Happy Monday, dear readers!

EDIT: Thanks to Jennifer for pointing this out!  This is a panel level decision.  Your humble blogger shall wear sackcloth and ashes for a week for neglecting to mention the level of this decision.  If you’re at the Board and you see a gentleman in a bow tie but also wearing sackcloth and ashes, please say hello…

I hope the weekend was kind to you and the week ahead is full of voluntary OTOCs and low-ball C&Rs.

But, in the meantime, I bring you the case of Shemet v. Wayne Perry, one of those cases where the smoke is likely to get in your eyes.

The skinny version of this case is that applicant alleged a CT, which defendant denied.  At a trial held on the single issue of AOE/COE, defendant sought to question applicant about his work in the marijuana industry, particularly his work involving marijuana plants and tending to them.  However, applicant’s criminal attorney instructed him not to answer out of concern for federal criminal charges.

Prior to the trial on AOE/COE, applicant was deposed by defendant and discussed his job duties with the concurrent employment of marijuana growing.  The QME had examined applicant, asked his own questions about his work, and reviewed the deposition transcript.  Apparently, the QME had concluded that there was industrial exposure for a cumulative trauma.

Defendant sought reconsideration of a finding of an industrial injury, arguing that its due process rights were violated when it was not allowed to question applicant at trial about his activities.  The WCJ, in recommend reconsideration be denied, pointed out that defendant did not introduce the deposition transcript into evidence, and failed to make an offer of proof of what questions it intended to ask applicant.  Furthermore, while the specifics of the job duties might be relevant to nature and extent of injury, “[f]or an orthopedic injury only 1% causation is needed to find an injury.”

The WCAB did not offer any help to defendant either, advising that defendant must make some showing of how it was prejudiced by applicant not testifying at trial about the rigors of the marijuana industry.

This case is in stark contrast to the opinion of the Court of Appeal (unpublished) in the Ritzhoff case, where the Court of Appeal ruled that an applicant cannot refuse to testify about the claims in general.

So, let’s just say, hypothetically, defendant is aggrieved because applicant is refusing to repeat on the witness stand what he said at deposition, how is defendant aggrieved?  Well, at the very least, defendants are entitled to due process, which, at the very least itself means the right to notice of the hearing, to be heard, to present witnesses, and to cross-examine any adverse witnesses.

However, one of the central duties of a trial judge is to find facts, including to assess credibility.  When a QME finds an applicant credible, that carries no more weight than a defense attorney finding an applicant less than credible.  The WCJ must determine credibility, and that is not done by reading ink on paper, but observing the witness testify – seeing the witness’s demeanor and presentation and forming a conclusion as to whether this witness is telling the truth or not.  That can’t be done when an applicant invokes 5th amendment privilege.

So, let’s again ask the question – why does it matter?  Because credibility is not compartmentalized – if a person is willing to lie, under oath, about one issue, the rest of his or her testimony (and statements to physicians as well!) becomes unreliable.  Not to imply that the applicant in the Shemet case is not credible, but if the question is how a defendant is harmed by being deprived of the ability to cross-examine a witness at trial, this is how!

If I’m wrong about this, then why do we need trials at all?  Let’s just conduct the entire litigation process by submitting deposition transcripts and interrogatories.  Applicants need not appear and the entire proceedings can be held via e-mail and chat-rooms.  Text messages will be the pleadings of the day: “I am injured. Give me $$$!” “LOL NO UR NOT!”

In the Shemet case, defendant was denied the right to have its day in court, at least in part, because it was denied the right to have a WCJ, the finder of fact, assess the credibility of a party and witness.  At least, that’s your humble blogger’s completely defense-oriented spin on things.

Onward, dear readers, and let no benefits go un-denied!

Happy Monday, dear readers!

Your humble blogger appeared recently on a lien claim and was presented with the following argument, which I’m sure many of you have encountered as well:

“Uhh… this isn’t IMR territory… this is, umm… coding dispute! Yeah, that’s the ticket, it’s a coding dispute!”

