Hello, dear readers!  Your humble blogger is back again, and this time asks you to quickly check your files for liens placed by Chiropractors Bahar Gharib-Danesh (Pain Relief Health Centers clinics) and Na Young Eoh, as well as John Terrence, a psychologist.

Federal investigators have alleged that Dr. Gharib-Danesh would recruit patients, assign additional body parts as compensable consequences, and then bill for maximum treatment visits for each injury.  Dr. Eoh was directed to do the same, and also to refer all patience to John Terrence for a psychological evaluation.

According to this article from The Business Journal, Dr. Terrence as alleged to have submitted identical bills for each patient, billing 20.8 hours per day (and one day 291.2 hours – time moves slower in the world of psychology, it appears).

A search of the EAMS lien filing reflects more than 200 case numbers in which John Terrence has filed a lien.  A search for “Bahar Gharib” reflects about $40,000 in liens, and Pain Relief Health Centers likewise reflects more than 200 liens.

The indictments’ estimate is most than $5.6 million in fraudulent billings submitted by Dr. Terrence alone.

So, if you’ve got a lien from any of these folks or their businesses, you may want to hold off on closing that settlement.  If the prosecutors are successful, they might end up sending you the check instead.

In the meantime, your humble blogger wishes prosecutors all the best – scams like the one alleged here should be prosecuted to the fullest extent of the law.  Even if money wrongfully obtained cannot be recovered, the deterrence effect has value of its own against future fraudsters.

Happy Wednesday, dear readers!

It’s no secret that you humble blogger is a big fan of ventures like Uber – the intrepid citizen, eager to shrug off the shackles of punching the clock; the end-customer dropping the middle-man and transacting business on the direct.  And, the simplicity of straight-forward numbers, no deductions or notices or insurance …

The growing business model in California and elsewhere is for an entity to provide a platform for consumers to engage labor directly – the compensation of the labor(er) is determined by his or her hustle, and a small cut goes back to the business that set up the deal.  Everybody wins!

The benefit is the flexibility to the worker and the lack of administrative and overhead pains for the platform – no workers’ comp insurance, for example.  No minimum wage, or overtime, or any of the other stuff employers have to go through in California.  The savings make for lower costs and higher earnings.

Well, the California Labor Commission ruled regarding one driver, finding her Uber’s employee, rather than an independent contractor.  Uber has appealed, but it’s a scary thought.

The ruling cited Borrello & Sons v. DIR, a Supreme Court case which has made an appearance or two on this humblest of blogs, and also applied the analogy of pizza delivery drivers – ones who own the car, pay for gas and insurance, and merely deliver pizzas for the customers of the employer, but are still considered employees.  The opinion also relies on the fact that the Uber driver’s car is the driver’s only investment – the intellectual property (and often the iPhone itself) are provided by Uber.

Of course, in the pizza-delivery situation, the driver is a tiny part of a large service, which is primarily the pizza.  In the Uber model, the “employee” provides almost the entire service, with Uber just providing the platform for the exchange of money and contact information.

Rulings like this, especially if there’s one that is more wide-spread and binding throughout, could pretty much kill this industry and business model.  If rates, investments, loans, etc. are all arranged based on the good-faith agreement between companies like Uber on one hand and the drivers on the other, those foundations all come apart when the agreement is set aside by an outside party (like the Labor Commission).

Seriously folks – there’s enough people who are out of work – do we really want to kill something that lets anyone with a car and an iPhone get a gig on his or her own time?  Do we really need to burden more and more people with so-called protections that they don’t want?

There are about 160k Uber Drivers making on average $19 per hour – and those are hours they set themselves; sometimes they aren’t even hours, but 45 minute stretches in between other obligations.  Now, who wants to see all those earnings opportunities disappear?

It would make sense to your humble blogger to let grown-ups be grown-ups and enter into their own arrangements and contracts.

