Your humble blogger wishes all of his beloved readers a happy Shanah Tovah! May this be a sweet year for you and yours and may all the horrors of this pandemic soon appear behind us. May your apples be dripping with honey.
Also, a very happy Labor Day to one and all. Please remember, dear readers, that as Labor Day is a state holiday, aside from the Boards being closed, if the last day to perform any act falls on a holiday, such as today, the deadline is extended by one day to tomorrow, Tuesday.
Finally, dear readers, if you happen to be attending the Workers’ Compensation & Risk Conference in Dana Point this week, I hope you will stop by and say hello. Your humble blogger will be presenting on Wednesday and will be around for the conference to boot. Hope to see you there!
Well, dear readers, looks like we made it another week! It’s Friday, and for those of us who have not started early, another three-day weekend is up on.
So the big news swirling around the proverbial coolers of the practitioners this week is the announcement that we will be returning to in-person trials as of October 1, 2021. No explanation was offered in the DWC Newsline (2021-87) as to the reason for this change, but the chatter among the grunts, that is, the attorneys that will actually be appearing, is one of concern.
As much as your humble blogger wishes that COVID would go the way of the murder hornets, we are still in a pandemic. The Delta strain is not being controlled by vaccination as both vaccinated and unvaccinated people appear to be spreading it. Several countries, including India, Mexico, and Japan, have taken other measures to control the surge in cases, but the United States is not among them. In other words, COVID19 remains a serious health risk for the population.
As a practitioner, I have to say, I would prefer if we remained on the virtual/video trial calendar, at least for now. Appearing at the San Francisco WCAB, for example, will require the use of mass transit for at least some of the attendees – employees in the building, parties to hearings, and non-party witnesses are not all going to fit into the very limited parking available. Witnesses and even parties would be reasonably reluctant to suffer such exposure, especially as we head into the winter season.
Do you remember prop 22? Ever since Sacramento passed AB-5, seeking to severely curtail the ability of businesses to retain independent contractors, every industry has tried desperately to carve out an exception to AB-5’s scope. Well, UBER, LYFT, and the rest of California’s gig economy sought to carve out its own exception with Proposition 22.
So, what should we do? Well what we SHOULD do is spend time reflecting on the true mysteries of life: what was in that brief case in Pulp Fiction? Did Han shoot first? (spoiler alert: yes he did, and your humble blogger cares not a fig for what Mr. Lucas has to say).
But, as we rarely do what we really should, let’s take a hypothetical. What if an UBER driver is involved in an MVA tomorrow… what happens? Workers’ comp or no?
Well, UBER would likely issue a denial to any workers’ compensation claim, maintaining that the driver is not an employee. Meanwhile, an application would likely be filed on the theory that between AB-5 and the recent ruling regarding Proposition 22, the UBER driver is an employee. UBER would likely continue its denial while the appeal was pending. On and on it goes.
Your humble blogger would expect the filing of applications with all eyes on the results of any appeals regarding the validity of Proposition 22. After all, if an application is NOT filed timely, even while the validity of the application is up in the air, the statute of limitations would likely bar further proceedings.
Good morning dear readers! It’s been a while, hasn’t it? Your humble blogger has certainly missed you, from those rare emails expressing agreement with my crackpot ideas to the angry messages about the cruel disenfranchisement of the various lien claimants and applicant attorneys and their dreams and aspirations of owning third and fourth vacation homes.
Well, since I’m back, I thought I’d give everyone a heads up about the big doings going on this morning. At 10:00 a.m. the DWC will be holding a public hearing over ZOOM about proposed updates to copy-service regulations. If you haven’t had a chance to review the proposed changes, you may want to take an adult goosea gander over here.
Among the highlights, section 9980 would now include a “date of service” definition, which would be the date the services were requested, which should add a step in the analysis for any statute of limitations defenses. In addition to some other price changes, flat fee prices for one set of records go up from $180 to $225 for one set of records.
It’s Wednesday, dear readers! Your humble blogger is here and at your service, as always.
Many a reader might recall a blog post back from 2018 about Mr. Sam Solakyan, who was accused of a fairly large workers’ compensation fraud scheme involving several imaging facilities. Well, the Department of Justice has announced that Mr. Solakyan has been found guilty of conspiracy to commit honest services mail fraud and health care fraud, and 11 counts of honest services mail fraud.
Mr. Solakyan was accused of paying bribes and conducting cross-referrals for doctors who referred patients to his various facilities in California for imaging. Sentencing is set for October 4, 2021, but, of course, everyone should certainly check their stack of liens and unpaid imaging bills.
Bills from San Diego MRI Institute (showing about 200 liens on EAMS) and Vital Imaging, Inc. (showing about 13 liens on EAMS) should be looked at closely.
Remember, dear readers, to take a good look at Labor Code section 139.21 about exploring a dismissal of the lien or a basis to reject a bill, particularly in light of this conviction.
Your humble blogger is here again, pestering you as always with the crazy stories that come out of the workers’ compensation world. So, who is up for a 132a claim decision? Your humble blogger has exactly what you’re looking for.