Suddenly, your humble blogger was reliving his childhood as he told his disappointed parents “I don’t want to be a coder! I want to go to law school and deny workers’ comp benefits!”

“Uhhh… Humble Blogger, you there?” woke me from my flashback and I got back into the matter at hand.

We ultimately resolved the lien for less than what it would have cost for a (very reasonably priced) attorney to take it to trial.  But it got me to thinking – how much mileage does this argument get?

Labor Code section 4903.05(c)(1) requires lien claimants to state, under penalty of perjury, that their liens are NOT subject to Independent Bill Review (IBR).  That is, if the only dispute between the defendant and the lien claimant is the amount of payment due for the services provided, the issue goes to IBR and NOT to the WCAB.

As per section 4603.6, the defendant reviews the bill and provides an appropriate payment.  The lien claimant then either accepts that as final or requests a re-review.  Then if the re-review does not satisfy the lien claimant, it has 30 days to request IBR.

In theory, this should clear the decks at least a little bit for the WCAB to resolve actual disputes such as those affecting the injured worker’s claims to benefits.

IBR is a whole lot cheaper and more efficient than having a defense attorney appear at the WCAB and then possibly take the matter to trial, so the lien claimants would naturally prefer the more expensive route so they can shake down the defendants for more money.

Well, how do they get around the whole IBR thing then?  Well, the argument goes that the dispute is about anything other than billing, such as whether the procedure get to be coded as a separate item or as part of an already-paid for item.  For example, if billing code XYZ is for a series of up to 3 injections, but the lien claimant billed each injection as its own code XYZ, the first one might be paid but the second and third would be rejected by the defendant.

Well, that’s the argument that was also advanced in the case of Senquiz v. City of Fremont, a panel opinion issued back in November of 2017.

In Senquiz defendant refused to pay for two of the injections performed by lien claimant, and a WCJ found that the matter was NOT subject to IBR because when defendant’s position is that it need pay $0 out of the demanded amount, it is not a billing dispute but rather a dispute over liability for the treatment or whether the treatment was reasonable at all.

The WCJ also opined that because bill review rejected payments based on Medicare’s CCI editing process, which are not expressly adopted by the Labor Code.

The WCAB reversed, however, reasoning “the only issue that must be resolved in order to determine the amount lien claimant is owed under the OMFS is whether the relevant bills used the correct procedure codes.  If the WCAB had jurisdiction to resolve that question, the WCAB would effectively be determining the amount due under the fee schedule.”

The WCAB ruled that the lien was subject to IMR.  Presumably, if applicant failed to timely seek IMR, the lien bills would be “satisfied” by operation of law.

I took a look for similar cases and found Tepfer v. San Diego Gas & Electric, which had a similar ruling.

What do you think, dear readers?  Is a dispute about whether the proper billing codes were used sufficient to escape IBR?  Or should defendants start taking these to trial in the hopes of pursuing subsequent “res judicata” defenses against repeat-player lien claimants?

Shopping.  Some people love it, some people hate it.  There’s the driving and the parking and the lines and the crowds and the returns and the punk kids at the mall with their loud music and their whatchamakalls it and back in my day…  In case you’re wondering, your humble blogger is not a general fan of shopping.  Amazon is a wonderful thing for that reason – I gets what I wants and I don’t have to go to the store to get it!

But we few, we happy few, we band of brothers and sisters of the most sacred order of California Workers’ Compensation, are often enough dragged into a different type of shopping, one not found in any store and one which even Amazon is helpless to make bearable: doctor shopping!

It starts on day 1 – we’re all fighting to secure what will be the most favorable panel.  Applicants are pushing as hard as they can for chiropractors and pain management physicians; defense attorneys are pushing equally hard for orthopedists.  But even after the panel specialty is set, the doctor shopping continues – reasons are found to seek replacement panels, objections are made as soon as a report is late, even if by a day.  Unfortunately, it doesn’t take long for a doctor to be painted as either an applicant doctor or a defense doctor, and the expectation of bias is already there.

In the recent case of Vasques v. Liberty Mutual, a WCAB panel concurred with the WCJ that applicant was not entitled to a replacement panel when the PQME could not schedule a deposition within 120 days of the initial request.

