Come on, dear readers, how often does your humble blogger, jaded by the world of workers’ compensation and made cynical by so many of those that dwell in it, have good news for you?  Well, today is one of those days.

You remember the countless blog posts your humble blogger diligently prepared on the subject of Dubon can now be forgotten.  The endless analysis done by your diligent attorneys on whether or not a particular UR decision can survive a merit-based challenge can now be stricken from your bill (just kidding).  Why, you might ask?  Has Greg started advocating civil disobedience?  Is this a call to arms?  Is this mad defense attorney seeking to violate 18 U.S. Code § 2385?

Relax, dear readers!  Until there is a return of prohibition or a ban on coffee, your humble blogger will probably not be called for armed revolt.  However, it is with great pleasure that I can report that the Workers’ Compensation Appeals Board, in an en banc decision, has revered most of its prior holdings with respect to the susceptibility of the UR process to non-IMR related challenges.

Basically, the WCAB held that “[a] utilization review (UR) decision is invalid and not subject to independent medical review (IMR) only if it is untimely.”

So, if UR denies the request for authorization in a timely fashion, even if the stated reasoning appears to be “quarter came up tails” the decision goes to IMR.

If the UR decision is not timely, then the injured worker still bears the burden of proving that the requested medical treatment is medically necessary.

Your humble blogger’s favorite quote from the latest Dubon decision?  “The legislature has made it abundantly clear that medical decisions are to be made by medical professionals.  To allow a WCJ to invalidate a UR decision based on any factor other than timeliness and substitute his or her own decision on a treatment request violates the intent of SB 863.”

So, like the bad guys in Lethal Weapon 2, UR can visit the legal world from the medical, make a bunch of applicants upset, and then claim diplomatic immunity, of sorts, subject only to IMR.

Now dear readers, what does that make you think? What does that make you feel?  What does it make you think about what you feel?

Hello, dear readers!  The weekend has drawn to a close, the sun has risen on a Monday, and so begins the dance of workers’ compensation, once again, for all of us to endure and some of us to survive.

That being said, your humble blogger will remind you that this humble little blog did its part in raising the hue and cry of the theory, oh-so-appealing, to applicants’ attorneys everywhere: a defendant can use the MPN or Utilization Review, but not both.

In the case of Stock v. Camarillo State Hospital, applicant sought reconsideration of the WCJ’s determination that defendant’s UR was admissible.  Why would the applicant think the UR report was inadmissible?  As the WCAB summarized applicant’s argument, “[a]pplicant contended that the UR report was not admissible based upon her assertion that the employer may not contest through UR a request for authorization by a treating physician within the employer’s [MPN].”

While treating applicant’s petition as a petition for removal, the WCAB held that “applicant’s required participation in her employer’s MPN dos not prohibit defendant from referring an MPN physician’s request for authorization of medical treatment to UR and [IMR].”  The WCAB further noted that, as the California Supreme Court held in Sandhagen that UR is mandatory for all requests for treatment.  Applicant’s theory would, effectively, let an employer “opt-out” of UR, by choosing the set up an MPN instead.

Now, if you present this to an applicant’s attorney, you will likely get the response “this is just a panel decision.”  Hogwash – this is an indication of how the commissioners will rule on this issue – 3 of 5 sitting commissioners, in fact.

So, dear readers, go on – UR that MPN Doc’s RFAs without fear!

Want to request a panel? There’s an app for that!

The Department of Workers’ Compensation has posted proposed regulations to get the ball rolling on replacing the live-person Medical Unit with an automated system that would take online submissions.

Your humble blogger is all in favor of technology and progress, but let’s identify the problem before we come up with more technologically advanced ways of ignoring it.

The problem with the Medical Unit now is that it can take a month or two to get a panel, and the panel usually results in one or both parties being unhappy.  So, the parties take it to the Board for resolution, and each WCJ gets to smile and think how he or she became a WCJ because of a lifelong passion in resolving panel disputes.

First off, the regulation (see section 31.1(a)) incorporate that memo that has been sent out with every panel for the last few years: bring all disputes to the WCAB and not to the medical unit.  Furthermore, the regulations appear to break filing down into three categories, at least based on section 30(b)(4):

1. Requests submitted on a Saturday, Sunday, or holiday; which will be deemed to have been made on the next business day;
2. Requests made between 5:00 p.m. and 11:59 p.m. (Monday through Friday), which will be deemed to have been made on the next business day;
3. Requests made between 12:00 a.m. and 7:59 a.m. will have been deemed to be made on the same business day.

