If you’re not a big fan of the antics of Justin Bieber, you might not be a big fan of some of his background singers either.  Apparently, Vernon Burris, a background singer for Mr. Bieber, is in some hot water over taking care of his disabled aunt.

Mr. Burris may even benefit from Mr. Bieber’s deposition tactics.

Deborah Wilkes, a former employee for Los Angeles County, had received a lifetime pension award, and her sister, Dolly Burris Bennett, was taking care of her.  Well, while Ms. Wilkes passed away in December of 2004, but Vernon Burris continued to sign her pension checks and deposit them into his mother’s account.  It is estimated that $165,000 was improperly collected from Los Angeles County.

Now, Mr. Burris managed to sing his way into an arrest in 2014, the authorities swooping in Justin time (see what I did there…? Because he worked for Justin Bieber…?)  So from the time of death to when a tip came in, LA had been paying out for about ten years!

Now, dear readers, before you close this blog post off from your computer screen and your thoughts, writing it off as a filler post and turning back to thoughts of your weekend, bear with me just for one minute more.

What procedure do you have in place for your pension cases, ranging from 70-100% permanent disability, to guarantee that the person receiving the pension is still entitled to it?  What program do you have to regularly check to make sure your closed cases don’t have potential to be reopened for a reduced award?

Diligence is expensive, and when dealing with someone honest, diligence may seem like an unnecessary expense.  But, the sad truth is that we don’t always deal with people who are honest.  Some people lie to get a workers’ compensation award.  Some people lie to keep the award.  Perhaps it makes sense to periodically check up on our semi-closed cases to see if it’s time to put away the checkbook.

Chins up, dear readers!  It’s going to be a good week – your humble blogger can feel it!

Some of my readers will remember the recently posted-of decision the Newton case, in which the WCAB panel of commissioners held that a registered nurse’s signature on a utilization review delay notice rendered the utilization review invalid.

Well, it looks like the WCAB may have reconsidered its position in Newton v. Jack-in-the-Box.

Originally, the WCAB ruled that defendant’s UR was defective because the delay notice issued by a registered nurse was in violation of Labor Code section 4610(e) (“[n]o person other than a licensed physician who is competent to evaluate the specific clinical issues involved in the medical treatment services … may … delay … requests for authorization of medical treatment…”)

When Ms. Newton’s requested treatment was delayed for a few days to obtain more information, and said delay notice was signed by an RN rather than a doctor, the WCAB found the ultimate UR denial of the treatment to be invalid as untimely.

However, when Mr. Jack Box found out about this, he was not too pleased, and got on the phone with his lawyers, demanding an immediate reversal.

A reversal it was! Defendant objected to the WCAB’s Notice of Intention to Award Medical Treatment, pointing out that the RN’s request for additional information was not the same thing as a “delay” in treatment, but rather a delay in UR’s determination.

Relying on Labor Code section 4610(d), the WCAB noted that the employer or insurer can request additional information to determine whether or not to authorize the treatment.  Furthermore, California Code of Regulations section 9792.9.1(f) provides that a non-physician reviewer can request the information.

So, there you have it folks, for the time being at least, registered nurses can continue to issue the delay notices while additional information is requested.

Have a great weekend!

Hello, my beloved readers!  As you return from your Labor Day weekend, relaxed, refreshed, and ready to take the Workers’ Compensation system by storm, your humble blogger greets you with news of a recent panel decision REJECTING jurisdiction over IMR.

I’ll have you know, first and foremost, that after last week’s post discussing the statutory requirement that IMR appeals be verified, your humble blogger was beset by a mob of devoted readers demanding more posts addressing the IMR appeal process.  Phone calls were received, e-mails were read, and borderline threatening messages were communicated.  Well, who am I to say no to such passionate voices?

As you will recall, Dubon was an en banc opinion in which the WCAB ruled that applicants can use expedited hearings to challenge the validity of the UR process, and thereby escape IMR.  The test appeared to be whether the UR decision suffers from a material procedural defect that undermines the integrity of the UR decision.

In the case of Stevens v. Outspoken Enterprises, Inc., applicant sought to challenge the IMR denial of a treatment request rejected by the Utilization Review process.  However, for reasons not apparent from the panel opinion itself, it appears that no Dubon challenge was mounted (as the WCJ noted in her report: “there have been no allegations of material procedural defect or untimeliness in the UR decision”).  So, the WCAB was left with a challenge to the IMR decision based on (1) the fact that IMR is unconstitutional; and (2) the IMR determination is deficient and does not constitute substantial evidence regarding medical necessity.

