Happy Wednesday to you, dear readers!  Last week, some of your humble blogger’s acquaintances knocked on his door seeking help.  Not really interested in my lawyerly wares, they instead asked for my intervention on their behalf with a certain deity who controls the storms.  After sacrificing the appropriate number of goats (too few would have been insulting), your humble blogger secured a year’s worth of rain for California.  Unfortunately, the fine print discussed delivery as all on one day, and all in the Bay Area.  In other words, dear readers, stay safe out there – the storm is a-brewin’.

Speaking of storms a-brewin, there’s going to be another one on the issue of Utilization Review.  I know, I know, it’s settled law –Dubon has made clear that if the UR report is timely, that’s the end of it.  Right?  There’s no monster under the bed anymore… is there?

The case your humble blogger brings to your hawk-like attention this fine morning is that of Jovel v. Sisters of the Holy Name.  In that case, applicant filed for an expedited hearing, and eventually argued that defendant’s denial of authorization for treatment requested by the primary treating physician was invalid because the underlying Utilization Review decision suffered from a material defect, to wit, the UR physician was not provided relevant information regarding past treatment.

The WCJ found that the UR report was materially procedurally defective, but, instead, ordered the parties to return to UR to provide a full documentary record to the UR physician and obtain a new decision.

By way of background, dear readers, the WCJ’s decision was issued during that short period between Dubon I and Dubon II.

Ok, so we have what the WCJ has found to be a materially defective UR decision, but, as the WCJ reasoned – even with the assistance of the materials not previously provided to the UR physician, how is the WCJ supposed to decide if this treatment is really necessary or not?  After all, if the Primary Treating Physician’s opinion was sufficient, why would there be a UR?  If a Juris Doctorate makes one  a doctor, why does the restraining order presently in effect against your humble blogger prohibit me from performing any more surgeries?  Good questions, every one.

Applicant petitioned for reconsideration, but defendant did not.  So, while applicant was able to challenge the WCJ’s order to go back to UR, the defendant did not timely seek reconsideration of the finding that UR was defective.  The WCAB reviewed the relevant medical records, and found that the WCJ’s determination that UR was defective holds, but that the supplemental reports that were not provided to UR justify the requested treatment.  The WCAB ordered defendant to authorize treatment.

In other words, dear readers, it may be necessary to seek reconsideration of any finding relating to the validity of UR, unless, of course, the issue is timeliness.

If you don’t hear from me on Friday, dear readers, your humble blogger is probably without power, and his computer is in a box of rice drying out.

Your humble blogger, dear readers, has a little cousin named David.  I won’t bother you with the Grinberg  family roll call, but it’s sufficient to say that through a series of marriages, adoptions, blood vendettas, and one court order, your humble blogger has a young cousin who is soon to finish high school.  David, when he was reaching the end of eight grade, desperately wanted a smart phone.  His parents, not inclined to waste good money on a zombification device for their child, resisted.  But David was unstoppable: every possible chore was done before it was asked for, his grades saw improvement, and he readily gave up his allowance and reasonable gift requests hoping to get the smart phone of his dreams.

Eventually, his parents relented, and, just before high school started, he got the latest iPhone, with a budget for “apps” (kids these days – amirite?) and headphones and a carrying case, etc.  Little David was beyond happy, and when he brought it to his new high school, it was confiscated within a week.  You see, whatever deal he made with his parents didn’t trump the high school’s policy barring cell phones (even smart phones!) in school.  David was devastated – he had worked so hard, given up so much, and now it was all for naught.

At Thanksgiving dinner, David told your humble blogger about how unfair it was, and I agreed – even after all these years, the phone remained confiscated and the hurt was still there.

Now,  you can imagine, dear readers, if poor little David is still complaining about the unjust deprivation of the fruit of his labors, how is the defense community going to feel when it’s crown jewel of SB-863, IMR, has been once more placed in jeopardy of life and limb by the Courts!

In case you hadn’t heard, on December 3, 2014, the 1st District of the California Court of Appeal issued an Order to Show Cause – the Stevens matter, which your humble blogger humbly blogged about previously, is going to be reviewed by the Court of Appeal, which does have the power (but, hopefully, not the inclination) to overturn the IMR procedures on constitutional grounds.

The frustrating thing about this is, as many have predicted, while the gains made by the applicants, their attorneys, and the service providers/lien claimants in the workers’ compensation community are likely to stay, the bargained-for benefits of the defense community are quiet likely to be eroded by subsequent litigation and legislation.