But, let’s say you don’t care much for this Uber – you hated Nietzche in high school and college; you don’t like the idea of being driven around in anything other than a black limo or a yellow cab; you can’t stand the idea of “apps” and the kids with their music and their Facebooks on the phones…

what about YOUR business?  What about the countless business models that drive (get it?) the businesses in California that rely on arrangements presumed to be rooted in independent contractor status, but are really employee-based?

The reason we have contracts, and the reason we enforce them, is because uncertainty kills business ventures – the more risk, the harder it is to get someone to venture money and time.  When the clear intent of both parties at the start of the relationship is to form an independent contractor arrangement, and NOT an employee-employer relationship, and California allows one party (typically the labor side) to void the contract on a whim, you’re teaching young, impressionable businesses to check under their beds for California.

Welcome back, dear readers!  The fireworks are done, the fires are put out, and our Glorious Republic is still free from domination of Her Majesty’s government – having prevailed both in the war of 1812 and the British Invasion of the 1960s, not to mention watching the hotdog assert global domination over the banger.

So, perhaps we can turn now our attention to the business of workers’ compensation?  I bring to your attention the split panel decision of Dileva v. Northrop Grumman Systems Corp, recently denied review by the Court of Appeal.

The WCJ awarded applicant 96% permanent disability, based on three orthopedic injuries and the resulting psychiatric injury.  The AME for the orthopedic injuries apportioned among the three injuries, but the psyche primary treating physician did not, reasoning that the causation for the impairment from the three orthopedic injuries was inextricably intertwined.   The WCJ then relied on the psyche PTP’s opinions regarding apportionment, and issued one joint award for all three injuries, both for psyche and orthopedic PD.

Defendant argued that the psyche PTP’s opinion failed to properly address apportionment.  Shouldn’t, after all, the psyche apportionment trace the orthopedic apportionment, having been caused by the orthopedic injuries?

The majority reasoned that the burden of proving apportionment is on the defense, and found “it significant that the defendant did not avail itself of the dispute resolution process provided by [LC 4061(b)].”  Of interest to your humble blogger, the majority even cites LC 4061(i): “no issue relating to a dispute over the existence or extent of permanent impairment and limitations resulting from the injury may be the subject of a declaration of readiness to proceed unless there has first been a medical evaluation by a treating physician and by either an [AME or QME].”

The WCAB majority noted that since it was defendant’s DOR that set the matter for trial, and it did not object to or seek a second opinion on the psyche PTP’s opinions on apportionment, defendant was, in your humble blogger’s words, stuck – after all “sometimes you gotta dance with the one that brung you.”

But, look, defendant’s position in this case makes sense – the parties are more bound by the opinions of an AME than a PTP, and the AME here has opined to the causation of permanent disability as to the orthopedic injuries.  If the psyche injury is caused by the orthopedic injuries, what’s good for the proverbial goose, is perfectly good for the proverbial gander.  At the very least, there should have been apportionment as to the orthopedic injuries.

Not so, said the majority: “the percentage to which an applicant’s injury is casually related to his or her employment is not necessarily the same as the percentage to which an applicant’s permanent disability is causally related to his or her injury.”

The dissent cited Labor Code section 4663(c), reasoning that the Labor Code requires a physician’s report to include an apportionment determination, and if the physician can’t include apportionment as part of the report, the physician must give the specific reasons why “the physician could not make a determination.”

Section 4663(c) requires the physician then to refer the case out to another physician that could make an apportionment determination.  As the psyche PTP found that he believes “it would be speculative to attempt to apportion the permanent psychiatric disability between the various injury dates” the proper course of action would have been for the psyche PTP to refer the matter out to another physician to render an apportionment opinion.

Needless to say, your humble blogger is not pleased with the result here.  Parties are regularly and strongly encouraged to use AMEs to expedite resolution of cases and to reduce the burden and backlog faced by QMEs and the medical unit.  Well, here, the parties relied on an orthopedic AME, only to have his opinions rejected in favor of a treating physician.

Furthermore, 4061 looks like it’s being reduced to a waiveable bases to object to a DOR – there was no AME or PQME in psyche, so why was this case allowed to proceed to trial?