About 8 weeks after receiving a supplemental report from the PQME, applicant’s attorney called to set a deposition, but the first available appointment was 133 days or so out.  California Code of Regulations section 35.5(f) provides that a QME must make him or herself available for deposition within 120 days of the notice of deposition.

http://gph.is/1Bwperw

Applicant sought a replacement panel on the basis that the QME was not available within 120 days of the initial request.

The WCJ rejected the request for a new panel.  The 13 days of delay for the deposition did not cause prejudice, as per the WCJ, and, after all, applicant did wait 8 weeks from service of the report before requesting a deposition.  Additionally, the WCJ cited Corrado v. Aquafine Corporation, a 2016 panel decision, for the proposition that ordering a replacement panel for a late supplemental report was, at least somewhat, in the discretion of the Judge.  Applying that by analogy to a late deposition, the WCJ submitted that it was not an abuse of discretion to not order a new panel under these facts.

Looking at this from the outside, based only on the facts that are available from the panel opinion, doesn’t this seem like a pretty clear “no, you don’t get a new panel?”

Now, take the scenario a bit and change it.  The attorney asks for a deposition date and gets one, but prior to the deposition, the doctor cancels it because of [insert any reason].  Does the doctor now get 120 days from the cancellation, or does the QME have to fit the parties into the 120 day slot?  How much leeway is the QME supposed to get?

The other thing to bear in mind is the timing.  Let’s say the AA is complaining about the 13 day delay after already waiting for 120 days.  Well, the time it takes to get a replacement panel will probably be 30-60 days, and that’s assuming there is no necessity to have a hearing about the issue first.  Well, if the panel issues in 30 days, there’s also a two-week strike process, and then 60 – 90 days to set the exam, let alone the 30 days to get the report.  That’s also assuming that the first replacement panel issued will not be defective…

What do you think, dear readers?  If the fight to get a replacement QME is longer than the extra wait for a  deposition, is this just doctor-shopping?  Or should we go through the procedures anyway?

What day is it, dear readers?  Why, it’s…

Your humble blogger previously wrote a bit about exo-skeletons: those robots you practically wear on the outside of your body that help take the load off for heavy or repetitive tasks.

Well, now I’m going to write about it again.  Why? Because these things are nothing short of miraculous.

Esko Bionics is bringing its exoskeletons to Ford’s Michigan factory workers.  A lot of the injuries we see now, especially the cumulative trauma claims, might take their place on the shelf of history next to the dinosaurs.  Why?

The physical strain on the human body done by much of this work, such as having to hold up heavy tools for 2-3 hour stretches at a time, could be transferred to the exoskeletons.

According to the video below, the exoskeleton provides 5-15 pounds of lifting assistance per arm for chest level lifting and above.

How will this apply in workers’ comp?

If a treating physician provides work restrictions of limiting shoulder-and-above work to 15 pounds or lighter, does wearing the vest increase those restrictions to 30 pounds?

If a QME opines about industrial causation to a cumulative trauma, but has not considered how such an exoskeleton works or what impact it has in applicant’s usual and customary duties, can the QME opinion still be considered substantial medial evidence?

Now, think about the flip side of this – if exoskeletons become the norm, or the growing trend, does failure to provide them constitute serious and willful misconduct?  Should such exoskeletons be considered basic safety equipment?

To some extent, the history of labor came with the notion that one will wear out his or her body over a lifetime of work.  It’s only natural – our bodies degrade due to our labors over the span of our lives, and our hope is that we greet retirement with only minimal pains and aches from a lifetime of toil.

What if that’s no longer going to be the case?

Call me charmingly naïve, dashingly handsome, and hopelessly optimistic (come on, do it!) but your humble blogger is expecting good things are coming our way real soon.

Happy Monday, dear readers!

Your humble blogger hopes that Cinco de May took no heavy toll on you and that you are ready for another exciting week in the whimsical world of Workers’ Compensation.

And, what would a week in workers’ compensation be without another workers’ compensation fraud arrest?