So, let’s say you’ve made your objection to a PTP report, and, you’re getting ready to make a panel requests.  If you go online on day 15 after 5:00 p.m., you can submit your request and have it deemed filed at 8:00 a.m. on the 16^th day, right?  Fantastic!

The effect here, however, is to eliminate the tactical advantage enjoyed by those law offices located close to the Medical Unit in Oakland, and to favor the technologically savvy.  It also doesn’t seem to resolve the key issues involved: panel specialty disputes.  In fact, the thin amount of guidance offered by the regulations, that favoring the treating physician’s specialty if two panel requests are submitted on the same day, is all stripped away.

It’s easy enough to criticize someone else’s can of worms, but what would your humble blogger do?  Your humble blogger would restore the due process rights of the parties in workers’ compensation proceedings, and allow the parties to retain their own medical experts.  No more panels, no more litigation over how the 16^th day should be calculated, or if the boilerplate objection satisfies the regulatory scheme.

Yes, the defense community would have to pay two QME fees; yes there would be two medical reports to read and possibly two depositions.  But, your humble blogger submits to you, his beloved readership, that we would be better off than with the insane mess we have now.  And, if we had a pre-2004 system, we wouldn’t need an online system.

Have a great weekend folks, and to my Jewish readers – may you have an easy fast, and may you and yours be written in the Book of Life this Yom Kippur!

A good doctor looks for symptoms, and patterns in the symptoms, to diagnose and treat illness, right?  So allow this humblest of Juris doctors to do the same with that self-mutilating patient of ours, California.

California saw a steady stream of business leaving for better climates over the last several years.  It even got so bad that Governor Rick Perry traveled all the way from Texas to encourage the flow of businesses and employers from the Golden State to the Lone Star.  Later, California lost Toyota to Plano, Texas, along with its 2000 jobs.  Now, it looks like Tesla decided to shock California by electing Nevada as the state to house its factory and 6,500 high-tech manufacturing employees.

Why is this happening?  Why does business after business, employer after employer, ranging from low-tech to high, want to leave California?  Oh yeah… take a look at the bill signed by Governor Brown this past Sunday: AB 1897.

AB 1897, provides that when one entity contracts with another entity to provide labor, both entities shall be liable for the labor law violations (and failure to secure workers’ compensation insurance) of the actual employer.

So if Company A provides labor to Company B, but Company A failed to adequately insure for workers’ compensation, or provide proper payment of wages, Company B “shall share with [Company A] all civil legal responsibility and civil liability for all workers supplied by [Company A].”

Fortunately, the law does provide some exemptions, including those entities that hire fewer than 5 workers through a labor provider company, and where there are fewer than twenty-five employers/workers provided for the company.  However, if you’re on the bigger side of business, you are suddenly providing insurance for the failures of any company with which you contract for labor.

Now, one might ask, if you have to investigate, insure, and supervise the company you just hired to handle all the HR stuff for you, why did you hire them at all?  AB 1897 provides, effectively, that the employer cannot escape the administrative cost of complying with all labor laws by contracting compliance to another entity.  In other words, dear readers, the cost of doing business in California has just gone up once again, and the incentives for moving out have gone up with it.

Welcome back from your weekend, dear readers.  As your humble blogger started to go through workers’ compensation withdrawals, itching to get back to denying benefits, a dear friend tried to soothe my agitations with the helpful comment: “Hey, there’s always a light at the end of the tunnel.”

Well, good old Alex was right, but often enough, the light happens to be a train.

My beloved readers will recall, no doubt, my post on the Cerda matter, where a WCAB panel held that an applicant can treating with any physician within a defendant’s MPN at any location, so long as the physician him or herself is listed as being part of the MPN.  Since that case, a host of others followed with a similar result.

So, what was that humble blogger’s rant about earlier? With the tunnels and the lights and what small children and young-at-heart adults refer to as “choo-choos”?

Submitted for your consideration, the writ denied case in the matter of Ayers v. San Diego Unified School District, in which the Workers’ Compensation Appeals Board, adopting the WCJ’s opinion and reasoning, denied reconsideration of the finding that an injured worker is limited to the physicians listed at the listed location, and not at every location a listed physician may treat or affiliate.

The facts of the Ayers case are actually pretty good – an (admittedly) injured worker selected an MPN physician and wanted to receive treatment at that physician’s non-listed location.  However, the MPN printout reflects that “providers listed on the [MPN website] are deemed in-network providers at the listed location only and no other.”  Nevertheless, the injured worker selected a treatment location that was farther away from applicant’s residence than three other treatment locations in the same specialty.

