Happy Wednesday, dear readers!

I know we got a lot of aches and pains defending these claims, but it is a cause for celebration when fraud is identified and prosecuted.

A caregiver named Elizabeth Hernandez (from Salinas) has plead guilty to charges related to workers’ compensation fraud.  While collecting TD benefits from her employer’s workers’ compensation carrier, she secured a second job as a caregiver working for the County of Monterey.  She thus was able to collect her full pay from the second employer while collecting benefits for her first job.

The press release advises that the criminal investigation started off with “an investigative lead from the workers’ compensation insurer” which, to someone outside of our little swamp of workers’ compensation, might paint an exciting picture: late one night, as the DA’s investigation unit is sitting at their desks, sleeves rolled up, smoking cigarettes and working through files, an anonymous call comes in: “Hey, check out that Elizabeth Hernandez… she doesn’t ‘give a care’ about workers comp laws! She’s double-dipping!”

And from that point on, the investigators set up surveillance, sting operations, and even decoy infirm patients to catch her in the act…

So, usually, the way it happens is the insurer puts together just about all the evidence, including any sub rosa footage, and presents a case with all the work done to the DA.  The DA then sends the investigator to verify the facts before commencing with prosecution.

What would be educational for us in the defense community is what tipped off the insurer to start investigating the injured worker.  But, unfortunately, it would be equally educational to the potential fraudsters out there who would seek to evade capture in the same way.

As for Ms. Hernandez, she is set to be sentenced on June 27, 2018.

Happy Monday, dear readers!

Those of you not in the bay area might not know about our Thunderstorms, but they sure are a thundering ever since last night.

Thunder and lightning are, over all, rare in these parts, unlike the going and coming rule, which pops up with some regularity in the workers’ comp world.  Monday morning, in particular, is a very dangerous time to be confronted with the going and coming rule, as workers injured over the weekend seeking to pin the bills and the lost time on an employer tend to get “hurt” in the company parking lot on Monday morning.

But, aside from that fine line where the worker goes from “commute” to “working”, we also have the “special mission” doctrine, which tends to put the whole work shift in the crosshairs of the workers comp world.

Such was the case in the matter of Estel v. LA County Metropolitan Transportation Authority, a case that was recently denied review by the Court of Appeal.  (I guess the defense arguments weren’t very… wait for it… appealing!  See what I did there?)

So, what happened in Estel?  Applicant had some pretty serious injuries that were sustained following a motorcycle accident traveling from a week-long training session at his employer’s request.   Applicant was used to the night shift, but the training was held during the day.  Although the hours were different and the duties were going to be different once he got there, the route and commute were to be the same.

So, the WCJ found that the claim was barred by the going and coming rule: applicant was on his way to perform his duties, but the route and commute were the same, so a shift in time and a shift in duties (once he got to his work station) were not sufficient to qualify for the going and coming rule exception.  But the WCAB reversed, finding that applicant’s changed shift coupled with his changed duties (again, once he got to work) were sufficient to qualify for the exception.  The Court of Appeal did not think the Estes case was “special” enough and denied review.

Ok, so if you followed the link on the “special mission” doctrine above, you’ll note the prior blog posts where the special mission exception to the going and coming rule was discussed.

The case and blog post that springs to mind is that of Lantz v. WCAB, which a 2014 Court of Appeal decision.  Therein, the COA ruled that not only is an extra shift (in other words, unusual work hours) not sufficient to qualify for the “special mission” exception to the going and coming rule.  Furthermore, the Court of Appeal specifically rejected the theory that “liberal construction” of the law is to be applied in cases where AOE/COE has already been found and not before.

Here’s where I’m having trouble following the logic in the Estel decision, though.  Applicant had not yet begun his new duties the day of his injury.  He was on his way to the training that, presumably, had not started yet.

Now, it makes perfect sense to raise the element of different job duties when the injured worker is returning from work – the fact that the job duties were different would understandably be more taxing on a worker than his or her routine work and would, understandably, make the commute home more dangerous.