A certain gentleman, who shall remain nameless, has been arrested in Daly City on charges of a National Treasure level workers’ compensation and theft crime spree.

This applicant-turned-criminal defendant is alleged to have collected TD benefits after sustaining an injury from one job, while working a second job and claiming injury on that job too.  He then (allegedly) collected TD benefits from TWO jobs (with two different carriers) while working a third job!

There’s also a bit about being accused of using his former employer’s credit card for a bunch of personal purchases, including an engagement ring.

Assuming, just for a second, that this defendant did do all the things of which he is accused, what are some detection methods that could be used to nip these things in the bud?  After all, the two injuries in question happened in 2014 and 2015, respectively.

Well, if you’re the first employer, you have your typical options: sub rosa, social medial check, word of mouth.

If you’re the second employer, you have all that and you can run a claims check – wait, this guy just had an injury last year, and it isn’t resolved yet?  I better contact THAT insurer and find out what’s going on!

In addition to proudly bearing the title of humble blogger, I also occasionally am saddled with the title of broken record, so I’m going to repeat here a frustration that I have voiced many times in the past.

The money involved in conducting the investigation, preparing the prosecution referral, and hoping it will get picked up just doesn’t come back.  Law enforcement organizations don’t have the resources to prosecute every slam dunk case – let alone every case in general.

So the defendants foot the bill of the investigation for a small chance of the case being picked up, prosecuted, and reaching conviction.  In those rare cases, the victory is often a hollow one – the criminal defendant, once convicted, has no money to pay back the benefits (or only has some of the money).

I don’t have the answer, dear readers, but I will respectfully submit the observation that our present system allows for the incentives to commit workers’ comp fraud to remain high, while the risk and extent of consequences remains far too low.

And on that cheerful note, back to our files!

Alright dear readers, your humble blogger is going to give you some advice – and this advice is both free and priceless.

Normally, I would hold off on giving recommendations over a forum like a blog because of the whole potential for malpractice and sometimes it triggers a flood of e-mails telling me to mind my own business.  But, nevertheless, here it goes.

Invest, heavily and consistently, in a calendar.

Yep, that’s it.

Dates matter.  They mattered in high school, the mattered in college, and they matter even more in the whimsical world of workers’ compensation.

In the case of Ghattas v. O’Reilly Auto Parts, applicant’s claim was on delay while defendant conducted its investigation.  During this time, an RFA was submitted, but, prior to the treatment being authorized, the claim was denied.  Well, applicant reasoned that because the RFA was submitted before the denial date, and the $10k treatment cap had not yet been reached, then he was entitled to the treatment (surgery, in this case) because the RFA was not submitted to UR.

By contrast, defendant took the position that there’s no need to burn money on UR because the treatment will be denied regardless, based on the claim denial.

The parties proceeded to trial and the WCJ ordered defendant to provide the treatment.  However, the WCAB reversed on defendant’s petition for reconsideration.

Relying on Labor Code section 5402(c), the WCAB noted that medical treatment is defendant’s obligation “until the date that liability for the claim is accepted or rejected.”  Since liability was rejected, no further treatment is due (absent a finding of AOE/COE).

Calendars, dear readers, calendars.

But could we take this one step further?

California Code of Regulations section 9785(a) provides that a chiropractor cannot be the PTP after an applicant has had 24 chiropractic visits.

What happens to all the RFAs pending on the chiropractor’s 24th visit?  What if the next PTP decides that the Chiropractor’s RFAs are rubbish and has a new treatment plan?  Does defendant have to submit those RFAs to UR?

My thinking is: no.  Only the PTP (or, possibly, a secondary physician) can submit RFAs, and the chiropractor is neither after the 24^th visit.

What about you, readers?  Has your experience been similar?

Happy Wednesday, dear readers!

Your humble blogger is one of those many, many, many, many, many people that don’t like liens.  But, of course, you knew that, as I sometimes call my readers, randomly, and let them know.  So, if you get a phone call at 2:00 a.m. and the caller ID says “humble blogger”, it’s probably just me letting you know how I feel about liens.