At an expedited hearing, the WCJ held that the MPN website provided adequate notice that an applicant could only treat with the listed physicians at the listed location.  On applicant’s petition for reconsideration, the defense raised the argument that, under Labor Code section 4616(d), “[i]n developing a medical provider network, an employer or insurer shall have the exclusive right to determine the members of their network.”

The WCJ’s report placed special emphasis on the fact that the applicant was made abundantly aware of which physician (and which location) was within the MPN, and which was not.  Additionally, the WCJ specifically held that the Cerda decision, as discussed above, was distinguishable because the public was not placed on special notice (by a similar disclaimer) that the physician selected by the injured worker there was only in the network at that particular location.  The Court of Appeal denied review.

So, you’re probably saying to yourself right now “I think they gave me decaf by mistake…”  Otherwise, you’re probably thinking to yourself (because, unless you accidentally drank decaf coffee instead of regular, there’s no excuse to talk to yourself out loud, or so your humble blogger is repeatedly reminded by friends, family, and certain members of the medical community) “where’s the train? That sounds like an actual light.”

There’s about a dozen panel decisions or so out there with a similar holding to Cedra, although your humble blogger will let applicants’ attorneys do their own leg work in finding them.  By contrast, the WCAB’s opinion in the case of Tabak v. San Diego Unified School District comes to the same conclusion as Ayers.

What we’re seeing, effectively, is a growing split in the panel authority.  Once there is an adequate split in the panel authority, the Court of Appeal (or an En Banc panel) gets involved, and then the Workers’ Compensation community finds itself in the shoes of a man walking down a dark tunnel – blind, scared, and unsure if the light at the end of the tunnel is the sun or a train.

In the meantime, dear readers, I suggest we follow the example laid out in Tabak and Ayers, and update all of our MPN websites to reflect that “providers listed on the [MPN website] are deemed in-network providers at the listed location only and no other.”

Hello, dear readers!  Please forgive your humble blogger’s absence of late.  Reports of my demise are greatly exaggerated.

To prove the point, I bring you this post of the unpublished Court of Appeal decision in the matter of Tina Allen v. WCAB.  Now, remember dear readers, unless you’re willing to take a certain risk with a relatively novel legal theory, unpublished decisions are not to be cited.

So here’s the deal: Allen was employed by AT&T and had received warnings about her absenteeism – you can only play hookie from work so many times before your employer starts to take notice.  She was warned that, if she missed any more time from work, AT&T might encourage her to “Sprint” out the door (see what I did there?).

Well, shortly thereafter she filed a claim for an industrial injury, and missed more time from work.  However, her treating physician concluded that some of the time she missed from work was because of another injury sustained while dancing, and not from any industrial injury.  Accordingly, her employer let her go.

Ms. Allen then filed a petition for 132a penalties, but ultimately the WCJ and the WCAB concluded that the employer did not discriminate against Ms. Allen, because they did not treat her any differently than an employee with a non-industrial injury, as per the Supreme Court’s decision in Lauher.

So, Ms. Allen then contacted AT&T and asked to be reinstated.  These attempts to rekindle that lost employment relationship failed to stir a response from hard-hearted AT&T, who, for some reason, seemed determined to not rehire an employee previously reprimanded for repeated absenteeism.

So, Ms. Allen decided to leave the past behind her and pursue other employment opportunities, and that’s the end of that… just kidding: she filed a 132a petition because AT&T wouldn’t rehire her!

Now, your humble blogger has had his share of relationships end, but using legal action to force a reunion never seemed like a viable option.

On this second petition for 132a penalties, applicant argued she was discriminated against because she was not rehired.

The WCJ rejected the second bite at the apple.  Relying on City of Anaheimv. Workers’ Compl. Appeals Bd. the WCJ held that, in order to have a 132a claim, an employment relationship must first exist, which was not the case here as AT&T had decided to treat Ms. Allen as one of your humble blogger’s cell phone calls (and dropped her…)  Even if that were not the case, the WCJ noted that AT&T refusal to re-hire applicant was not shown to be related to her workers’ compensation claim, but to the same reason for which she was fired initially (the absenteeism).

The WCAB concurred.

In seeking the Court of Appeal’s review, Ms. Allen didn’t find much by way of luck.  The Court of Appeal noted that the issue of applicant’s lawful termination was resolved by the first WCAB’s opinion, and Ms. Allen should have sought appellate review at that time, but failed to do so.  And, as the lawful termination is now a fact beyond the Court’s power to disturb, the City of Anaheim case controls.