IMR is one such gain, and this case may result in the loss of a major gain made by defendants.  The Court of Appeal, empowered to overturn the rule on constitutional grounds, could find that IMR’s procedures, or even the lack of WCAB review of the underlying UR decisions, is a deprivation of due process for injured workers.

In all likelihood, we won’t see a final result soon, as any decision by the Court of Appeal will likely be appealed to the Supreme Court.  In any case, it would be a good idea to start planning a new wave of legislative reforms.  Your humble blogger could only suggest that, this time, the self-insured groups be allowed into the negotiating room and that their collective resources and influence contribute to new legislation.  Some things on your humble blogger’s Channukah wish list?  That’s a long list (one for each candle-lit night), and perhaps we’ll have to wait for the first night of Channukah to get to it.

Another week awaits us, dear readers – cowboy (and cowgirl) up!

Hello, dear readers!  Welcome back from your Thanksgiving holiday.  Your humble blogger hopes you had an opportunity to enjoy a pleasant dinner with your family, as your leftist ACLU aunt told you about the fact that Thanksgiving proves the country was always intended as a socialist state, and your significant other’s Tea Party uncle explained that Thanksgiving is actually a demonstration of how capitalism and free market economics saved the failing colonies.

As your humble blogger emerged from his own food coma, he was informed by his disapproving mother that some Thanksgiving meals inject the consumer with 4,500 calories (that’s two days, six hours worth of food, by the way).  My salute to those of you who made it to a local Turkey Trot marathon.

Speaking of taking more for one’s plate than one should, have you had a chance to check any of your Northern California files to see if Chris Chen, M.D., is the QME (or AME)?  Well, it looks like Dr. Chen has run into trouble with the discipline unit, this time for overbilling.

As my readers can see, Dr. Chen was previously placed on QME probation through February 13, 2013, but this time is actually suspended for six months starting on October 15, 214.  If you had any questions you wanted to ask him, or perhaps wanted to take his deposition, you may need to find a new QME.

Dr. Chen was also ordered to pay restitution in the amount of $6,700.52.

A search of the QME database reflects that Dr. Chen’s QME specialty is pain medicine, and your humble blogger is going to guess that makes him more popular among applicant attorneys rather than the defense bar.  Accordingly, defense attorneys and adjusters should take this opportunity to review the bills submitted by Dr. Chen, if he is on your file.

Also, if you were planning to get a deposition going with Dr. Chen, you may actually need to get a replacement panel, given the fact that a QME must make him or herself available for a deposition within 120 days of the party’s request (see section 35.5(f)), and Dr. Chen will be suspended until April 15, 2014.

Your humble blogger’s overindulgence at the Thanksgiving table resulted in an evening of discomfort and a weekend of shame.  Other actions of overindulgence sometimes have consequences which linger a bit longer.

Gear up, dear readers, the week after Thanksgiving is always a hard one.  But fear not, your humble blogger will be here by your side.

Now and then, your humble blogger is denied sleeping the sleep of the just by the thoughts that plague his over-worried and overworked mind.  Sometimes the thing keeping your humble blogger up is a simple thought, like “why do they call grapefruit grapefruit? There’s already a fruit that’s a grape and it’s called grape.”   Other times, though, it is a question more germane to your humble blogger’s life calling, such as “what is that giant blank space in the middle of Labor Code section 5412?”

Go ahead and flip to any copy of any Labor Code, dear readers, even this one online.  In the middle of Labor Code section 5412 is a giant blank space that the Legislators left for no apparent reason.  It reads as follows: “[t]he date of injury in cases of occupational diseases or cumulative injuries is that date upon which the employee first suffered disability therefrom and either knew, … … … … … … …, that such disability was caused by his present or prior employment.”

What’s that, you say, dear readers?  Your copy of the labor code includes the language “or in the exercise of reasonable diligence should have known”?   That’s odd, because there doesn’t seem to be a lot of case law supporting the theory that this section of 5412 exists.

Well, it’s hard to find cases where the WCAB applied that oft-overlooked clause of 5412, but a couple of cases that are citeable authority are actually out there.  (May thanks to Ms. L.L. for pointing these out).

In the case of Alford v. Industrial Acci. Com.a 1946 Supreme Court opinion, it was held that an injured worker’s own, subjective connection of his respiratory symptoms with his work activities, was enough to provide knowledge of industrial causation.

