Hello, dear readers!   So, show of hands: who is blowing off Monday and taking a four-day weekend through the end of Veteran’s day?  Ok, now, show of hands: who actually raised their hands in response to a blog post that can’t see them or acknowledge the hand-raising?

For those, like your overworked and underfed humble blogger, who are powering through Monday and, in all likelihood, Tuesday, I have the following story to relate to you.

A dear and beloved friend of mine obtained one of those rare gems in workers’ compensation – one of those diamonds that are rarely found and always appreciated: the full discharge.  The injured worker can avoid being maimed by surgery or having his life destroyed by doctor-provided narcotics, and can  return to full duty.  Meanwhile, the employer can go back to the work at hand (the business of business is business, after all).

Well, what if the injured worker, or his attorney, isn’t too satisfied with a total discharge?  After all, how much does an applicant’s attorney get from an attorney fee of 15% off of a 0% PD and no need for future medical care?  (Hint: even 100% of 0 is still 0).

So, what’s to be done in this case?  What devious treachery can the employer and/or its insurer expect from the less reputable applicants’ attorneys looking to turn a healthy worker into an unhealthy one?

California Code of Regulations section 9785(b)(3) provides that [i]f the employee disputes a medical determination made by the primary treating physician, including a determination that the employee should be released from care, the dispute shall be resolved under the applicable procedures set forth at Labor Code section 4060, 4061, 4062, 4600.5, 4616.3, or 4616.4.”

Now, what do you think, dear readers, would the applicant’s attorney prefer to have his client on temporary total disability and receiving some sort of “treatment” while awaiting a panel, or would the attorney rather his client go back to work and put this whole injury behind him, possibly decided to abandon any claim?

If you’ve got an MPN set up, the applicant’s attorney is going to turn to Labor Code section 4616.3, and demand an MPN second opinion and possibly a third opinion, until some doctor says that further treatment actually is necessary.  The specific language is in subsection (c): “[i]f an injured employee disputes either the diagnosis or the treatment prescribed by the treating physician, the employee may seek the opinion of another physician in the medical provider network.”

Furthermore, the applicant’s attorney will tell you, Labor Code section 4061 specifically excludes “the employees dispute of the medical provider network treating physician’s diagnosis or treatment recommendations under Sections 4616.3 and 4616.4.”

So, then, dear reader, are you stuck?  Is there nothing you can say to respond to these demand for a second, or possibly third, opinion as to whether further treatment is necessary?  Maybe there is.

Websters defines “diagnosis” as “the process of determining by examination the nature and circumstances of a diseased condition and the decision reached from such an examination.”

Websters also defines “treatment” as “to deal with (a disease, patient, etc.) in order to relieve or cure.”

Do either of those definitions fit with “discharge from care”?   As such, does 4616.3 really apply, given that it provides a second and third opinion as to “the diagnosis or the treatment prescribed.”

In the panel case of Acosta v. Balance Staffing Services, where the same issue arose and the WCAB, concurring with the WCJ, found that a discharge from care without need for further medical care was subject to the panel process, and not the MPN second-opinion process.

Now, here’s another tidbit – you probably like the specialty of the physician that gave you a discharge.  If that’s the case, and if you’re timely with your panel request, the treating physician can’t be changed under regulation 9785(b)(2), so odds are your panel will be in the same specialty as the one that found your injured worker dischargeable.  All good stuff, no?

What do you think, dear readers, is a discharge from care a diagnosis or treatment as contemplated by Labor Code section 4616.3?  Let your wisdom grace the comments below, or send an e-mail to your humble blogger.

Here were are again, dear readers.  Some have come willingly; some don’t know how to make the “unsubscribe” button work on their e-mails (it’s just there for show, dear readers – you’re stuck with me for good!).  Whichever way you made it here, it’s time to wrap up the story of Ivan and his totally permanently disabling paper cut injury.

Labor Code section 3208.3(d) provides that, for a psyche claim to be compensable, an injured worker must have been employed at least 6 months, unless the injury was caused by a “sudden and extraordinary employment condition.  Leaving aside the 3208.3 defenses involved in this case, and boring poor Ivan with the particulars of what is considered sudden and what is considered extraordinary, do these rules still apply?

Is it enough to show that there is a catastrophic event, under Labor Code section 4660.1, regardless of the applicant’s tenure?  Can an injury be catastrophic under section 4660.1, and yet not sudden and extraordinary in the meaning of 3208.3(d)?  And what effect do these moving parts have on the benefits to which an injured worker may be entitled?