The WCAB’s response was to tell applicant that he was shopping for a hotdog in a hardware store.

The WCAB has no authority to declare statutes unconstitutional or to overturn legislation.  Additionally, the legislature has allowed for a very narrow few reasons to overturn an IMR decision, and the exhaustive list of those reasons is provided in Labor Code section 4610.6(h):

1. The administrative director acted without or in excess of the AD’s powers;
2. The determination of the AD was procured by fraud;
3. The IMR reviewer was subject to a material conflict of interest;
4. The determination was the result of bias on the basis of a series of protected classes; or
5. The determination was the result of a plainly erroneous express or implied finding of fact, provided the mistake of fact is a matter of ordinary knowledge based on the information submitted for review and not a matter that is subject to expert opinion.

And, here’s the best part: even if you succeed, at the end of the yellow brick road is what you’ve had all along: another IMR!  As goes the panel opinion: “the remedy provided for any successful appeal of an IMR pursuant to section 4610.6(h) is limited by section 4610.6(i) to the conduct of another IMR” and something tells your humble blogger that more IMR is not what any applicant is looking for.

So, why didn’t the applicant go full Dubon on this case?

Your humble blogger can only speculate.  In speaking with applicant’s attorneys here and there, it appears that the general policy is to always file an expedited hearing on a UR denial and make the defendant waste funds on its defense.  The familiar logic of scorched Earth appears to be that, eventually, defendants will prefer to pay for the medical treatment rather than to pay to defend it, and that today’s bottom line will trump tomorrow’s encouragement of frivolous claims.

My regular readers know how I feel about paying the Dane’s Geld, and so I can’t help but applaud the defendant in this case for its staunch defense of the IMR ruling.  Well done!

Alright, dear readers, you’ve made it!  After countless excuses and apologies to friends, family, and neighbors, you’ve escaped being trampled at the mall, avoided being burned at the BBQ, and you’ve even skipped having your bee sting allergy triggered at that one last picnic of the summer.

And here you are, sitting in the peace and quiet of your office, with your files to keep you company and your computer screen glowing warmly at your overworked and under-rested eyes.

Breathe it in, dear reader, you’re in the workers’ compensation industry!

In the alternative, if you’re reading this on Tuesday, then odds are you took the day off, so Happy Labor Day to you!

As we all know, Labor Day was originally part of the union movement in an effort to keep the working man from work, at least on the first Monday in September.

Well, thanks to a handful of workers’ compensation applicant attorneys and their eager-to-please treating physicians of choice, there are now more days than one when the working man can be kept from working, for reasons ranging from paper cuts to hurt feelings.

If you’re among the fortunate masses taking the day off, cheers! Otherwise, dear reader, let’s you and I turn back to our workload, and I’ll see you back here on Wednesday!

Greetings, dear readers!

As much as it pains your humble blogger to allow his oft-cited and sometimes cursed pages to fall silent for so long a time, justice will not serve itself, and your humble blogger is always ready to answer its calls.  (Fear not, dear readers, your subscription fees are being refunded even as you read this…)

Anywho, I have returned, in this case, to help the Workers’ Compensation Appeals Board deliver a very important message: verified means verified.  By contrast, “verified”, as used by the Labor Code and the California Code of Regulations, does not mean “not verified”.

The case on point is that of Torres v. Contra Costa Schools Insurance Group.  Mr. Torres sustained a few injuries and was the receiving medical benefits, including but not limited to Duragesic patches (pain meds).  At one point, a UR review denied authorization for more patches, as it had requested (but not received) additional information on why this particular medication was being recommended.

A UR denial went on to an IMR review, which held firm the reported 80% UR affirmation rate, and likewise denied the treatment.

Not deterred, applicant pursued the additional remedies available under Labor Code section 4610.6(h), seeking to appeal the determination of the administrative director (IMR).  However, applicant failed to provide a verified petition, as required by 4610.6(h) (“[a] determination of the administrative director pursuant to this section may be reviewed only by a verified appeal…”).

So, then, dear readers, what’s to be done?