Mr. Alford had, for months, asked his employer to install a ventilator to carry off the excess dust he found himself breathing in at the plaster cast plant where he worked.  He was even coughing up plaster!  At one point, prior to any medical reports confirming industrial causation for his respiratory illness, he went to his employer complaining that continuing this work was detrimental to his health.

The Supreme Court held that his own subjective connection between breathing in the plaster particles and the resulting respiratory symptoms was enough notice to be barred by the statute of limitations.

Another case is that of Nielsen v. WCAB, a 1985 Court of Appeal opinion which held that “[w]ithout more, applicant’s emphatic testimony he thought from the very first day he was off work that his condition was caused by the work assembling and disassembling the bottle racks … would be sufficient to support the determination of  both the WCJ and the Board that he knew or reasonably should have known as of that date that his disability was caused by his employment.”

The Court of Appeal held that if a doctor had told applicant his injuries were not industrially caused, then the requirements of section 5412 would not have been met (probably), but that wasn’t the case in the Nielsen matter.  The Court of Appeal further rejected the writ denied case in International Paper Co., which held that “there can be no ‘legal knowledge’ or knowledge of industrial causation sufficient to start the statute of limitations running where the employee actually believes the disability was industrially caused, but has not obtained a medical opinion verifying that belief.”

In other words, if the injured worker reasonably believes that the injury is industrially caused, and there is no medical opinion to the contrary steering him or her astray, 5412 should be satisfied.  But, what if the injured worker doesn’t subjectively believe it?  Well, perhaps the same logic could apply: what would a reasonable person with the same education and experience of the injured worker have done?

From your humble blogger’s even more humble experience, there appears to be some judicial resistance to the theory that the injured worker knew or should have known of the industrial causation without a medical report.  But, at the very least, it’s worth a try, backed up with a solid brief, of course.

Welcome back from your weekend, dear readers!  The rains are a ‘coming.  The cold is setting in.  Turkey day is almost upon us, which, of course, means that we can expect a flood of “Black Friday” related injuries and Christmas decorations starting November 28.  But, before we look too far ahead, there’s this Monday, and a “Significant Panel Decision” issued by the WCAB.

This one is on the subject Utilization Review, which continues to be somewhat of a clumsy, frequently mutating wolf in the deep dark woods of workers’ compensation.

It makes sense – no? Arguably the most expensive and most valuable benefit available to injured workers is the potentially limitless medical treatment.  The UR-IMR procedure puts a pretty solid clamp-down on this, no?

In the matter of Bodam v. San Bernardino County, the issue of UR timeliness was again explored, as UR timeliness appears to be the only effective challenge to UR nowadays (other than a vigorous applicant’s attorney repeatedly changing treating physicians until the requested treatment is authorized).

Applicant’s primary treating physician requested authorization for a three-level fusion surgery by facsimile (the request was made by facsimile, the procedure was not to be performed over facsimile), and defendant referred the request to Utilization Review that same day.  The UR vendor denied treatment three days later, and defendant mailed the decision five days after that (on the eighth day after the request was made).

So what’s the big deal?  Treatment was timely denied… right?  Not so much.

The WCAB held, in this significant panel decision, that the timelines for communicating the decision are equally mandatory.  The WCAB cited Labor Code section 4610(g)(1) noting that a UR decision “to approve, modify, delay, or deny requests by physicians for authorization prior to … the provision of medical treatment services to employees shall be communicated to the requesting physician within 24 hours of the decision.  Decisions resulting in modification, delay, or denial of all or part of the requested health care service shall be communicated to physicians initially by telephone or facsimile…”

In other words, if UR denies, modifies, or delays a request prior to the treatment being provided, then the decision has to be faxed or called in to the doctor within 24 hours.

Do not go to IMR; do not collect $200; go directly to WCAB Medi-Jail.

The WCAB held that the defendant’s UR process was defective because the UR decision was not communicated to the doctor within 24 hours of reaching a decision, AND because it was not communicated in writing to the injured worker, the applicant’s attorney, and the doctor within 2 business days of the decision being made.

The WCAB then held that the WCJ properly ordered development of the record prior to making a determination as to the merits of the request for authorization.

Your humble blogger is aware that some UR vendors immediately fax and mail out the determination directly to the injured worker, requesting physician, applicant’s attorney, adjuster, and even defense attorney.  Perhaps this is a good practice for all UR vendors to adopt?