So, what’s the average Labor Code 132a claim like? Well, if you ask a workers’ compensation defense attorney, 99 out of 100 are just nonsensical shakedowns thrown in to squeeze a few extra thousand dollars out of the case. Most of the time, when the case-in-chief is being settled, the 132a is dismissed or “resolved” and everyone walks away with an acceptable level of misery and disgust. After all, a counter-suit for malicious prosecution of a 132a is not out of the question, right?
But once in a rare while, you see a 132a case that goes all the way. Not just to trial, but to the WCAB so that we can all read about it. Such is the case of Sarway v. Walgreens Family of Companies, a recent WCAB panel decision.
Applicant sustained an admitted injury in 2011. In 2015, the case-in-chief was settled by way of compromise and release. Well, in 2016, applicant filed a claim for 132a benefits alleging his employment was terminated shortly after the case was resolved by way of C&R. Well, between the date of injury and the C&R being signed, applicant was convicted of felony sexual assault from 2013 and felony false impersonation from 2007.
In 2013 applicant was arrested and jailed for less than a day, but then made bail and, according to applicant’s testimony, there was no requirement imposed upon him by his employer related to the arrest.
So, what happened? Apparently, about two weeks after the case settled, the employer told applicant to “clean out his locker and desk two weeks after returning to work after settlement of his claims.”
After trial, the WCJ ruled that defendant violated labor code section 132a, and awarded pretty much the maximum that Labor Code section 132a affords as a remedy: $10,000 in penalties, $250 in costs, and lost wages. Labor Code section 132a subsection (3) provides for reinstatement as well, but reinstatement is not listed as a remedy resulting from trial. On reconsideration, the WCAB affirmed the finding, noting that the WCJ’s reasoning of the timing of the termination and the lack of any evidence explaining business need or any other reason for termination of his employment.
Assuming there are no facts that happened but didn’t make it into the record, it looks like applicant may have been fired as soon as his workers’ compensation case was resolved. Normally, a C&R might include a resolution of any actual or potential 132a claims, but would not apply to violations of Labor Code section 132a that had not occurred at the signing of the C&R.
If an employer really wanted to part ways with an injured employee, a resignation letter could usually be obtained as part of a C&R – 132a is hardly triggered by an injured worker. Just because a case is resolved, that doesn’t mean that an employer is now free to retaliate against an employee for having filed the claim to begin with. If there is another reason to terminate the employment, that should probably be documented and presented as evidence for the defense at the 132a claim trial.
Sometimes, employers – and by this I mean not the business as an entity but individuals within the business – not entirely familiar with the workers’ compensation system might take a workers’ compensation claim personally. They might feel that the applicant is lying about the injury, exaggerating symptoms, or possibly are just mad about the increased workers’ compensation premiums. In those cases, without good advice, a rash decision is sometimes made – terminating an employee, or, mistakenly thinking it is “safe” to retaliate after the case is over.
Hopefully, this case will serve as a reminder that the merits of a workers’ compensation claim are addressed at the WCAB, for better or for worse. Labor Code section 132a prohibits taking retaliatory action against an employee even after the case is resolved. And, if there are strong and hostile feelings over the workers’ comp claim, a voluntary resignation may be the best way to address those feelings.
The question that is asked over and over by every Californian, and, of course, every workers’ compensation practitioner, is if we are going back to “normal” and if so, then when? For well over a year now, every hearing has been either over the phone or via LifeSize, and almost every deposition has been over ZOOM or its equivalent.
With vaccinations approaching “herd immunity” in the California, one would have thought that we would be on the road to return to the grand halls of the WCAB, plying our scholarly trade in suits and ties rather than shorts and flip-flops. But, with the Delta variant, perhaps that is not to be. Further, after doing this for over a year, attorneys, judges, and clients have all seen the benefit of a relatively remote system.
For example, defense attorneys no longer have to bill their clients for travel time since the travel from bedroom to kitchen to living room is often waived as a professional courtesy, given how generous defense attorneys are. Further, applicant attorneys never got to bill for travel time to the WCAB, but they can now represent their clients in more than one venue each morning, and use that travel time to prepare their cases and counsel their clients.
The Judges too, I imagine, are benefiting from not having to brave the traffic to and from work, and can spend more of their precious hours adjudicating panel disputes and UR litigation over $27.35 tissue boxes.
The Department of Industrial Relations has signaled some inclination to reopen, given that as of today, parts of the WCAB venues will reopen, including the front counters to answer questions and receive in-person filing. This is, of course, primarily geared at providing more access to the WCAB for unrepresented injured workers.
For now at least, all hearings and trials continue to be conducted over the phone and LifeSize, but your humble blogger is throwing his weight into the camp of wanting things to remain as they are.