The defense position, and what I gather from the panel opinion and dissent, the strategy, was not unreasonable – the medical record consisted of clashing opinions between a treating physician and an AME – the AME’s opinions, unless they’re fresh from the quacking-factory, should have prevailed at trial (not having read any of the actual reports, your humble blogger cannot comment on this last point in this case).  And, after all, you never know what another doctor is going to find – more impairment? More TTD? Perhaps a solid reason why there should be no apportionment at all?  It’s a risk, of course.

So what do you do if you don’t want to do get a panel or an AME but you’d like to knock the opinions of a PTP a bit more in your favor?  After all, with 96% PD on the line… that’s a lot of money.

What about a psyche 4050 exam, with a report by the 4050 psyche doctor to help you cross-examine the PTP at a depo?  Perhaps the PTP would even review and comment on the 4050 report and make it part of the medical record? Just a thought, dear readers.

Hello dear readers!  Your humble blogger sends you his greetings this 4th of July!  Let’s celebrate by visiting our favorite British pubs and ordering the Benedict Arnold (ironically of course), and casually reminding our English friends “you’re not the boss of me!”

Additionally, dear readers, I would take this opportunity to caution all employers out there to be particularly careful with fireworks.  As Gwendelyn Robinowitz, former assistant clerk and sole survivor of the 2008 “Human Fireworks” display put on by the City of Arthur’s Plot, CA, would tell you, fireworks and employees don’t mix – let’s leave it to the professionals and enjoy the show.

Have a safe and happy 4th of July, dear readers – your humble blogger will be faithfully here.

Alright dear readers – here we are, puffing right along to the end of the week.

The 9th Circuit has lifting the injunction against collecting lien activation, meaning that we might soon have a total wipe-out of any liens from before January 1, 2013 that have not yet paid their activation fee (we’ll see how the DWC decides to handle that one).

We also now have the benefits rates for 2016 – TTD will be paid at a maximum of $1,128.43, and a minimum of $169.26, up from $1,103.29 max and $165.49 minimum in 2015.

And, on top of all that, we have yet another instance of cartoon-level insurance fraud misconduct succesfully prosecuted by a district attorney.

The Sacramento District Attorney has announced that (former) California Department of Corrections and Rehabilitation Officer Alan Lemke, has plead no contest to felony workers’ compensation fraud.  Mr. Lemke claimed to have sustained a workers’ compensation injury to his foot, but he then engaged in a 50-mile-hike shortly (3 weeks) after being injured at work.

It appears Mr. Lemke took video of his adventures and activities, which law enforcement found following a search of Mr. Lemke’s home (I wonder, dear readers, what the investigators provided as a good faith reason for thinking incriminating evidence would be found).

Mr. Lemke is to be placed on probation and serve 150 days in the county jail, which will possibly go through the work furlough program.  Restitution is to be paid to SCIF in the amount of at least $33,262.56.

And, there you have it folks – justice is served, and a stern warning is sent to all would-be workers’ comp frauds!  Right? Stop laughing!

Your humble blogger tips his hat to the Sacramento District Attorney for prosecuting this case and protecting the interests of an employer, even if the employer happens to be another state actor.  At the same time, however, your humble blogger submits that these things don’t happen often enough – private-sector employers pay enough into the workers’ comp system and law enforcement that we should be seeing more and more of these cases.  Instead… well… ask your favorite defense attorneys how easy it is to get a prosecution going.  To be fair, this varies from county to county, with some offices more concerned about workers’ comp fraud than others.

In other words, your humble blogger applauds but offers a stern demand of encore!

Hello, dear readers!  Welcome back from your weekend!  Your humble blogger brings you yet another panel decision touching on the topic of… you guessed it! Utilization Review!

The case is that of Samaras v. Deluxe Laboratories (that’s pronounced “lab-or-a-tories”… or at least it should be).  Applicant sustained an admitted injury to his neck and back in 2008, and claimed several additional body parts as well.  In 2009, he was declared permanent and stationary by his then-primary-treating physician, but then selected a new PTP in 2014 (with the guidance of counsel).