Defendant sought dismissal of this appeal, as applicant had failed to provide a verified appeal.  After all, California Code of Regulations section 10450 provides that “[a] request for action by the [WCAB] … shall be made by petition” (subsection (a)); and “[a]ll petitions and answers shall be verified under penalty of perjury … [a] failure to comply with the verification requirement constitutes a valid ground for summarily dismissing or denying a petition…” (subsection (e)).

Having weighed the issues, the WCAB decided to provide a “significant panel decision,” allowing applicant 20 days to submit a verified petition to challenge the IMR determination.  Now, of interest here is that the WCAB acknowledged that a failure to verify a petition is not automatic cause for dismissal, so long as the submitting party cures the defect within a reasonable amount of time after it is pointed out.

Furthermore, as this is all relatively new, some slack has been cut, especially considering the ever-present interest of deciding cases on their merits rather than on legal technicalities.

If the WCAB is going to allow the party to cure this defect on a regular basis, then perhaps the workers’ compensation community needs to approach this in a new way.  Instead of allowing an unverified petition to be dismissed, perhaps the parties should immediately point out the defect in writing as soon as the petition (or answer) is received.

That way, should this pointed-out defect be ignores, or of procrastination should get the better of your opponent, you can point the fact out to the reviewing Judge, who will then have a basis to dismiss the unverified petition.

Just a thought, dear readers, just a thought.

How would you like to send your injured worker to a physician of your choice for a thorough examination?

Labor Code section 4050 requires the applicant to submit to evaluations by a physician of defendant’s choice “at reasonable intervals” and at defendant’s expense.   However, are these reports of any use?

First off, let’s talk about the good.  Section 4050 allows you to get an injured worker before a physician you trust, and get a thorough evaluation going.  What’s more, it’s an opportunity for you to have your own expert witness prep your attorney for the cross examination of a QME or AME that might decide to get creative with his or her own report.  Although we defense attorneys possess “Juris Doctorate” degrees, we typically welcome all the help we can get with the medical mumbo-jumbo.

In fact, in the panel case of Lopez v. Target Corporation, from way back in 2012 (you remember 2012, don’t you? The year before SB-863 took effect in full…) held that the defense is entitled to compel applicant’s 4050 evaluation specifically so that the defense expert can assist in the preparation of the evaluating physician’s cross-examination.

Here’s another fun fact: if you suspect your injured worker of lying, a 4050 evaluation may provide another opportunity for him or her to get caught up in his own web, especially when combined with some well-placed sub rosa.  And while the WCAB may not be interested in reading a report (or viewing a video-taped evaluation) which comes from a 4050 exam, the local law enforcement folks should have no such reservations.

Additionally, section 4053 provides that “[s]o long as the employee, after written request of the employer, fails or refuses to submit to such examination or in any way obstructs it, his right to begin or maintain any proceeding for the collection of compensation shall be suspended.”  Your humble blogger doesn’t need to tell you the benefits of a missed appointment.

And, on top of everything else, this is a guaranteed spot for your sub rosa guys to meet the injured worker and follow him or her around.  Wondering where he’s working? Wondering what she’s doing with her spare time?  Now you’ll know where and when the injured worker will be for your hounds to pick up the scent.

Now, let’s talk the bad.

California Code of Regulations section 35(e) purports to limit the reports that can be sent to a PQME, namely prohibiting “any evaluation or consulting report written by any physician other than a treating physician, the primary treating physician or secondary physician, or an evaluator through the medical-legal process in Labor Code sections 4060 through 4062, that addresses permanent impairment, permanent disability or apportionment under California workers’ compensation laws, unless that physician’s report has first been ruled admissible by a Workers’ Compensation Administrative Law Judge.”

In Marciano v. Ameriflight, Inc., a 2013 panel case, the WCJ ordered that a 4050 report shall not be provided to a QME because section 35 is the authority on what documents can be sent to a PQME,  citing § 35(e).  The WCAB adopted and incorporated the WCJ’s report.

But, don’t get discouraged.  35(e) provides that the WCJ can still rule on admissibility, and if the report itself merits it, perhaps just such a ruling could be obtained (hope springs eternal).

What do you say, dear readers, have you had any luck with 4050 exams?

Alright, dear readers, we have a new champion for the crown of the most ridiculous workers’ compensation claim.

