Ok, dear readers, isn’t 2020 great?  We’re just getting started and it’s already Friday and time to put on our casual clothes to do work over the weekend in relaxation…  Well, that’s what your humble blogger is going to be doing at least.

In any case, let me ask you a question – have you ever caught an injured worker red-handed engaged in fraud only to have his or her attorney sarcastically point out to all the fraud that employers supposedly engage in?

Well, I sure have!

In fact, I stumbled upon this story here which covers the no-contest plea of Michael Zendejas who under-reported “roughly $4.9 million” in payroll to his insurer.  This resulted in considerable exposure for the insurer while at the same time depriving almost $1 million in premiums to help cover the risk.

Of course, it’s a lot easier to undercut one’s competitors if one doesn’t need to play by the same rules, right?

So, of course, there’s still fraud here, but the victim is the insurer that has to cover more exposure with fewer resources.

Mr. Zendejas was ordered to pay $944,718 in restitution to the insurer.

This type of fraud hurts everyone, and no less than when workers make up or exaggerate their injuries to get benefits – they raise costs on getting the good and/or services to the consumer, and so they raise costs on the consumer.  

I’m glad such ugliness is being concluded in 2019, and not spilling over into 2020, which has all the promise of being a glorious year.

See you at the office, dear readers!

Hello there my dear readers! Happy new year!

I know it has been a while since you’ve heard from your humble blogger and, believe me, it is one of my biggest heartbreaks to have been away so long.

Now, before you start recounting the rumors you’ve heard, I can assure you (once again) that no, I have not been (justly) incarcerated, my fingers have not been broken for owing money to Lenny “the Finger-Breaker” Marone for unpaid horse racing losses, and (this one is my favorite) I have not become an applicant attorney and scared away all my potential clients by calling them all malingerers (old habits do die hard…)

Rest assured dear readers, your money is safer betting that your humble blogger is participating in the violent overthrow of the rightful government of Arrakis before abandoning the ranks of the intrepid defense attorneys that hold the line of the defense community.

So, as the kids say these days: “new year, new me.”  And what can we expect from 2020?  Well, how about a friendly recap of some of California’s legislation, carefully considered to promote the abundance of wealth that comes from a vibrant economy, which takes effect as of today?

For starters, California minimum wage is now $12.00 per hour ($13 if the employer has more than 25 employees).  If your injured worker earned minimum wage and was on TD, is he or she going to seek a rate increase to reflect the 8.3% increase?

California has once again enacted legislation disapproving of agreements not to seek re-hire, as per AB-749.  While agreements to end the employment relationship will remain in effect, agreements not to seek future employment will not be enforced in California if signed on or after today.

The TTD rate has gone up as well for injuries sustained or after today, with the minimum rate going from $187.71 to $194.91 to and the maximum going from $1,251.38 to $1,299.43.

The big one, of course, is AB-5, that will make it considerably harder to raise and maintain the independent-contractor defense.  It is your humble blogger’s understanding that there are several legal challenges pending so we’ll see if AB-5 survives to see welcome 2021 (one can hope…)

What am I missing, dear readers?

Happy New Year from your humblest of bloggers!

And a happy Friday to my beloved readers.

Just yesterday, the WCAB issued an en banc decision, which means that your regularly scheduled blog post got the bump to bring you the latest in guidance from the WCAB.  And this time I am happy to report it is something defendants can cheer for.

The case is Ashley Colamonico v. Secure Transportation, and the basic idea is that applicant alleged a cumulative trauma injury and, through her attorney, engaged the lien claimant in question to obtain records from various locations.  Defendant responded to various invoices with explanations of review.

After trial, the WCJ ruled that defendant waives objections based on Labor Code section 4620 and 4621 by not raising them as part of its explanation of review, and that further that lien-claimant photocopy service was owed its invoices as well as penalties and interest.

However, the WCAB reversed.  And this is where the fun begins.