You know what, dear readers? Sometimes, your humble blogger is in a situation where he just has to be the bad guy. Well, perhaps this is one of those situations, because one of the pieces of legislation snaking its way through Sacramento is Assembly Bill – 334, which will expand the list of presumptions for certain state and local government employee, namely active lifeguards and Department of Fish and Game and Department of Parks and Recreation employees. Your humble blogger, bad guy that he is, disapproves of the ever-growing list of presumptions that almost always favor the applicant and rarely benefit the employer.
AB – 334 would make skin cancer “developing or manifesting” during the employment of active lifeguards and game wardens presumed to be industrial. It includes the usual presumption language already offered to various other peace officers, including that “skin cancer so developing or manifesting itself in these cases shall not be attributed to any disease existing prior to that development or manifestation.”
All of these presumption laws have a simple function – the shift the cost of these maladies, such as skin cancer in the case of AB334, from the individual to the tax-payer. Without the presumption, the lifeguards and game wardens could still get workers’ compensation for these conditions, but they would have to carry their burden of proving causation. So, even if the skin cancer develops for non-industrial reasons, that cost will be borne by the taxpayers should AB334 become law.
Just one more thing to be aware of, dear readers, as the legislative landscape gets progressively bumpier for employers, public and private alike.
Your humble blogger is back and hopes you have missed him, as he has sorely missed you. But, as is custom amongst refined gentlemen of culture and learning, I have returned to you not empty handed but bearing a wonderful gift. The gift you have been dreaming of since last my blog posts graced your inbox… another blog post.
This one is on Medical Provider Networks and you are going to want to stick around, because it provides some persuasive (sadly, not mandatory) authority regarding the adequacy of MPNs.
So a typical scenario is that applicant’s counsel demands a list of 3 physicians in a particular specialty within 15 miles of applicant’s home ready to take him as a patient. Often enough, this might be a tall order for an MPN to accommodate, and even when it can, the physicians generally available want to review medical records in advance of the first appointment.
Such was the case in Murillo v. Western National Group. Applicant’s counsel sent an e-mail to the Medical Access Assistant (MAA), demanding a list of 3 pain management physicians within 30 miles of applicant’s residence. This, of course, is based on one interpretation of 9767.5(a)(2), which requires at least three physicians within 60 minutes or 30 miles of the employee’s residence or workplace.
The MAA responded shortly thereafter providing a list of.3 physicians in the pain management specialty, but each wanted to review the pertinent medical records before accepting applicant as a patient.
The parties ultimately proceeded to a hearing, with applicant seeking to be let out of the MPN.
The WCJ ultimately ruled for the defendant, and applicant sought reconsideration. On review the WCAB initially acknowledged that the burden of proof is on the applicant in trying to invalidate the MPN. Further the WCAB relied on Labor Code section 4616 for the proposition that the MPN need only provide an adequate number and type of physicians.
Summarizing the relevant regulations and Labor Code sections, the WCAB opinion explained that the MPN must provide at least 3 physicians who would be willing to serve as PTPs within 15 miles or 30 minutes of applicant’s residence or workplace. The only standard for the PTP is to be “competent to treat ‘common injuries experience by injured employees based on the type of occupation or industry in which the employee is engaged, and the geographic area where the employees are employed.”
The applicant can enlist the assistance of the MAA, but must contact the available PTPs to determine willingness to accept his or her particular medical condition. That being said “As long as the MPN has at least three primary treating physicians of any specialty within the 15 mile/30 minute access standard who are available to undertake the role of [PTP], the MPN will have satisfied its obligation to provide medical treatment.” (Emphasis added by your humble blogger).
The WCAB found applicant failed to carry his burden to prove defendant’s MPN was invalid. The WCAB further rejected the claim that the MPN was invalid because the MAA failed to provide an appointment with a PTP within 20 days, as per California Code of Regulations section 9767.5. The duty of the MAA is to provide an appointment, within 20 days, for a specialist based on a referral. Further, since applicant failed to select a PTP, rather than ask for a list of PTPs to choose from, the section further does not apply.
So, happy result as one could expect – the MPN integrity was sustained!
But keep this panel decision in the back of your minds, dear readers, as it certainly provides guidance on defending the MPN against charges of inadequacy.
Happy Friday, dear readers! While it is certainly a rare enough thing for your humble blogger to deliver good news, this is one of those cases. Back in March your humble blogger added his voice to the chorus raising the alarm on Senate Bill 213, which would have raised the cost of healthcare in California even further by creating a presumption of industrial causation for a whole host of conditions visited upon most people, even those that happen to be employed by hospitals.
Almost certainly, there will be further attempts to shift more and more of the burden onto employers with further legislative action in the future. In the meantime though, California’s employers need to continue being vigilant. There is much by way of proposed legislation snaking its way through to becoming law that will increase costs for employers.
Your humble blogger, for example, is watching Senate Bill 335 which would increase pre-denial medical treatment liability to $17,000 and reduce the investigation period in most cases from 90 days to 45 days or even 30 days in some cases.
In any case, dear readers, here’s hoping your Friday is an easy one, your weekend is one of peace, and your next week is better than the one that came before it.