However, why would the same effect apply when he had not yet begun these new job duties that day?  The route is the same, and the different shift, as per the Court of Appeals in Lantz, does not qualify for an exception to the going and coming rule.  The fact that applicant was going to do things that day that he doesn’t usually do, would then be the key element to determining that the injury was compensable.

Since the “special mission” test is a balancing act, it seems that the weight should have been in favor of the defense in this case, at least to your humble blogger.  But, then again, to your humble blogger, the weight should always be in favor of the defense.

Alrighty, dear readers, we made it through another week! Congratulations.  If you make it through this Friday the 13th, you will deserve twice the congratulations!

Often enough, the fun ride we on the defense have to endure in California’s workers’ comp system can lead to filing a psyche claim (thus perpetuating the system…)

Speaking of psyche claims, one of your humble blogger’s beloved readers let me know about a recent panel decision, Kessler v. Gallo Winery.  Applicant stipped out a back injury from 2011, and then filed a timely petition to reopen for new and further disability because his condition has allegedly worsened.

Applicant then filed a CT injury to his back and to the psyche.  Defendant contested the psyche and the matter proceeded with the usual course of litigation.  The psyche AME concluded that 90% of the psychiatric injury was caused by his work (and injuries resulting from work) but that the causation should be split three ways as to the specific, the CT, and a prior injury form 1989.

When the WCJ found a compensable psyche injury, defendant sought reconsideration arguing that since no individual injury could meet the predominant cause standard of Labor Code section 3208.3, there could not be a compensable psyche claim.  After all, since predominant cause is more than 30%, isn’t the defense set here?

The WCAB rejected the argument, reasoning that the crux of the matter lay in comparing causation of permanent disability for apportionment vs. causation of injury.  By the WCAB’s reasoning, because 90% of the psyche injury was industrially caused, the threshold was met and the psyche claim should have been compensable.

Now, I’ll be the first to admit that I don’t know the first thing about workers’ compensation law or the Labor Code, but your humble blogger can’t seem to follow the logic here.

A long, long time ago, your humble blogger posted the case of Monty Lewis v. WCAB, a 2011 panel opinion in which the WCAB concluded that when causation of a psyche claim was 35% caused by one employer and 65% caused by a subsequent employer.  Applicant was defeated in his claim against the first employer because there was no predominant cause and the second employer raised the 6-month rule to bar the psyche claim.  So the applicant gets nothing… NO SOUP FOR YOU!

But Kessler got soup – why?  Clearly, in the Monty Lewis case, the psyche injury was 100% industrial, it was just carved up by different employers.  In Kessler, the 90% industrial causation was carved up by different dates of injury.  What’s the difference?

Well, employers can only be held liable for the injuries sustained during the tenure of their employment of the applicant.

In any case, the authority on this doesn’t seem that iron clad – from what your humble blogger could pick up from a check of the practice manual, the authority that multiple injuries for the same employer can be combined to satisfy the predominant cause requirement is from writ denied and panel decisions – hardly binding authority (the case cited by the WCAB in Kessler was a writ denied opinion as well).

What do you think, dear readers – is this a losing battle, or should we be encouraging taking this up to the Court of Appeal to get a binding opinion on this issue?  Given the Court of Appeals’ track record in rejecting “but this is just the way we do things in workers’ comp” as a guideline for interpreting the law, I am naively optimistic that we would get a positive result.

Have a good weekend!

Happy Wednesday, dear readers!

It looks like we can finally close the book on one of the tiny chapters in Workers’ Comp History (and procedure): There is finally a decision about whether lien claimants who filed a supplemental declaration pursuant to Labor Code section 4903.05(c) prior to 5:00 p.m. on Monday July 3, 2017 (rather than before 5:00 p.m. on Friday, June 30, 2017) are timely.