When the new PTP requested authorization for treatment, defendant reasoned that there can’t be a change in PTPs after there has been a discharge.  A new PTP can only be designated after a PQME has declared that there is a need for further medical treatment.  The WCJ adopted this reasoning (authority to this effect and commentary on the law on this was discussed previously on this humblest of blogs).

The discharge in the Samaras case was based on the original PTP’s finding that applicant was discharged from “active care.”  However, in reversing the WCJ’s reliance on such a discharge to confine further litigation to the panel process, the WCAB noted a distinction between a total discharge and the Samaras discharge, wherein the P&S report provided for oral anti-inflammatory or non-narcotic analgesic medications.

Based on the WCAB’s reasoning in the Samaras case, the provision of ANY future medical care, even maintenance care – even Tylenol, applicant would be entitled to change primary treating physicians instead of using the panel system.  California Code of Regulations 9785 defines “released from care” as a “determination by the [PTP] that the employee’s condition has reached a permanent and stationary status with no need for continuing or future medical treatment.”   Furthermore, “continuing medical treatment” is defined as “treatment that is reasonably required to cure or relieve the employee from the effects of the injury.”

So, if the doctor determines that applicant needs breath-mints or Advil, applicant can continue to change treating physicians, and so possibly overturn his or her discharge.  And, so, if applicant can change PTPs, then the new PTP can request authorization for treatment, which defendant then must process through Utilization Review.

Hello, dear readers!

Friday is upon us – the weekend looms just around the corner, and, once more, the resources of the WCAB are deployed to address disputes over UR and IMR.

Today I report to you the case of Saunders v. Loma Linda University Medical Group.  Therein, the defendant declined to authorize medical treatment in the form of pool therapy (think swimming, not billiards).  UR timely denied the request for authorization, but the injured worker challenged the IMR decision, arguing that, under Labor Code section 4610.6(d), the IMR decision is invalid.

Section 4610.6(d) provides that IMR must be completed “within 30 days of the receipt of the request for review and supporting documentation…” In the Saunders case, the IMR decision reflects a receipt date of January 29, 2014, and a determination date of June 26, 2014.

The commissioners held that as section 4610.6(d) provides for a 30-day response by the IMR reviewers, and section 9792.10.5(a)(1) provides 15 days for the administrator to provide additional information, resulting in a 45-day-window for IMR to provide a response.  In this case, as IMR’s turn-around time was closer to five months, thereby returning jurisdiction to the WCJ to determine, on the merits of the situation, whether the medical treatment should be allowed.

Citing Dubon II, the commissioners ultimately held that “[a]s with an untimely UR, the issue of timeliness of an IMR determination is a legal dispute that is within the jurisdiction of the WCAB.”  The majority ultimately ordered the matter returned to the WCJ for a determination on whether (1) IMR was timely performed; and (2) if not, whether applicant should be entitled to treatment.

Commissioner Zalewski, however, dissented.  Taking the position that the legislature intended for IMR and UR to be the sole venue for resolution of medical treatment disputes, commissioners Zalewski would have let the IMR decision stand.  Labor Code section 4610.6 provides the grounds upon which an IMR decision can be challenged, and untimeliness is not one of the reasons listed. Furthermore, commissioner Zalewski would have relied on Labor Code section 4610.6(i) “[i]n no event shall a workers’ compensation administrative law judge, the appeals board, or any higher court make a determination of medical necessity contrary to the determination of the independent medical review organization.”

Unsurprisingly, your humble blogger agrees with Commissioner Zalewski’s position: the purpose of SB-863 in this regard was to confine, as much as possible, medical treatment determinations to medical professionals – M.D.s and not J.D.s.

Furthermore, unlike with an untimely UR, a physician (the underlying UR physician) has already reviewed the request for authorization and determined to deny authorization in full or in part.

In a case such as this, if the WCJ or the WCAB decides that IMR is untimely, and the WCAB has jurisdiction to review and decide the issue of medical necessity, it would have to overturn the opinions of a doctor – the exact result the legislature sought to avoid by confining these issues to the UR – IMR process.