That being said, your humble blogger was just tickled pink at the suggestion that a lien can be dismissed for failure to appear if the notice of representation is not properly executed.

Well, as appealing as that idea is to your humble blogger, not everyone has the same level of enthusiasm for liens being dismissed without being paid.

In the matter of Herrera v. International Institute of Los Angeles, a recent panel decision, the WCAB reversed the WCJ’s barring of one lien claimant from participating in the lien trial at a lien conference.  The original lien did not list an attorney or lien representative, but was signed by a person who did not list the title or position with the lien claimant.  Subsequently, a lien representative filed a notice of representation with the WCAB asserting it represented the lien claimant.

However, the language and filed documents at the time of the lien conference was confusing, to say the least.  One party was listed as the representative of the lien claimant for purposes of collection and a different entity for litigation.  Your humble blogger could be reading this wrong, but it does not appear that there was a filed notice of representation signed by the lien claimant allowing the “litigation” representation.

After strongly admonishing the lien claimants and lien reps for wasting the WCAB’s time and resources with poorly drafted notices of representation that do not comply with the applicable regulations, the WCAB decided to afford the lien claimant involved a second bite and the proverbial apple by granting removal and returning the lien to the WCJ for further proceedings.

The lesson here, however, is that the defense should continue to require a notice of representation, signed by both the lien claimant AND the non-attorney lien representative, for all liens.  Absent this, defendants should seek to have discovery closed and impose discovery sanctions for failure to appear.

Why?  After all, the lien claimant here still got its very-much undeserved day in court.

Because the lien representative now has a record with the WCAB.  There can be no further claims of inadvertence or excusable neglect.  The lien rep used its one chance to waste the WCAB’s time.  So, next time, perhaps the discovery sanction can stick?

Onwards towards Friday, dear readers!

Happy Monday, dear readers!

During a C&R walkthrough recently, the WCJ advised “your settlement is a little light, to approve it I think I’ll give the injured worker another $10,000,” to which the clever defense attorney replied “that’s very kind, your honor, I’ll try to get my client to throw in some extra money too.”

And on that note, I will refer my readers to one of my older posts, in which I argued that changes to Labor Code section 4062.3 regarding ex parte communication override the Court of Appeal’s decision in Alvarez.

Well, in at least one case, the WCAB was not persuaded by this crackpot theory, so it looks like Alvarez stands.  Additionally, Lexis has a good discussion of another recent panel decision, Turner v. PT Gaming, in which the WCAB again concluded that some communications with QMEs are so minor that they do not trigger the usual remedies of ex parte communication.

In Turner, applicant sought a replacement QME on the theory that defendant engaged in prohibited ex parte communication when the defense attorney’s advocacy letter leading up to the initial examination requested the QME serve the report on the defense attorney and the adjuster, but did not specifically request a copy be sent to applicant’s counsel.

Applicant’s attorney then claimed that there was no receipt of the QME’s initial report until approximately five months after it was served on defendant.  Applicant’s counsel also filed a formal complaint against the QME with the DWC Medical Unit, and filed a petition to disqualify the QME.

In response, the PQME advised that he was under the impression that this was a unilateral defense QME appointment. (But how could the QME have thought that… unless the applicant attorney didn’t send an advocacy letter).

Applicant argued that the ex parte communication, sending the reports only to the defense, entitled applicant to a new panel.  Applicant further contended that a new panel was warranted because the report was not served on applicant within 30 days of the evaluation.

Both theories were rejected.  The WCJ and a split panel majority of the WCAB reasoned that the communication to which applicant objected was so inconsequential that it would not warrant restarting the panel process.  Furthermore, applicant already had the report when he objected to it being late.

However, one commissioner dissented, reasoning that the defense attorney not only failed to ask the QME to serve both sides, but also failed to serve applicant upon seeing that opposing counsel was not listed on the QME’s proof of service.

Your humble blogger has some thoughts on this, as he does on most things.  It is a source of constant frustration for many in the defense community that applicants often take the position that they have no duty of diligence.  The reasonable thing to do in this situation is to call the QME and ask when the report will be ready.  Had applicant’s counsel called the QME’s office to ask on the status of the report, there would have been no need to wait five months to finally obtain the report.