In an increasingly rare en banc decision, one which features all four of the sitting commissioners, the WCAB has ruled that despite the language of Labor Code section 4903.05, lien claimants actually had until the next business day to file the supplemental declaration.

The background is all available here, which is, of course, a shameless plug for your humble blogger’s prior blog entries.  Basically, 4903.05(c) required lien claimants to file a supplemental declaration before 5:00 p.m. on July 1, 2017.  In a classic example of the deep thinking and review often afforded to legislation, July 1, 2017 is a Saturday, which would normally move the filing deadline to the next business day, or Monday, July 3, 2017.

Some lien claimants did the sensible thing and filed before July 1, 2017, anyway, but a few… “brave” souls decide that they would wait until the last possible minute and filed on July 3, 2017 instead.

Well, the WCAB has finally ruled that, as predicted, if the last day to perform an act falls on a Saturday or a Sunday, the deadline is extended to the next business day.

Happy Monday, dear reader!

Your humble blogger’s head is spinning by all the great stories and doings and developments in our beloved swamp of California Workers’ Compensation – what to talk about first?

Well, with some many choices, why not discuss interpreter fees?

Oh yes, dear readers, the DWC has proposed an interpreter fee schedule to max out all-day fees at $448 (more than 4 hours), or $225 for a half-day (3.5 hours during the day or 3 hours during the evening).  But there’s so much more (or less, depending on what the final write-up will be).

For example, section 9931(c) codifies the decision in Porfirio Contreras v. Gibson Farms which held that the party noticing the deposition would get to schedule and select the interpreter.

The obligation is now on the employer to notify the applicant at least 2 days prior to an interpretation that an interpreter has been scheduled.  Section 9931(g) provides that by phone with voicemail, e-mail, text message.  If the defendant fails to do this, the applicant is free to arrange for an interpreter.

Also, the proposed regulations would limit interpreter fees to an hourly rate for the first hour and 15 minute increments thereafter for assisting a deponent in reviewing a deposition transcript from a prior deposition or preparing for a second deposition.  (Section 9936(a)(3)(B).)

There is a lot more to go through but your humble blogger suspects that a good portion of the language will be changed or cut by the time these becomes regulations.

If you have anything you’d like to add, send an e-mail to DWCForums@dir.ca.gov with your comments or ideas.  The forum closes on April 13, 2018, so you better hurry!

Hello there dear readers!  From the bottom of my cold, unfeeling, defense attorney heart, I wish my beloved readers a happy Passover, a Good Friday, and a bunny-filled Easter in 2018.

May matzo crumbs spare your carpets, may Cadbury eggs spare your teeth, and may these holidays afford you an opportunity to spend time with family and friends away from the daily routine that is California workers’ compensation.

Your humble blogger will dutifully return to his post bright and early Monday morning, with a new blog entry, of course.  Until then, let neither Egyptian Pharaohs nor Roman Centurions dampen our spirits!

Hi there, dear readers – if you are not mad at me for Monday’s post.  I didn’t realize the suggestion that injured workers who lie at deposition or to a physician shouldn’t be trusted with any of their statements would be so controversial.

Anywho, let’s touch a slightly less controversial topic then – IMR!

As this week of good news continues, I offer you the Lexis summary of a recent CWCI study reflecting that IMR has had a 2.2% decline in requests since 2016 (about 3.8k fewer requests).

However, we’re still looking at 91.2% of IMR determinations upholding UR decisions in 2017.  That’s awesome!

So, let’s take a look at some of the realities.  First off, IMR is going to cost defendant about $400 or so, which means that it might be prudent to weigh the cost of the requested treatment against the cost of the IMR.

On the other hand, if you are an applicant attorney and you are requesting IMR, you have to know that there is a 91.2% chance of UR being upheld.  What does that mean? That means that you are not requesting IMR with the realistic expectation of getting UR overturned.  You are requesting IMR to inflict costs on the defendant.