Now, your humble blogger gets it – while IMR proverbially fiddles, the injured worker proverbially burns.  But, as discussed above, this is an appeal from a prior timely determination – UR.

Are police officers ever “off duty”?  In the case of Simon v. City of Vacaville, a split panel held “yes.”  Officer Simon, of the Vacaville PD, enjoyed the benefit of an “individual fitness plan” with his employer, which provided workers’ compensation coverage while running, jogging and walking, so long as these activities were performed on a sidewalk, in a city park, on a treadmill, or on an athletic field.

While off duty, applicant was walking with his wife in what he thought was Pena Adobe Park, but then followed a trail up until he slipped and fell, tumbling down 60 feet.  The fall resulted in a shattered right shoulder, four broken ribs, and a punctured lung.  Not exactly a “paper cut.”

The issue of AOE/COE was brought to trial, and one of the main points of contention was whether the trail where the injury occurred was considered a “city park” and thus part of the individual fitness plan.  Applicant also had a back-up argument in play: even if this injury did not occur in a “city park,” as applicant is required to stay physically fit for his job, hiking should be covered as industrial even though there’s no specific coverage under the fitness plan.

Initially, the WCJ relied on the Court of Appeal’s opinion in the case of Ezzy v. WCAB (1983) 48 CCC 611, which held that if the injured worker subjectively believed the activity to be part of his duties and responsibilities, and this belief was reasonable, coverage should be extended.  He held that the injury should be covered as the activity does not fall into a specific exclusion of the plan (the plan banned off-road running, but this was a walk).

However, following defendant’s petition for reconsideration, the WCJ was persuaded by the subsequent authority, namely the case of Young, previously discussed on this blog.  The WCJ recommended that reconsideration be granted.

The split panel did just that – the majority held that Labor Code section 3600(a)(9) specifically excludes “voluntary participation in any off-duty recreational, social, or athletic activity not constituting part of the employee’s work-related duties, except where these activities are a reasonable expectancy of, or are expressly or impliedly required by, the employment.”

In this case, there was a fitness plan that specifically listed various physical activities which the employer considered to be part of the off-duty physical fitness plan.  The commissioners, as the WCJ, found that hiking on a trail would fall into such an exclusion, especially in light of the fact that the employer had outlined the sort of physical activities that would be expected in “off-duty” conditions to maintain physical fitness.

The dissent, however, would have found the injury compensable, assigning considerable weight to the fact that applicant started out his walk in a park, which was covered as part of the fitness plan, but ended up on a trail outside of the city park.  His subjective belief that he was still in the city park should have been controlling, the dissent reasoned.

Most employers are not law enforcement organizations – most are privately owned entities in various industries offering various services.  How can the reasoning in this decision help guide us to minimize exposure for workers’ compensation claims?  Often, the off-duty recreational activity issue rears its ugly head when employees engage in sports with other employees – pick-up basketball games, softball leagues in which various members of the same industry compete, etc.  Usually, the direct supervisor encourages employees to participate without much regard to the effect such participation would have upon workers’ compensation exposure (“It’s entirely voluntary, they don’t HAVE TO play monkey knife fight if they don’t want…”)

Perhaps this case can serve as a reminder for employers to clearly define what sort of off-the-clock activities are allowed or encouraged for employees, and which kind are not.  This may also serve as an opportunity to reminder supervisors and managers to confine encouragement to activities expressly approved by the employer – weight-lifting for security personnel might be good, but sky-diving might bear risk and expense which quickly outpaces its usefulness in serving as a night-club bouncer.  Baseball games are fun, of course, but 10/10 employers would rather keep their experience modification down.

Cheer up, dear readers, the best is still ahead!

Hello dear readers!

Your humble blogger humbly returns to your inbox, and brings you news of what he anticipates will be more confusion and litigation at the Board.

Now, ask any WCJ what his or her favorite litigation topic is, what he or she feels is the very best use of judicial resources, what, ultimately, is the most fundamental issue touching on justice, due process, and the reason that each of them became a WCJ, let alone an attorney in the first place, and they’ll all tell you: panel disputes!