The language of 4660.1 suggests that the measurement of the operative words, “catastrophic” refers to the injury, or rather the physical effects of the injury – paralysis, loss of a limb, severe burns, severe head injury.  By contrast, section 3208.3(d) discusses a “sudden an extraordinary employment condition.”  Furthermore, while the failure to establish at least 6 months of employment or a sudden and extraordinary employment condition precludes the recovery of any “compensation,” the failure to establish a catastrophic event merely precludes any increase in impairment due to the psychiatric injury.

Section 4660.1(c)(1) specifically provides that “[n]othing in this section shall limit the ability of an injured employee to obtain treatment for … psychiatric disorder, if any, that [is] a consequence of an industrial injury.”

So, in other words, if all that you’re missing is proof of a catastrophic event, Ivan may be able to secure the right to treatment, but if Ivan’s employment was less than six months in length and the injury wasn’t caused by a sudden and extraordinary employment condition, Ivan may be out of luck completely.

But… where does that leave temporary disability benefits?  TTD isn’t medical treatment, as specifically protected by section 4660.1(c)(1), yet it’s not really an increase in impairment, as excluded by section (c)(2).  A good defense attorney would argue that if the legislature wanted to protect temporary disability benefits, the legislature could have done so as did for medical treatment.  But, at the same time, any applicant’ attorney would likely argue that if the legislature wanted to exclude temporary disability benefits, it could have done so as well, like it excluded any increase for impairment.

At this point, with little to no authority on the subject, it looks like an injured worker could make it past the hurdles of 3208.3 but fail to make it past the test of 4660.1, and thereby become entitled to temporary disability and medical treatment, but not permanent disability.

In Ivan’s case?  It may be a hard sell.  His three-month tenure with the paper factor probably precludes any psyche claim, as being barred by Labor Code section 3208.3.  But, let’s say his attorney manages to persuade a WCJ that 4660.1 renders 3208.3 inoperative, or perhaps that the slip-and-fall and the fluttering piece of paper were sudden and extraordinary, then perhaps he might be able to get medical treatment and temporary disability benefits.

However, aside from applicants’ attorneys’ fantasies, there’s no basis to conclude that 3208.3 is somehow made inoperative by 4660.1.  So make sure there’s another bullet point on your checklist, because, even if a doctor or a medical evaluator finds Ivan permanent and stationary and assigns any level of permanent disability, unless the adjuster on his case thinks that the injury was “catastrophic,” he’s probably going to see a denial notice issued.

What do you think, dear readers?  Should Ivan let the matter go, or just get over his paper cut and get back to work?

Welcome back, folks!  As you may recall from the last post, my beloved cousin Ivan suffered a horribly debilitating injury when a fluttering piece of paper gave him a paper cut, causing a near-paralyzing fear of all paper products, and thereby precluding him from resuming his brilliant career at the paper factory.  Ivan had come to me for some “family discount” legal advice about whether the resulting psyche injury was compensable.

By way of background, dear readers, Senate Bill 863, signed into law by Governor Jerry Brown on September 18, 2012, took effect immediately, except for those sections which set a different activation date.  The newly minted Labor Code section 4660.1 took effect for all injuries sustained on or after January 1, 2013, and subsection (c) provided that there would be no increase in impairment for such psyche injuries unless they were the result of (A) a violent act; or (B) a catastrophic injury.

Labor Code section 4660.1 provides some examples of what might constitute a “catastrophic” event, but doesn’t provide very much by way of a specific test.  So, how are we, poor humble workers’ compensation G[r]eeks supposed to interpret these decrees from up high on Mount Olympus Sacramento?  (If you’ve never been to Sacramento, there’s not much there by way of mountains in the city itself, but I’m hoping you’ll go with me for the analogy).

Well, let’s start with the basics – the code section itself:

Labor Code section 4660.1(c)(B) holds: “[a] catastrophic injury, including, but not limited to, loss of a limb, paralysis, severe burn, or severe head injury.”  Does it have to be as bad as all that?  Well, probably.  After all, doesn’t the list provided by the legislature give us some indication of the significance of the injury necessary to provide a compensable psychiatric injury?

“Catastrophic” is defined by Webster’s Dictionary as “a momentous tragic event ranging from extreme misfortune to utter overthrow or ruin.”  Nor did the term “catastrophic” come into creation with SB-863.