Some applicant attorneys have boasted loudly at the Board that their intent has always been to IMR every UR denial in an effort to overwhelm the system and/or to drive up costs for defendants.

One of the things your humble blogger has observed time and time again is the frustration from some applicant attorneys, WCJs, and even other defense attorneys that defendants are paying so much money for UR and IMR on treatment that, if approved right away, would not cost as much.  What’s more, defendants sometimes even pay their attorneys to appear on these issues.

Well, there’s a good reason for this – if you roll over and provide unnecessary treatment every time it’s cheaper than UR and IMR, the requesting physicians will get wise to this and start requesting small bits of treatment over and over again.

What’s more, just like applicant attorneys have an interest making IMR cost as much as possible to encourage a more generous C&R, defendants have an interest in sending a clear message that lifetime medical treatment may well be awarded, but it will be strictly controlled by UR/IMR (and possibly even the MPN now and again).  The fact that UR is upheld nine times out of ten significantly reduces the value of future medical care, which makes a reasonable C&R that much more feasible.

What about the 2.2% decline in IMR requests?  I wouldn’t put too much weight in it just yet.  Sure, your humble blogger can fantasize about the unhappy applicant attorney deciding he’s not going to waste time with IMR requests anymore because UR always get upheld, but the more likely scenario is that there are going to be random fluctuations here and there, and unless we see a consistent reduction in IMR requests over the next few years.

So, rejoice, dear readers!  IMR seems to continue to serve the defense community well in limiting the obligation to provide medical treatment to truly reasonable and necessary requests.  Now, if we could just get the UR vendors to work on the Friday after Thanksgiving…

Happy Monday, dear readers!

Your humble blogger has been frustrated to the point of shaking his head disapprovingly and judging silently by the relationship between workers’ compensation fraud and actual conviction and restitution.  Being in the trenches, it is an unfortunate every-day occurrence that some level of fraud, whether from injured worker, lien claimant, or, sometimes, even the applicant attorney, is suspected but doesn’t have enough damage done or sufficient evidence documented to interest the local law enforcement officials.

So, in true schadenfreude when a fraud prosecution finally goes through to a conviction.

Such is the case of Michelle Cordero, now of Nocona Texas, who was recently sentenced to 60 days in jail for workers’ compensation fraud.  Applicant filed a claim alleging injury to the shoulder while employed by a hospital, and denied any prior shoulder injuries.  However, investigation revealed that she had told doctors that she really hurt her shoulder moving boxes at home.

She filed a second claim alleging she contracted meningitis from a patient, and denied having been in contact with anyone who had meningitis outside of the hospital, but an investigation revealed that her live-in boyfriend actually had meningitis, and she had concealed this fact from her employer.

Aside from jail time and probation, Ms. Cordero was ordered to pay restitution of $26,089.76 to the TPA.

Your humble blogger, hailing from lands abroad where every silver lining has a cloud, can’t help but temper this victory for justice with some hard facts of life.

Defendants have to front benefits and costs until the fraud is discovered.  It’s an open question if restitution will actually be collected by the employer or if this will remain an unpaid bill and defendant will have to spend more dollars chasing the dollars it should have never lost in the first place.

To get to this point in a fraud case, a defendant must pay for the investigation, provide a slam dunk case, and hope that it gets picked out of the flood of fraud referrals prepared by defendants in general.

What would your humble blogger like to see happen in the interest of Justice for those cases that don’t make the cut for the DA’s limited resources?

There needs to be some consequence for lying or filing false claims other than the possibility of an eventual criminal conviction.  Practically, I would like to see the WCAB give more weight to the impeachment of an injured worker’s credibility when there is documentation of false statements.  I would like to see zero weight given to subjective complaints from a person who has demonstrated that his or her word cannot be relied upon.

When an injured worker has been shown to lie, the Board should adopt a policy to give no weight to the claims or statements made by the injured worker.  Unfortunately, at this time, a lot of these situations are treated as “well, he may have lied about Fact X, but he seemed credible as to Fact Y.”