Furthermore, one objection notably absent from applicant’s arguments is that an advocacy letter was sent to the QME without first being sent to applicant’s attorney.  That’s because it was sent and applicant’s counsel had an opportunity to object to the letter that did not specifically request a copy of the report be sent to both sides.  But there was no such objection, and as defendants can regularly expect to hear when pleading their cases – an objection not made is an objection waived.

In your humble blogger’s opinion, the result was correct in this case.

What do you think?

Happy Monday, dear readers!

Normally, your humble blogger is jumping for joy when a workers’ compensation fraudster is convicted and/or sentenced.  However, when certain public servants, such as law enforcement officers, are exposed as frauds, the feeling of victory quickly turns to ash.

That is the case of former San Diego Sheriff’s Deputy Matthew Tobolsky, who, earlier this month, was sentenced for his fraudulent workers’ compensation claim.  Convict Tobolsky filed two claims against the County of San Diego Sheriff Department, one as a CT and one as a specific.

However, the facts emerged that convict Tobolsky was video-taped at the gym lifting heavy weights while claiming he was too disabled even for light duty.  He was sentenced to three years of probation and 180 days in a work furlough program.

The county is set to seek restitution for over $80,000 in benefits paid.

I know I’ve made this point before on this wonderful web publication, but it warrants making the point again – the damage done is not just in the form of money.  Every conviction which resulted from testimony or documentation by convict Tobolsky can now be challenged and retried.

Imagine if every claim closed in the last six years suddenly sprang open and had to be retried, with a budget and resource pool that’s already at the limit from this year’s cases.

Imagine the impact on every rightful prosecution or arrest when law enforcement officers have yet another stain on their reputation by this conduct of a former deputy.

For that reason, your humble blogger cannot trumpet this conviction as a victory, as it is only a mitigation of a much greater loss.

And on that cheerful note, dear readers – let’s get back to it!

Hello there, dear readers!

As some of you may know, the marijuana users frequently point to April 20^th as a special “marijuana holiday.”  Seeing as today is just that day, your humble blogger thought it only appropriate to provide you with some commentary on what the kids refer to as the “grass” in Workers’ Comp.

Long-time readers of this most humblest of blogs (or people randomly googling “workers’ compensation” and “marijuana”) will recall that the California Health and Safety 11362.785 holds that “nothing in this article shall require a governmental, private, or any other health insurance provider or heath care service plan to be liable for any claim for reimbursement for the medical use of marijuana.”  Bummer man.

But that section hit the books in 2004.  In 2016, however, 57% of California voters approved Proposition 64, which allowed possession and recreational use of marijuana by Californians (although Federal prohibitions would still make the practice illegal).  In other words, when presented with the opportunity, more Californians said “puff, puff, pass” than “just say no!”

Since then (and even before) the workers’ compensation community has held its breath (and to some extent, declined to inhale) wondering what the consequences for our little swamp would be?  Would the hemp farmers and pot heads come take our precious opioid addictions?  Would insurers now have to provide Doritos and Funions to “cure or relieve” from the effects of the use of marijuana to, in turn, cure or relieve from the effects of industrial injuries?

Well, your humble blogger scoured the various case reporting websites and found surprisingly little by way of judicial guidance.  The issue does not appear to be addressed (or appealed) with any regularity.

By contrast, and this is admitted anecdotal evidence, injured workers volunteer at their depositions that they use marijuana, pay for it out of pocket, and do not seek reimbursement.  It remains an open question how much of this is to treat industrial injuries and how much is just blowing smoke, but, if we take injured workers at their word, the use of marijuana seems to be something that is growing steadily.

Perhaps on this day next year we’ll have some more concrete guidance about marijuana use in the workers’ comp world – can a doctor prescribe the use of marijuana as part of modified duties, for example, and have the worker be loaded while driving a school bus?  We’ll see…  In the meantime, have a safe drive home, dear readers.

And also, remember kids, if you want to be cool, don’t smoke marijuana – practice workers’ comp law instead!