The Workers’ Compensation Appeals Board has used “catastrophic” to describe injuries rendering an applicant a quadriplegic (Brock v. KS Industries, LP (ADJ8407884)), brain injury resulting in a several-month stay in the hospital, with residual left side weakness, decreased memory, fatigue, and seizures (Mulford v. El Toro RV, Inc. (ADJ7763946)), and lack of use of an applicant’s arms and leg and the need of round-the-clock care (Barragan v. American Bridge/Fluor Enterprises (ADJ7714923)).  So, a paper cut might not make the cut (see what I did there?)…

Now, when I explained all this to my dear cousin Ivan, he seemed, oddly enough, to be encouraged.  To him, the case of the vicious paper cut was actually clear-cut (see what I did there again?): it was catastrophic in that he could no longer return to work at the paper factory, and is now so scared of paper that he shivers every time I jot down a note on my legal pad, and jumps every time my printer spits out a fax.

So, naturally, as a matter of cousinly concern, I asked him just how long of a career in the paper industry was struck down by this sad event.

“When all this happened, I had just got done with my 3-month probation period.  Just think of it, such an excellent career cut short in its prime!”

Poor, poor, Ivan.  Come back on Friday for the exciting conclusion of Ivan [and] the Terrible [Paper Cut]…

Your humble blogger is a dedicated defense attorney – although, once in a while, an injured worker seeking representation might darken my doorstep or make my phone ring, these stray cases are usually referred to an applicant’s attorney here or there, and the cases are never taken.  That being said, when my cousin Ivan Ivanivich Grinberg (no, not that Ivan), called to tell me about his recent injury at the copy paper factory, your humble blogger was bound by duty to hear him out, at the very least.

Ivan, was carrying a ream of freshly printed 100% recycled paper to be mailed to a particularly environmentally-minded client of his, when he slipped on a small puddle of water someone had careless left right outside the doorway into the cafeteria/lunch room.  My dear cousin slipped, falling flat on his back (growing up, we lovingly referred to him as “comically clumsy Ivan”).  But, that wasn’t the worst part – during his tumble, he ripped the paper encasing the ream he was carrying to ship to his client, and the entire set of 500 pages went flying.

Everything was fine, except one piece of paper that maliciously fluttered back and forth on its descent, heading right towards Ivan’s face!  He was paralyzed with fear for the 15 seconds it took the seemingly harmless paper to fall, but he knew that this brand of recycled paper was extra thin, and thus it was razor sharp.

In the last of the 15 seconds, during which time his calloused coworkers managed to walk by without any regard for his welfare, he managed to put his hands up to shield his eyes, and suffered a nasty paper cut as a result.

Now, I know what you’re wondering, dear readers, and I was wondering the same thing, so I asked: “Ivan, are you still hurt?”  “Of course I’m hurt! I’m totally and permanently disabled!”  Now, it’s possible that Ivan would read this blog from time to time, so I asked him if he knew what those terms meant – after all, he walked in just fine and seemed to be in no pain.  “My back is fine, and some Neosporin cleared up the paper cut, but now I can’t suffer to look at paper or my anxiety attack comes on.  I can’t sleep, I can’t eat… it’s such a horrible psychiatric injury that I have.  I can’t even go back to work…”

My dear readers, particularly those with larger extended families, understand that one cannot chose one’s blood relations, let alone shrug them off in their hour of need without causing considerable disruptions for all family events from Thanksgiving dinners to weddings for many years to come.  The Bar and Bat Mitzvahs alone would become unbearably awkward!

So I proceeded… “Well, it sounds like you think you’ve got a psyche injury, but unless you were the victim of workplace violence or a catastrophic event, California law doesn’t allow for those anymore.”

Ivan seemed relieved as he asked, “Well, isn’t this injury catastrophic?”

As any good lawyer should always do, I answered in a confident and reassuring manner: “Maybe.”

Once in a while, your humble blogger makes it down to the Board to do some lawyering.  And, at almost every venue, grumblings are regularly heard as to how long it takes to get a hearing, or how quickly the various judges’ calendars fill up.  There’s just not enough Board time to go around!

Most of the time, hearings get set at the WCAB in response to a Declaration of Readiness to Proceed.  Forms for the regular DORs and the DOR to expedited hearing both have a little box to provide the filing party an opportunity to comply with an oft-ignored Board Rule: 10250.

10250, subsection d, provides that “[a]ll declarations of readiness to proceed shall state under penalty of perjury that the moving party has made a genuine, good faith effort to resolve the dispute before filing the declarations of readiness to proceed, and shall state with specificity the same on the declarations of readiness to proceed.

