarded additional temporary disability, relying on the report of the non-MPN doctor.  The WCJ further allowed a lien from the Employment Development Department for the TD period.

In response to defendant’s petition for reconsideration, the WCAB held that the law was the law, and absent a situation in which defendant refuses to provide medical treatment “that is reasonably required to cure or relieve the injured worker from the effects of his or her injury”, the MPN stands.

But then the WCAB blinked, and now we have the NEW Valdez opinion.  On July 14, the WCAB issued a new en banc opinion, calling for more time to study the issues of the Valdez case.  Hopefully the new opinion will not “fix” what isn’t broken.

As soon as your humble blogger knows more, so shall you.  In the meantime, I would hope for the best.

STOP “Developing” the Record!

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Are you tired of locking down evidence at the Mandatory Settlement Conference, proving your case at trial, and then being told to start over again by “developing the record?”

Again and again, California Workers’ Compensation defense attorneys witness judges helping applicants take a second or third shot at the target, often being told specifically what evidence needs to be added to the second trial to justify an award (or a bigger award).

Two recent Workers’ Compensation Appeals Board panel decisions seem to be starting the trend away from this practice.

In the cases of Bates v. Valley Vintners Wine Company (2011) and Elias v. Saticoy Lemon Association (2011) [Full disclosure: the former case was handled masterfully by Thomas J. Harbinson and Laura K. Lachman] the panel put a stop to this “develop the record” trend.

In Bates, after the MSC and trial, the Workers’ Compensation Judge disregarded defendant’s references to apportionment evidence and the rater’s use of an incorrect occupational group number for the applicant, finding him permanently and totally disabled based solely upon the Le Boeuf expert’s independent opinion without backup support.

Following defendant’s petition for reconsideration, the WCJ rescinded the Findings and Award, and instructed the parties to appear for further trial proceedings to “develop the record” to allow additional testimony from applicant’s vocational rehabilitation expert on the issues of “vocational feasibility, labor market survey, and/or necessity for vocational testing.”  Defendant responded by filing a petition for removal.

Citing Labor Code § 5502(e)(3), the WCAB held that discovery closes at the MSC.  Furthermore, once “the record is supported by substantial evidence from which a decision can properly be made, there is no basis to order development of the record.”  (Citing San Bernardino Community Hosp. v. Workers’ Comp. Appeals Bd.)

Similarly, in Elias, the WCJ vacated the submission of evidence and ordered development of the record on the issue of causation, also demanding the production of an additional opinion from the treating physician.

Defendant petitioned for reconsideration (which the WCAB held was improper, and instead ordered removal).  The WCAB again held that, absent a “showing that there was evidence applicant could not have discovered or obtained in the exercise of due diligence prior to the MSC,” Labor Code § 5502(e)(3) [the statute is erroneously cited as (d)(3) in the opinion] prohibits the admission of new evidence.

My favorite quote from the Elias opinion?  “In ordering parties to obtain [additional evidence] the WCJ is, in effect, doing applicant’s attorney’s job.”

Both WCJs were instructed to issue a decision on the present record.

Of Broken Hearts and Broken-down Benefits

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Jack and Jill fall in love and get married.  Jill hurts herself coming down the well and makes a Workers’ Compensation claim.  Because Jill fell in 1992 and this occurred under the California Workers’ Compensation system, this was going to be a long, drawn-out affair.

Jill’s injury left her unable to work, and, in 2002, she received a lump sum award of just over $172,000 (after her lawyer was paid).  In 2005, Jack and Jill decided to go their separate ways, but there was some dispute as to how, exactly, they ought to split the sheets.

Jill, of course, maintained that the Workers’ Compensation award was her separate property!  Jack, on the other hand, claimed that it was community property and should therefore be split between them, in accordance with Family Code § 760.

So what is the right answer?  Are Workers’ Compensation benefits community property?  Or do they stay with the injured spouse?  That was the issue in the case of In re the Marriage of Flora S. and George L. Ruiz (2011).  [Practitioners, be careful – not all parts of this case are certified for publication.]

The trial court held, and the Court of Appeals affirmed, that the portions of a lump-sum Workers’ Compensation award that are meant to cover out-of-pocket expenses for medical treatment and to replace the lost earning capacity during marriage are community property.  The rest sits comfortably in the injured spouse’s pockets.

But here’s the catch – the burden of proof lies squarely on the injured spouse to prove that this property is separate.  Without some proof as to how the lump sum was calculated, the injured spouse is out of luck.  Otherwise, the Family Code presumption kicks in and the community wins.

The implications of this case are something to look out for when the injured worker wants to itemize his or her benefits award (Yes, I’ll waive reimbursement for medical treatment if you note in detail that all benefits are for lost earning capacity…)