Your humble blogger had a brilliant idea recently: why not skip the coffee for a few days?  What could possible go wrong?

Well, I came *THIS* close to filing a workers’ comp claim for the resulting withdrawal symptoms (workers’ comp drives me to drink coffee, among other things, you see).  In the words of Master Yoda: “Path to the dark side, comp is.  Comp leads to exhaustion; exhaustion leads to coffee; coffee withdrawal leads to suffering.” (Thanks for the correction, MC)

So, if your humble blogger suffered so greatly from declining coffee for just a few days, how badly would an injured worker have suffered if deprived of serious pain medication upon which he or she relied for any extended period of time?

Consider, if you will, the matter of McCool v. Monterey Bay.  Applicant was in a car accident way back when in 1983, resulting in several back surgeries, and ultimately a 52% award which included future medical care.

Well, lo and behold: a UR decision elected to deny authorization for various pain medications which applicant had been receiving regularly.  Defendant elected to override UR and provide the pain medication anyway, but three months after the UR denial, applicant requested an expedited hearing out of concern that defendant would one day withdraw its good will.

At the hearing, the WCJ found applicant is entitled to future medical treatment, including the pain medication, until there is a documented change in circumstances, even though defendant continued to provide the medication at the time of the hearing.

Well, defendant sought reconsideration, and the WCAB granted.  Initially, the WCAB held that absent a finding that the UR report was untimely, there’s no basis to review the merits of the UR decision, as per the en banc Dubon holding of the WCAB.  Additionally, as applicant was receiving the sought-after medical treatment, there was nothing for the Board to do, as the commissioners and WCJs are not in the business of issuing advisory opinions to become effective in the event of some possibility in the future.

That being said, the WCAB also pointed out that the UR decision was internally inconsistent, both citing the need to slowly taper off pain medication, and then deciding to make applicant go cold turkey.  Well, in the words of Homer Simpson “going cold turkey isn’t as delicious as it sounds.”

The WCAB cautioned that blind reliance on a UR decision that is internally inconsistent could result to a defendant’s referral to the administrative director for investigation and possible penalties.

So, all in all, a happy ending – applicant gets the treatment she needs!  The defendant gets a victory!  You get a blog post!

Here are some thoughts from your humble blogger:

So, for each UR decision, it’s not only important to review the decision for timeliness, but it appears that there is some threshold the WCAB would like to see met, which in this case was internal consistency.  It would be interesting to note if the same burden is placed upon the defense for multiple UR decisions.  For example, if UR denies surgery because of an injured worker’s weight, but the next UR decision denies lap band surgery because the injured worker is not overweight enough – is that internally inconsistent?

Also, it looks like the applicant took three months to file for an expedited hearing on the matter of medical treatment – shouldn’t there be some time limit on challenging a UR decision for any reason, timeliness or otherwise?  After all, don’t circumstances change, opinions become stale, etc?

As far as your humble blogger is concerned, defendant did the right thing in this case – it’s both prudent and, dare I say it, human.  But, often enough, it’s easy to put away a “denied” UR decision and let the applicant worry about the particulars, such as requesting IMR or challenging timeliness.  This panel opinion serves as a cautionary tale for all of us.

Have you been getting bills from the Silverlake Hills Health Center for “diagnostic” services?  You might want to put that checkbook down for a moment and read this blog post.

A jury recently convicted Lisa Maria Henschel, of the Silverlake Hills Health Center, of 32 felony counts of insurance fraud, finding that she altered bills for services including Pilates, chiropractic care, and acupuncture, to reflect expensive diagnostic codes.  There was apparently some forging of a doctor’s signature involved as well.

Not everyone has an MPN, and some MPNs might potentially have or had Silverlake included, so it might make sense to check the billings on this one.

The business is now apparently closed, and Ms. Henschel might spend some time in jail for her fraudulent actions.  Rest assured, dear readers, there’s plenty more frauds out there!

So, there you are – triumphantly stroking the recent IMR decision which upheld the UR determination that the injured worker is not entitled to fresh shipments of caviar to help with his industrial paper cut.  What a wonderful feeling – justice is done, the system worked, and now the price on caviar will not sky-rocket out of your price range, such as this scene captured at Occupy Wall Street so many years ago…

Well, the injured worker decided to appeal the IMR decision… to his treating physician.  “But Dr. Beluga, I need the caviar to make the boo boo go away, it’s the only thing that works!”  Well, seeing as how Dr. Beluga is a strong believer in the medicinal properties of caviar, he submits another request for authorization, thinking this one will fall through the cracks.