But, as seems to be the case, the field provided to state, with specificity, the good-faith efforts made to resolve the dispute, is used, instead, to articulate in as vague a manner as possible, the issues to be addressed.  So, instead of writing “applicant’s demand for temporary disability benefits, made in correspondence dated June 13, 2014, have prompted no response” some practitioners write “defendant unreasonably denying temporary disability benefits.”

Your humble blogger would like to see rule 10250 enforced more strictly.  If parties are required to properly seek informal resolution, and document the same, prior to requesting Board assistance, we might see a bit less traffic at the Board, and the WCJs’ calendars might be a bit more freed up.  Furthermore, if a party is required to seek resolution of an issue prior to filing a DOR, the other party is properly put on notice of the issue to be addressed before the board.

As my beloved readers probably know, the WCAB has approved the new Board rules to go into effect on January 1, 2015.  And, as it would appear, section 10250 is still in there!  But, why keep the rule in there if it is not going to be enforced?

*grumble* *grumble* *grumble*

So, dear readers, here we are again – another weekend gone in the flash of an eye, and just as you start feeling the symptoms of withdrawal from your workers’ compensation addiction, here it is again for that soothing dose.

Today’s post is about a dual-employment rocket scientists/brain surgeon who, despite a genius and elaborate plan to defraud his employer’s workers’ compensation insurance fund, went down for WC fraud.

Damon Fraticelli was a 27-year-old employee of the Travis Unified School District (no, dear readers, the TUSD did not employ him in the capacity of a rocket scientists/brain surgeon; that part was just your humble blogger’s Monday Morning sarcasm peeking out) and claimed an injury to his right shoulder, preventing him from properly discharging his duties as a janitor.

Of course, the day after he complained of the crippling pain to his doctor, he was video-taped bowling for over 40 minutes, and even scored so well as to have his accomplishments published in the newspaper!

Fraticelli plead guilty to felony fraud charged and got put on 5 years of probation along with an order to pay restitution in the amount of $10,000.

So, dear readers, let that be a lesson for all of us.  If you blatantly and carelessly try to rip off your employer, or trick him into involuntarily sponsoring your blossoming bowling career, you can expect a very stern talking-to.  As far as we know, convict Fraticelli may even be on double secret probation!

Aside from the fact that a fraudster got off ridiculously easy, what can we learn from this story?  Employers should get to know their employees.  Adjusters should get to know the employers for the claims.  If your applicant has a hobby that should be facing the Kaibosh because of his or her injury, make sure the Kaibosh has actually been put on, and if the Kaibosh has not been put on the hobby, the lack of Kaibosh should be on tape.

Good week to you, dear readers, and, of course, good hunting!

“Of course, Mr. Adjuster, I definitely performed those psychology services.  Here are my bills… PSYCH!”

For those not in the know, when your humble blogger was only knee high to the grasshopper, that’s how the kids would make false statements, and then immediately retract them.

Well, enough down memory lane, dear readers, this blog is all about the present (and sometimes the future).

Psychologist Pamlyn Kelly of Grass Valley is under investigation (not convicted of anything, mind you!) for submitting bills to insurance carriers for services never performed.

Does Dr. Pamlyn Kelly’s name appear on any of your bills?  Perhaps you’d like to wait to pay them until after the investigation, or perhaps, the prosecution, is concluded.  Additionally, if you have a claimant who received treatment from Dr. Kelly, it might make sense to send them copies of the itemized bills and ask if all services billed were actually provided.  That is, of course, if you and the applicant have a good relationship…

Have a good weekend, folks!

There are many mysteries in the world, but one of them is not how your humble blogger feels about “developing the record.”  For better or for worse, once discovery is closed, it should stay closed.  However, as is abundantly clear, not everyone has adopted your humble blogger’s stance on this issue.

In the case of Morris v. San Gorgino Hospital, applicant sustained three injuries: a back injury in May of  2004; an assault by a meth-addict-patient in September of 2004; and a CT through November of 2004.

A herd of AMEs was used to render opinions, and applicant ultimately argued that she was permanently and totally disabled based on Labor Code section 4662 (“in all other cases, permanent total disability shall be determined in accordance with the fact.”)

At trial, the WCJ found that applicant was 90% disabled due to the May, September, 2004 assault, 23% permanently disabled because of the cumulative trauma, and that the specific injury in May of 2004 caused only 6% permanent disability.

Before we go any further, it’s important to note that this is a really serious set of injuries: applicant underwent surgery, suffered a stroke as a result of lack of oxygen during the surgery, and, might your humble blogger remind you, was the victim of a devastating assault during which she was beaten brutally by what most kids these days refer to as a “meth-head”.  So, unlike your garden-variety victim of a particularly painful and unpleasant paper-cut, there is some logic behind the claim that Ms. Morris is permanently totally disabled.