Now, the scenario is one that is interesting for many reasons, but the most interesting to your humble blogger is whether subsequent determination of facts can invalidate prior employment decisions.

Let’s say applicant is terminated for missing time from work because the primary treating physician determines the missed days to have been caused by non-industrial injuries.  Subsequently, the parties use an AME, who determines those missed days to have been caused by an industrial injury.  Should the employer then be required to rehire the injured worker?  Does the previously lawful termination of employment suddenly become an unlawful one, retroactively?

Leave your thoughts in the comments, dear readers, and have a great weekend!

So, dear readers, sit back and listen to a bit of your humble blogger’s story-time.  When I was knee-high to a grasshopper, still an eager intern with the District Attorney’s office, I witnessed the most magical of sights.  While going through the security check point at Superior Court, a defendant appearing for a minor traffic matter had some controlled substance and related paraphernalia were found in her purse.  In an effort to put the sheriff’s deputy’s mind at ease, the soon-to-be arrested young woman said: “I wasn’t going to smoke it in the courthouse.”

Look, folks, the Courts are not the place to engage in shenanigans of any sort, but least of all shenanigans of the workers’ compensation fraud variety.  Scott Masters, apparently, was not aware of the WCDefenseCA prohibition on Court shenanigans.

While reporting for jury duty in San Bernardino county, Mr. Masters allegedly fell and sustained injury to his left knee.  However, he then filed a claim against San Bernardino as an employee-juror.  At his deposition, however, he lied about his past knee injuries, denying that he had a history of arthritis and treatment to his left knee.

So, the San Bernardino County District Attorney’s office filed charges, and on September 4, 2014, the bracelets went *click*.

So, let this be a lesson to all of us: DO NOT DEFRAUD YOUR LOCAL COURT HOUSE.

Your humble blogger can only hope that all district attorneys will treat such fraud with so much zeal, whether or not the defendant is a government entity.

You know, dear readers, Darwin’s theory resists challenges based on biology, geography, faith, and even economics.  Darwin’s theory of natural selection endures time and space, and resists the barriers of language.  But there is one fatal flaw to Darwin’s theory – that theory that suggests that some traits die out in a gene pool and others, more adaptable to the environment, become more common with each generation – workers’ compensation.

You see, if Darwin’s theory were truly correct, each year we’d see better and better criminals; more sophisticated and refined frauds.  Instead, we get cases like Mr. Leonel Gonzalez.  Mr. Gonzalez recently plead no contest to one felony count of Workers’ Compensation Fraud, and is set to be sentenced to 180 days in county jail, 3 years of probation, and to pay restitution of nearly $32,000.

An EAMS search reflects that Mr. Gonzalez alleged an injury to the back, sustained in 2006, while employed in that far-away land known as “Southern California-stan-berg-land.”  But, despite claiming to being disabled, surveillance video caught him working out with a punching bag, doing martial arts, planting trees, and even shopping at Costco.  I think it is very important to point out that your humble blogger has no objections to shopping at Costco, although the intersection of Costco’s bulk-sales and their funeral department does present a somewhat grim image.

Now, your humble blogger would have expected Darwin’s theory to take effect quickly in our workers’ comp fraudster gene pool.  Haven’t we seen enough cases of people being videotaped while engaged in strenuous physical activity, sometimes on the same day as they had told a physician or testified at a deposition to near-paralysis?

Hopefully, this blog won’t be cited as any authority in the continuing contentions of appropriate school curriculum, but it should remind us that, despite Mr. Darwin’s valiant efforts in explaining the origin of species, the fraudsters aren’t getting any smarter.  It is diligence on the part of adjusters and investigators that sets up the case, and it is a zealous devotion to justice on the part of prosecutors that results in convictions, restitution orders, and the total invalidation of the “injured” worker’s credibility in a workers’ compensation case.

Have a good week, dear readers; your humble blogger intends to do the same.

Your humble blogger has had occasion to touch upon the initial physical aggressor defense in the past.  That great defense, the one found in Labor Code section 3600(a)(7) provides a bar to workers’ compensation benefits where the initial physical aggressor was the allegedly injured worker.

Ponder, if you will, the recently writ denied case of Mattas v. Shoker Trading Corp.  Applicant, a car wash employee, while on his unpaid lunch break, got into an altercation with a customer.  There was some history there of past unpleasant encounters with that customer at the car wash… and the rest gets hazy.

Applicant alleged that the customer threw a coup of hot soup in his face, and then attacked him.  The customer, by contrast, claimed that the applicant attacked him first.  The defendant-employer, of course, raised the defense of “initial physical aggressor,” claiming that applicant initiated the altercation.