Labor Code section 4620 provides in pertinent part that medical-legal expenses include “medical records” for the “purpose of proving or disproving a contested claim.”  Subsection (b), in turn, defines a “contested claim” as when an employee is seeking a benefit arising out of a claimed industrial injury and the employer rejects liability for the benefit, fails to accept liability within a reasonable time, or fails to respond to a demand for payment of benefits.

So, in theory, the applicant should demand a benefit (TD, PD, Medical, etc.) and when the employer refuses to provide it for whatever reason, then the applicant can incur costs such as subpoenaing medical records to help prove his or her claim.  But that’s not what happens on a regular basis.

Instead, an injured worker gets triaged by an applicant attorney’s intake process, and during that triage, every place that has medical records is disclosed by the injured worker to his or her attorneys, and then a subpoena is issued for all the treatment locations.

So picture this, dear readers – an applicant retains counsel to help navigate the system.  The defendant has accepted the claim and is paying temporary disability and providing medical benefits.  Where is the contested claim?  Well, there isn’t one, but when you’re in a volume business odds are you’re not investing too much time in determining if you really need the records or not.

So let’s go back to the case of Colamonico.  The en banc opinion notes that while Labor Code section 4622 allows for reimbursement of medical-legal costs, such as obtaining medical records, compliance with Labor Code section 4620 is a prerequisite.  So the burden falls upon the lien claimant to show a contested claim.

Furthermore, the lien claimant must also show that the costs incurred were reasonably, actually, and necessarily incurred “for the purpose of proving or disproving a contested claim.” 

Further, the WCAB found that failure to respond to a medical-legal bill does NOT waive the arguments afforded defendants in Labor Code sections 4620-4622. 

Ok, so what’s the take-away?

Medical-legal bills pertaining to subpoenas of medical records must be required to face three hurdles. 

First, the lien claimant must demonstrate that when the services were performed, there was a contested claim – what benefit was being sought that was not being provided by the defendant?

Second, the lien claimant must show that the services provided were to address the disputed claim – would subpoenaing records from the employer go towards proving a benefit being demanded by the applicant and refused by the defendant?

Third, the lien claimant must show that the services were reasonably, actually, and necessarily incurred.  Is the fee reasonable?  Is there an argument that, because defendant had subpoenaed and provided the same records to the applicant’s attorney, this second set of records from the same location were not necessary or reasonable?

Well, dear readers, what do you think?  Will this decision come in handy in attacking those pesky liens?  I’m certainly looking forward to having this fly-swatter in my tool bag!

Have a good weekend!

Alright, beloved readers, it’s Monday and it’s Veteran’s day.  What are you doing at work?

Well, although it’s a court holiday, and it’s a federal holiday as well, it’s not recognized by every employer in the land, so often enough veterans are stuck working today.

But, since we’re all here and reading this blog post, I wanted to make a recommendation if you are inclined to open your pockets for a charity.  Your humble blogger’s friend, A.K., a veteran himself, has urged that I direct the attention of my astute and discerning readers to the Gary Sinise Foundation. 

The Gary Sinise Foundation, much like the Fisher House, focuses on families of veterans as well as the veterans themselves.  Recently the Foundation made it into the news by bringing almost 2000 Gold Star Families to Disneyland.

If you’re looking for an organization to donate to this Veteran’s Day, consider the Gary Sinise Foundation.  It’s a small way to move towards tackling the Herculean task of being a nation that takes care of its veterans.

As for your humble blogger, you can count on me polluting your in-box on Wednesday with more of my misguided, ill-informed, and unforgivable musings on plying our beloved trade.

Happy Wednesday, dear readers!

Do any of you have files with Rashad Said’s Advanced Vocational Institute involved?  Well Mr. Said has been charged by the Santa Clara County District Attorney’s office with several counts of workers’ compensation fraud.

As alleged, Mr. Said gave cash payments to workers instead of providing actual training, and also giving kickbacks to counselors directing workers to his business.

If you have any voucher that have been paid to Rashad Said or Rashad Said’s Advanced Vocational Institute, you may consider reaching out to deputy district attorney Julie Sousa to report your own experiences.