Now, in case the sarcasm didn’t come across in the preceding paragraph, panel disputes are not a favorite topic at the Board, and the frequency with which the subject is adjudicated far outpaces its welcome as a subject.  Never the less, it is of vital importance: the specialty, which often seems an arbitrary determination, often determines the most vital issues: should the PTP’s medical discharge stand, or does the injured worker need more medical treatment? (entitling him or her to a change in PTPs); is there permanent disability and how much? Should any of the permanent impairment be apportioned to non-industrial or other-industrial causes?

Submitted for the review of the community, we have proposed regulations.  Among the proposed changes for unrepresented cases, parties submitting panel requests would have to provide the notice of denial or a letter stating the need for an examination to determine compensability; and, if the requesting party is the claims administrator (and not the injured worker), the request shall include a copy of the written objection indicating the identity of the PTP, the date of the PTP’s report that is the subject of the objection, and a description of the dispute to be resolved.

From the looks of it, unrepresented injured workers could just submit a panel request without any additional information.

Then, folks, it gets interesting – represented cases.

Starting October 1, 2015, any request for an initial panel, for all cases with dates of injury after 1/1/05, “shall be submitted electronically utilizing the [DWC’s] internet site at www.dwc.ca.gov.”

Among the information to be submitted online, the requesting party shall provide all the information on the current form (presumably we’ll have an online form to fill out) and must scan and upload supporting documentation: exam requests or denial letters under 4060; or written objections providing the name of the PTP, date of the report, and subject of the objection.

It appears that a panel will be generated automatically, which the requesting party must then serve on the other side.  “[a]fter issuance of a panel, any subsequent requests on the same claim whether made on the same day or not, is a duplicate request.”  As expected, these changes nullify section 31.1 (panel selection disputes), changing the language to reflect that all disputes are to be resolved by the WCJ.

If these regulations are enacted as proposed, what does that mean for us.

First off, the defense attorneys need to get up to speed on the tech.  Your humble blogger has been an e-filer and has had an (almost) paperless office from the get-go, and highly recommends it as an approach.  This also means that any advantage previously enjoyed by the folks using mailboxes near Oakland will vanish – panel requests from Monterey will no longer have to lose to panel requests submitted from closer to the Medical Unit.

Now, what your humble blogger would suggest, since we’re in the process of bringing panel disputes to the information technology era, is to allow us repeat players to submit our contact information to the Medical Unit directly – if Party A submits a panel request and gets an automatic panel generated, why not immediately e-mail that panel to the other party rather than rely on service by the other side?  Mail doesn’t always make it, and it’s slower than e-mail when it does.

Another feature your humble blogger would like to see the Medical Unit explore is making panels accessible by the repeat players, such as claims administrators and attorneys: a search feature by name and date of birth (and date of injury) should reflect the panels previously issued in that case.

The comment period is open until June 20, 2015, folks – what do you think of the new regs?

Your humble blogger has been told that, with the right drugs in one’s system, you can feel like you don’t need anything.  There are drugs to make you feel like you don’t need sleep.  There are drugs to make you feel like you don’t need food.  There are drugs that make you feel like you don’t need to do anything!  After all, like the old nursery rhyme goes:

“ABCD LSD, little bears are chasing me!”

Apparently, if you’re around marijuana enough, you don’t need to get workers’ compensation insurance, or so thought the proprietors of Green Cactus Collective Medical Marijuana Dispensary.

The two have been changed with multiple counts of felony insurance fraud for failing to carry workers compensation.  Apparently, their security guard was shot several times during a robbery, and they convinced him to lie to his doctors that he was a “volunteer” and not an employee.  While recovering from the gunshot wounds, he was brutally beaten with a gun during ANOTHER robbery, and incurred more injuries (and medical bills!)

As we’ve seen, workers’ compensation insurance can reject Marijuana, marijuana dispensaries cannot reject carrying workers’ compensation insurance for their employees.  Al Capone was nabbed on Tax Evasion.

Kids – put down the pipe, and get workers’ comp insurance instead.

Have a great weekend!