The matter proceeded to trial, and the record was, shall we say… spotty at best.  The video provided by the employer was graining and didn’t offer much in terms of identifying either the customer or the injured worker.  The events leading up to the fight could be taken to be the customer throwing soup at the injured worker… or the customer making a slight hand gesture with his hand.

The witnesses weren’t very helpful either, apparently, being vaguely aware that a fight occurred.

All in all, after the trial, the WCJ held that defendant failed to meet its burden to prove up the defense, reasoning that, at best, it was unclear as to who the initial physical aggressor was.

The WCAB, in a split panel, on defendant’s petition for reconsideration, took another position (while reaching the same conclusion).  The WCAB noted that the WCJ’s summary of the video offered at trial reflected that the customer was agitated and kept getting closer to the injured worker.  This was sufficient to make the customer the initial physical aggressor, in that he was acting in a threatening and intimidating manner.

But, there was a dissent.  The WCJ noted that there was no evidence of actually aggressive language or gestures.  While the video may lend itself to that interpretation, the applicant never testified to being afraid or feeling threatened, and absent such testimony, you might need actual physical aggression initiating from customer.

I don’t think it’s the surprise of the century that your humble blogger agrees whole-heartedly with the dissent.  Generally speaking, most legal tests require a subjective and objective component: assault is placing a person in a reasonable fear of an imminent battery, so how could one assault a person by pointing a gun the person knows is unloaded at them?  How could this applicant be the victim of someone else’s initial physical aggression when there was no physicality and no aggression?

Some of my beloved readers (and less-than-beloved readers) will likely recall a blog post on the Yera v. J.C. Penny matter, in which the WCAB ruled that simply claiming to be “intimidated” by a supervisor’s presence was insufficient grounds for not attending a deposition.  Applicant showed no reason for why she would be intimidated, and should have sought a protective order right away, rather than simply refuse to attend.

Well, now let me show you the flip side of the situation.  In the case of Foroughi v. County of San Bernardino, applicant claimed to have sustained an industrial injury to the psyche, allegedly caused by her treatment at the hands of her supervisor for the past five years out of a 25-year-tenure.  When that supervisor appeared at applicant’s deposition as the employer representative, applicant broke down crying and shaking, and the deposition was terminated.

Applicant sought a protective order, seeking not only applicant’s supervisor, but also applicant’s supervisor’s supervisor from appearing at the deposition, supported by the report of her treating physician, who opined that “having [applicant’s] employer present at her deposition would be extraordinarily detrimental to her mental health”.  The WCJ denied the petition for a protective order, but the WCAB granted applicant’s petition for removal, reasoning that the employer could still have another representative present, and thereby the “party” defendant could attend the deposition.

Defendant’s petition for a writ of review by the Court of Appeal was denied.

Now, your humble blogger can’t help but disagree with the findings of the WCAB.  I’ve had the benefit of having employers attend applicant depositions with me, and it is an exceeding useful resource to have someone who is personally familiar with all the facts in a case present to help guide follow-up questions.

The benefit to the employer in attending the deposition is not just to have a fun field trip or to get a live performance of the latest legal drama about lawyers who really care.  The benefit to the employer in attending the deposition is to be able to assist the attorney in asking questions on the spot, with follow-ups, specific dates, and the names of specific witnesses, things that could be explored prior to an applicant’s deposition, but not nearly as effectively: who knows what curve balls the applicant will send your way?

There are less restrictive protective orders that are available that could have afforded the defense the benefit of having the knowledgeable employer representative present, and still avoided a face-to-face between the injured worker and her alleged oppressors.

Your humble blogger, for example, takes his depositions on his laptop.  The entire deposition could have a phone conference for the employer to listen in, and use a chat function such as Google Chat or Skype to privately communicate questions to the defense attorney to ask.  Sure, this may take longer, but what applicant’s attorney would object to a bigger 5710 fee?

Don’t get me wrong, dear readers: I fully sympathize with a person who has had a 5-year stint of traumatic psychological treatment at the hands of a supervisor, especially after a twenty year incident-free tenure.  But we’re not dealing with that here – we’re only dealing with the allegations of that scenario, and the purpose of discovery is to guide us to what we’re REALLY dealing with.  Meanwhile, the defendant is still entitled to a legal defense.

In the alternative, perhaps your humble blogger will start seeking protective orders to exclude the applicant’s attorneys that give me particularly bad headaches from depositions…

Happy Hump Day, dear readers, keep up the good work!