Speaking generally, vocational rehabilitation retraining is not a landscape devoid of troubles.  For example, the iLearn institute, which provided vocational rehabilitation training in the San Francisco area, closed some time in 2018 or 2019.  In November of 2018, the Bureau for Private Postsecondary Education issued a citation and fine of $100,000.  It is not known to your humble blogger if the fine was paid or contested.

It seems like a small amount, right?  $6,000 paid out a voucher and the forgotten about.  But it’s not a small amount – these “benefits” pile up.  Imagine if every claim you have is automatically increased in exposure by $6,000 because bad actors have an incentive to litigate entitlement to a voucher.  And that’s not all – if the injured worker collects the supplemental return to work fund of $5,000 from the state’s coffers, those funds have to be replenished by employers and insurers.  The price tag is more than $6k in the long run.

Your humble blogger wishes the best of luck to the Santa Clara District Attorney and urges his beloved readers to remain vigilant when something fishy appears with respect to these vouchers!

Hello my beloved readers!

We’ve just had another of our favorite American cultural events – daylight savings time!

Of course, we all know how DST was invented.  Years ago, a clever and resourceful young gentleman was an hour late to work.   When he was confronted by his supervisor, he responded with “Oh, hadn’t you heard?  I’m actually on time because of this new thing called Daylight Savings Time…”

Anywho, here’s something you may or may not have heard of, but that I’ve been getting several inquiries about: AB-749. 

Signed by Governor Newsom in October of 2019, AB 749 will serve to allow California to interfere even further with the right of employers and employees to contract and reach agreements to resolve their disputes.   How?  Because it would render agreements to never again seek employment with a particular employer void and unenforceable, for any such agreement entered into on or after 1/1/2020.

AB 749 doesn’t specifically reference workers’ compensation cases, but given that it includes any matter involving an “aggrieved person” who files a claim against that aggrieved person’s employer “before an administrative agency,” it’s a safe bet that we’ll see this argument in the workers’ comp world.

Well then, why does this matter at all?  Who cares about an agreement about rehiring?

A C&R typically settles an injured worker’s rights to future medical care, usually for an estimate of the future value of that medical care.  If the employment relationship remains, there isn’t much stopping an injured worker from pocketing the “future medical” money and then very quickly filing a new workers’ compensation claim.

Some employers, as part of a C&R, seek a letter of resignation, so that if an applicant suddenly has a new injury to the same body part, it will be pursued against another insurance policy, and not the settling party.  That resignation letter typically also includes an agreement not to seek re-hire, so that the injured worker cannot wait six months and apply the same tactic once again, forcing the employer to pay for future medical a second time.

Well, AB 749 would put the Kibosh on such agreements.  While it allows the parties to make an agreement to “end a current employment relationship,” the injured worker would be free to seek rehire with the same employer.

So what does AB 749 mean for the defense community?  That means that while we are not dodging raging fires or trying to draft our pleadings with quill and ink and candle light (all part of California’s charms as we enter 2020), defendants must now be particularly careful in crafting settlement documents.

Do you have a plan in place for moving forward?  Are there changes that you need to make to your standard operating procedures?  Or is your humble blogger playing Chicken Little and worried over nothing?

Happy Friday, dear readers!  Guess what?  I’m going to tell you two really cool facts about Sacramento.  Are you ready?

Fact number one – your humble blogger’s favorite place to get breakfast is in Sacramento.  In fact, whenever I’m in Sacramento and the hours of breakfast are unclaimed by an appearance or a meeting or anything else, few things would make me happier than darkening this place’s doorstep.  I can’t name it here of course, because it’s not entirely clear if the owners would welcome or scorn the association with this most humble of defense blogs.  But if I ever hear someone say “hey, Sacramento is 100% bad” I can always retort, with confidence and sincerity, “well, what about that breakfast place?”

Now on to fact number two: In Sacramento is a man named Gavin Newsom who serves as Governor of California.  A few days ago, he signed into law SB-537, which is set to take effect on July 1, 2021.  Aside from requiring every MPN to provide a list of participating physicians, and provide that website to the administrative director, SB-573 would also codify the recent decision in Puni Pa’u, to wit, that Saturdays are not counted towards the working days allowed to make a UR determination. 