Are you required to process this request again… and again… and again… until between UR and IMR, it would have been cheaper to authorize the treatment?

Well, probably not.

Labor Code section 4610(g)(6) provides that “[a UR] decision to modify, delay, or deny a treatment recommendation shall remain effective for 12 months from the date of the decision without further action by the employer with regard to any further recommendation by the same physician for the same treatment unless the further recommendation is supported by a documented change in the facts material to the basis of the [UR] decision.”

So, Dr. Beluga can only request caviar injections but once a year, unless his second request for authorization is “supported by a documented change in the facts material to the basis of the [UR] decision.”

Now, here’s an interesting question for all y’all: Form 9785.5, the Request for Authorization form, offers options at the top of the form: “New Request” or “Resubmission – Change in Material Fact.”  What happens when the doctor submits a report with his or her RFA discussing the change in material fact, but fails to check the “resubmission” box?  Can the defense ignore the same requested treatment by the same physician?  Your humble blogger doesn’t know, but if faced with this situation will likely argue for the “Resubmission”

In fact, a recent panel opinion (Martha Reyes v. Target) held just that: a defendant is free to ignore the RFA for the same treatment by the same physician which UR recommended be denied less than 12 months before.  And, when in conjunction with Dubon, carriers can effectively budget one UR and one IMR per treatment request per year.

Have a good weekend, dear readers!

Who doesn’t love to pop some popcorn, pop in a DVD, and enjoy an evening of watching allegedly injured workers act like allegedly un-injured workers?  Well, your humble blogger can’t think of a single thing he enjoys more (actually, that’s not true… not even a little bit)

Sub Rosa is always an issue in comp cases where fraud is suspected.  Applicants will sometimes say one thing to a doctor and another to the employers at the jobs they aren’t supposed to have while collecting temporary disability, or engaging in the various other pursuits which one can throw oneself into while collecting the salary of full time job and simultaneously having the obligations of one completely unemployed.  (Joe Applicant: Waiting for this temporary disability check IS a full time job!)

Of course, it is within every applicant’s and applicant’s attorney’s best interest to keep the QME and PTP from viewing any version of the applicant other than the one presented at the relevant evaluation or appointments.  So, when there is some damning sub rosa video available, some applicant attorneys will go to great lengths to get the videos kicked to the curb.

Ponder, if you will, the case of Duong v. Automobile Club of Southern California.  Therein, defendant obtained sub rosa video of applicant while on the street, from the driveway of a mobile park home, and then from the property itself, although all filming was done from the private investigator’s car.  Applicant was also videotaped in an Albertson’s grocery store.

Applicant sought to have the sub rosa video excluded because of the posted “no trespassing” signs.  It appears that Civil Code section 1708.8 was considered (liability for invasion of privacy for entering the land of another person to videotape or photograph a person “engaging in a personal or familial activity”), but upon defendant’s petition for reconsideration of the WCJ’s exclusion of the sub rosa video, the WCAB held that 1708.8 governs civil liability for tort, and not admissibility before the WCAB.

The WCAB also disagreed with the WCJ’s policy considerations of protecting an applicant’s privacy in this case, as there is no right to privacy in a grocery store or in the publicly visible areas of a mobile home park.

So, for the time being at least, it appears that third parties cannot create an investigator-free zone by posting “no trespassing” or “no videotaping” signs.  As you can imagine, your humble blogger is very pleased with the result in this case, because anything that keeps the parties honest is a good thing.

Now, if only we could have use of sub rosa as rebuttal evidence without first disclosing it on a 5-pager, everyone would be very honest indeed.  Sadly, as some of my readers will recall, that’s not the case.  But, for the time being, your humble blogger will take what he can get.

Hello, my dear readers!  Although I’m sure this e-mail will find some lucky few of you on Wednesday rather than today, I still wanted to submit what the kids are calling “a shout out” to honor our veterans on this Veterans Day, 2014.

Thank a vet, buy or her a beer or a coffee, or, if you’re feeling particularly patriotic, check out the good folks at Fisher House, which helps provide housing for veterans’ families while they are visiting them in recovery.

See you back here, bright and early, tomorrow, dear readers!