The WCAB, in response to applicant’s petition for reconsideration, adopted the WCJ’s reasoning that, in order to rebut the Permanent Disability Rating Schedule and achieve a 100% rating based on any one injury (such as the assault in 2004), one must provide both medical and vocational evidence, which applicant failed to do here.  After all, although the AMEs concluded that applicant was precluded from competing in the labor market, they apportioned some of applicant’s permanent disability to pre-existing or non-industrial factors.

The panel relied on the WCJ’s arguments, but one commissioner dissented, noting that reconsideration should be granted and the matter should be returned to the trial level to develop the record on whether the disability is total “in accordance with the fact.”  However, as the majority was inclined to deny reconsideration, the record was denied development.  Also, practically speaking, what additional development could the record be given other than obtaining a vocational rehabilitation expert, which was already an option for the applicant before discovery closed.

The Court of Appeal denied applicant’s petition for a writ of review.

Happy Monday, dear readers!  I hope you had a wonderful weekend, and for those of you employed in work places that recognized Columbus Day (or, in some cases, “indigenous people day”), may your weekend continue its enjoyment.

As for us, that neither celebrate that great explorer, nor celebrate the great people he explored, today is another day at work.  So, dear readers, what say you – is this a “holiday” in the sense of workers compensation?

Let’s talk about holidays in general.

Whether something is a “holiday” or not is a very serious question, because it can have very serious consequences for your deadlines: if the last day to do something falls on a holiday, you get an extra day.  (California Rules of Court section 1.10(b) “[u]nless otherwise provided by law, if the last day for the performance of any act that is required by these rules to be performed within a specific period of time falls on a Saturday, Sunday, or other legal holiday, the period is extended to and includes the next day that is not a holiday.”)

Meanwhile, if a holiday falls on a Saturday, it is observed on the previous Friday, while if the holiday falls on a Sunday, it is observed on the following Monday (Rule 1.11).

So, what is a “holiday”?  California Government Code section 6700 provides a list of holidays for California, including: New Year’s Day, Martin Luther King Day, Lincoln Day, President’s Day, Cesar Chavez Day, Memorial Day, Independence Day, Labor Day, Columbus Day (like today), Veterans Day, Christmas Day, and Thanksgiving day.    (See also, Guild v. Bank of America (1999) 64 CCC 175, footnote 2, Unpublished).

Are these holidays applicable to the WCAB?   Well, the California Rules of Court seems to refer to the several section which include Rule 1.10, as “Rules Applicable to All Courts,” so presumably the WCAB would also be bound by this logic.

So, dear readers, those of you planning to celebrate “Greg Grinberg is Awesome Day,” (a festival growing in popularity) or any religious or cultural holidays not recognized by section 6700 of the California Government Code, would do well to note that this does not count as a holiday for deadline purposes.  While it may provide reasonable grounds for obtaining a continuance for a court calendar date, it is not going to get you off the hook for failing to timely file papers.

Happy [second Monday in October] Day!

So, there I was – taking the deposition of a healthy-looking young man in California, as, through his interpreter, he recited his social security number.  But, as my file reflected, that social security number belongs to a 78-year-old woman in Texas.  “Hmmm, I thought, well that’s odd…”

Yeah, that happens once in a while in California: an illegal alien will pay to obtain a cloned/stolen/fraudulent social security number and passes the basic test to obtain employment.  Then, during the workers’ compensation claims process, the truth comes out: the noble injured worker, suffering heroically in duty to his or her employer, is a fraud and a liar, and has stolen the identity of someone else.

So, dear readers, consider, if you will, the case of Leticia Serapio, who was arrested and charged with identity theft and felony use of false documents.  This is after she filed three claims against her employer, Nutramed, Inc., alleging injuries in 2012, 2013, and a cumulative trauma lasting through both.   A similar case was reported upon earlier. 

Assuming that she pleads her case out or is convicted, how do you think her credibility will hold up at trial?

Now, this is a case in which law enforcement cooperated with the defendants and prosecuted this case.  However, not all district attorneys have identity theft and fraud cases high on their priority cases.  In any case, the effort should be made to investigate such cases and present the facts to the local prosecutor – if a person is willing to steal another person’s identity and social security number, and lie to get employed, why wouldn’t the same person be willing to lie about the manner or extent of his or her injuries?

As always, WCDefenseCA wishes the prosecutors involved good hunting in the prosecution of this case.