But the biggie is the new section 138.8.  Therein, SB-573 directs the administrative director, prior to January 1, 2024, and every year thereafter, publish utilization review data.  For every physician who treated 10 or more injured workers in the year prior to July 1 of the last year, the AD will list the physicians first and last name, specialty, number of injured workers treated, diagnoses codes used, the number of Utilization Review reports denying or modifying his request for treatment, and the number of IMR reversals of UR.

The idea is that for each doctor treating injured workers, we are going to see how frequently a diagnosis is made and how frequently UR and IMR denied the recommended course of treatment.

Reader K.C. had previously advised your humble blogger that in some states, data on the prescription of opioids, along with the frequency and amounts per patient is collected and doctors see where they fall as compared to their colleagues – the idea being to share the over-prescribing doctors to tone it down with the zombie pills.

Perhaps we’ll see the same effect here?  Perhaps SB-573 will help us tone down those doctors who say “if you don’t pay for this wacky treatment, I’ll keep your injured worker on TD for the full 104 weeks.”

What do you think, dear readers?  Is there more to SB-573 that we can anticipate besides data collection?

See you on Monday folks!

Happy Wednesday, dear readers, and to those of you suffering the pangs of hunger on this day of atonement, Gmar Tov!  Well, have no fear, dear readers, for your humble blogger is here to help pass the time.

So let’s talk about psychiatric injuries.  In the 90s, kids would always say things like “I believe you… psych!” which meant they didn’t really believe you. Easy to remember, hurts one’s feelings every time.  As great as this was on the schoolyard, it doesn’t translate so well as an affirmative defense in workers compensation.

Nevertheless, the defense community in California is truly blessed by an affirmative defense that rarely fails: the good faith, non-discriminatory, personnel action defense of Labor Code section 3208.3(h).  The basic idea is that when you’re tallying up the causation of a psyche injury, any part of the psychiatric condition caused by a good-faith, non-discriminatory, personnel action doesn’t get added to the stack of causation, which makes meeting the threshold of compensability a bit harder.

This was explored with a good explanation of the steps of analysis and process in the panel decision of Rodriguez v. County of Riverside.  Therein, the WCAB commissioners kicked a “take nothing” down to further develop the record.  But in so doing, provided some guidance for us lowly practitioners in the trenches in handling psyche claims.

The psyche QME in this case testified to causation of the injury as follows by breaking it down into various events and interactions at work, including “applicant’s refusal of a special project.”

The Panel first cites the case of Rolda v. Pitney Bowes Inc., a 2001 en banc case, explaining that the process should be followed thus:

The QME/AME (1) lists all factors of a psychological injury; (2) assigns a percentage of causation to each factor; (3) lists all factors causing psychological permanent disability; and (4) addresses the percentage of causation that each factor contributes to the permanent disability.

At that point, the WCJ determines whether each factor constituted an actual event of employment, and, if so, whether those factors that were actual events of employment were lawful, nondiscriminatory, good faith personnel actions.

If the remaining factors after filter 1 (actual events of employment) and 2 (not covered by the good faith personnel action defense) still meet the causation threshold of 51% or 35% (in cases of violent acts, etc.) then the claim is compensable (outside of any other affirmative defenses).

The panel further clarified a personnel action as “conduct attributable to management in managing its business including such things as done by one in authority to review, criticize, demote, transfer, or discipline an employee in good faith.”

The panel returned the case to the WCJ to have the medical-legal evaluator and the WCJ confirm to the process outlined above.

One thought your humble blogger has to share with you about this matter and many similar to it.  Words and phrasing matters a lot – and sometimes parties engage in symantics: it wasn’t the good faith personnel action that triggered my psyche injury… it was my reaction to the personnel action that caused it, so the defense doesn’t apply!

Well, don’t we all remember the Court of Appeal decision in County of Sacramento v. WCAB (Michael Brooks)?  This was a 2013 published decision wherein the Court of Appeal held that “The Board’s causation analysis treated Brook’s ‘feelings that he was unsupported by his supervisors’ as a cause of psychiatric injury, as did [the QME].  In reality, however, his feelings were the injury, or symptoms of the injury, not the cause of the injury.”