Am I being too archaic, dear readers?  Applicant attorneys who read this blog (all 3 of you) what do you think?  If your client has been shown to lie to a doctor or at deposition, do you still trust your client? Do you feel comfortable putting him or her on the stand?

And, one last question for you, dear readers, what happens if Pinocchio says “my nose grows now?”  Does it grow?

Happy Monday, dear readers!

Pop quiz – is the day after Thanksgiving, what some marketers have started referring to as “black Friday” a business day? A holiday? A working day?

Yes, no, maybe, sometimes?

Depending on where you look, the day after Thanksgiving is or is not a holiday.  The California Department of Human Resources has it listed as one, as does the California Rules of Court.

The Federal government does not recognize the day after Thanksgiving as a holiday, however.  Government Code section 6700 likewise excludes the day after Thanksgiving from the Holiday list.

I know this seems silly, but it was the key question in the writ denied case of Gomez v. Department of Corrections.

The WCJ ruled that defendant’s UR determination was untimely because the day after Thanksgiving had been counted as a normal business day (rather than defendant’s position that this counted as a holiday).

Citing Labor Code section 4600.4, which defers determinations of holidays to California Civil Code section 7, the WCJ, and then the WCAB, determined that the day after Thanksgiving counted towards the 5-day UR determination requirement and was not a holiday.

Bear in mind, dear readers, that the State of California and all judicial employees, as raised by the defense in this case, get the day off as a holiday – but UR employees are expected to continue working, as per the reasoning drawn from this case.

From your humble blogger’s experience, most UR reports come in on the fifth working day, probably because most UR reports aren’t the only report the UR vendor is working on.  If Thanksgiving Thursday is a holiday, but Thanksgiving Friday is NOT a holiday but will be observed in every workplace as a holiday, that means the UR reviewers must get everything that would be due on that Friday out the door that Wednesday.

Your humble blogger isn’t complaining about this result, mind you – we the brave and free citizens of California need only exercise our will to have Black Friday recognized as a holiday through the legislative process.  But as this is the likely interpretation going forward, perhaps we in the defense community need to alert our beloved UR vendors that they will have to double time their reviews as Turkey Day approaches.

In the meantime, it appears that we should continue to be on the look-out what we might regard as holidays that are not actually state holidays.  For example, I don’t expect to see the WCAB close its doors on the recently passed Pie Day (March 14th) or on Star Wars Day (May the 4th), which is coming up all too fast.

Good luck this week, dear readers!

Alright dear readers – it’s Wednesday, and I have a question for you: how much is your time worth?  More specifically, your commute time.

How much would you pay to have your commute time turned into productive time: more sleep, catching up on more work, or just leisurely pursuit of fun activities before and after starting work?

Your humble blogger has eagerly monitored the progress of self-driving cars, and, recently the DMV has issued regulations for “testing of autonomous vehicles”.  Time being precious, I didn’t go through all the regulations, but the section 227.02(a) has a pretty cool definition of “autonomous mode”: “the status of vehicle operation where technology … performs the dynamic driving task, with or without a natural person actively supervising…”

The DMV is requiring permits and proof of a $5 million insurance policy.  There are a whole bunch of other requirements for autonomous permits, but this is really, really, really cool.

We’re moving closer to having self-driving cars, and the impact on our industry is going to be HUGE.

Have you seen bills for transportation costs for getting injured workers to and from appointments?  Well how much cheaper is it going to be when there is no need to pay for a driver, just an autonomous car to pick up and drop off the injured worker?

How much more productive will everyone be, especially in urban areas, when we can work our files during the drive to work instead of, you know, driving?

How much will the quality of life improve for the disabled, the infirm, the old, the blind when they no longer need to operate a car to get to medical appointments or grocery shopping?

Naturally, your humble blogger is very excited for the potential this progress has for all of us.  Here’s hoping progress continues to move forward.