In short, a reaction to a good faith personnel action is not a “cause” of a psyche injury, but its symptoms.

Anyways, dear readers, just more to think about – I’ll see you here bright and early Friday morning!

I know that not everyone is a fan of Monday mornings, my dear readers, so your humble blogger is happy to take the edge off with a relatively positive result from the WCAB.

One of the great gains made by the defense community as part of SB-863 was the implementation of IMR.  With review of UR determinations taken away from the WC system, and vested instead with Independent Medical Review, we saw UR determinations upheld with significant regularity.  Additionally, the costs involved have shifted to an administrative fee for a review, rather than the previous litigation costs of expedited hearings and appeals.

But, of course, the WCAB can still overrule a UR denial of requested medical treatment when the UR determination is not timely.  This explains why, in the weeks following the WCAB’s en banc determination in the case of Dubon, calendar sales skyrocketed all across California.

If your UR report is timely and otherwise valid, the odds are very high that it will be upheld by IMR.  If your UR report is NOT timely, your defense attorney has to take time out of his or her precious QME panel validity litigation to go to an expedited on whether the UR decision should stand on its merits.

So what’s the problem?  Well, much like the devil, the problem lies in the details.  California Labor Code section 4610 provides that “prospective or concurrent decisions shall be made in a timely fashion … not to exceed five working days from the receipt of a request for authorization for medical treatment…”  So, dear readers, pray tell… what is a working day?  Are Saturdays and Sundays working days?  Or, perhaps working days are any days except state Holidays? Shall we cite Genesis 2:2 in our pleadings?

That was the issue in the case of Puni Pa’u v. Department of Forestry.  Therein, applicant sought reconsideration of a WCJ’s finding that defendant’s UR determination to deny an RFA was timely.  Applicant contended that Saturday was a working day as contemplated by Labor Code section 4610.

The WCAB panel held that “although Saturday is a business day under Civil Code section 9, it is not a working day under Labor Code section 4610, because Labor Code section 4610 does not incorporate the definition of business day found in Civil Code section 9.”

Furthermore, the WCAB held that Code of Civil Procedure section 12a provides, that if the last day to perform any act falls on a Saturday or Sunday, that deadline is extended to the following Monday.

So… great news, right?  Although not binding authority, this certainly closes out another line of argument to snatch a UR determination out of the safety of IMR and into costly litigation.

I know at least 2 of my 12 readers are big Elton John fans, so let me end this blog post by reassuring you, once again, that since Saturdays don’t count towards the UR 5-day deadline…

Another week down, my beloved readers… so how about a fraud blog post?

Have you heard the case of Ndiawar Diop?  He worked as a nurse for the California Institution for Men in Chino, and filed a workers’ comp claim for a needle stick in his finger.  At first, he had reported that he accidentally stuck himself with the needle, then the story evolved to it being an intentional attack by an inmate… maybe… before finally becoming the result of Mr. Diop trying to shield himself from an inmate needle attack aimed at his neck.

Well, the matter proceeded to a criminal investigation and trial, with Mr. Dipo being sentenced to six years six months in county jail, 5 of which would be served on mandatory probation.  He was also ordered to pay $97,164 in restitution. 

What I see happen often enough is a DWC-1 provided to the employer at the time of injury, this one authored by the injured worker, and then a second DWC-1 completed with the “guidance” of the applicant’s attorney after the injured worker retained counsel.  Mechanism of injury is not a given and can be a basis for dispute, sometimes evolving with medical exams.

An evolving mechanism of injury provides excellent grounds for cross examination and impeachment.  When the injured worker’s description of how the injury occurred changed significantly with time, that’s a solid base for a trier of fact to conclude that either applicant can’t be relied upon to tell the truth, or that applicant can’t be relied upon to remember accurately.

In either case, both the medical-legal examiner and the WCJ should be made aware of the issues, so keep an eye on the narrative.

Have a good weekend, dear readers!