As you well know, each claim is judged by its own penchant for insanity, absurdity, and even audacity, or as might be heard around your humble blogger’s household, Chutzpah!

Previously, this blog observed with wide-eyed amazement some of the claims made against employers and insurers in California, including demands for industrial fertility treatments, an applicant marrying his wife to be able to invoke spousal privilege against her testifying, and even claims of disability while competing in Mixed Martial Arts competitions.

Well, here’s your humble blogger’s new champion if, of course, all charges are proved beyond a reasonable doubt: Aurora Barrera.  Ms. Barrera was apparently employed at a bank and suffered psychological injuries when she was held hostage by two men, forced to wear a bomb, and told to go into a bank and rob it.  She received workers compensation benefits of about $35,573 and medical benefits as well.

Now, calm down, dear reader, I know what you’re thinking: “Not only is this poor woman traumatized, but now my humble blogger is publicly ridiculing her on his fantastic blog that everyone should read.  I demand a refund!”

It’s fake, dear reader, it’s all fake! Not only did she conspire with the bank-robbers, but she knew the whole time it was a fake bomb.  SHE IS A BANK ROBBER!

And, not content with merely robbing the bank, she also elected to rob the workers’ compensation system by claiming a psychiatric injury as a result of the crime she herself committed.

Picture, if you will, John Smith, convicted by a jury of his peers for murdering his parents, and when asked for reasons that he should receive leniency, he, weeping, tells the Judge, “But your honor, I’m an orphan!”

Congratulations to the fraudster on the new title!  Every time a workers’ compensation fraudster gets convicted, your humble blogger cheers… you can (wait for it…) bank on it!

Many beauty pageants include a talent section, and the 2014 Miss Toyota Long Beach Grand Prix contest is no different.  What special talent is making the news in this corner of the workers’ compensation world – it isn’t handstands; it isn’t even finding “the Iraq” on a map.

This time, it was committing insurance fraud!

Shawna Lynn Palmer stands accused of engaging in felony insurance fraud, after she was seen participating in beauty pageants, despite claiming that she could not wear shoes or put weight on her foot because of her toe.  The videos show her walking in high heels, and apparently there is documentation of her attending treatment visits and being issued crutches!

Well, according to deputy insurance commissioner Byron Tucker, social media played a role in gathering evidence in this case.

So, how about you, dear readers, are you checking up on your applicants through social media?  Are you Tweeting and Facebooking and the such?

Have a good weekend, folks!

Your humble blogger previously opined that, despite Labor Code section 4062.2(f), which holds that “[t]he parties may agree to an agreed medical evaluator at any time, except as to issues subject to the independent medical review process established pursuant to Section 4610.5” the parties actually could enforce an agreement to submit medical treatment questions to an AME rather than to UR and IMR.

Well, it looks like the WCAB might take the same stance, as expressed in the panel decision in Bertrand v. County of Orange.  Applicant resolved her claim back in 2004, with a stipulation to submit future medical treatment disputes to the AME.  Well, fast forward roughly ten years, and defendant is claiming that all treatment disputes must go to Utilization Review and Independent Medical Review.

The WCJ held the agreement binding, and the defense sought reconsideration.  Treating the petition as one for removal, the WCAB held that “the new IMR process for reviewing a UR denial of medical treatment may be waived by the parties’ stipulation to bypass statutory review in favor of submitting their disputes to the AME.  The recent change to IMR as the method of review of medical treatment disputes, as provided in Labor Code section 4610.6, does not supersedes the parties’ stipulation…”

Now, it’s pretty hard to square that with the Labor Code: “the parties may agree to an [AME] at any time, except as to issues subject to [IMR]” on one hand, and “the new IMR process for reviewing a UR denial of medical treatment may be waived by the parties’ stipulation to bypass statutory review in favor of submitting their disputes to the AME.”

Let’s take this a step further – if the WCAB is saying that the parties may waive various statutory protections and resolve disputes by agreement, is there any limit on what benefits the parties can waive?

This is an issue that needs some serious, binding authority, but absent a petition for review by the County of Orange, we won’t find it here.

Would you go to trial over $121?  The recent writ denied case of Martinelli v. Monterey County Superior Court, seemed to answer the question in the affirmative.

Ok, so here’s the deal: applicant court clerk sustained an admitted industrial injury which was resolved by way of C&R in the amount of $10,000, $1,500 of which was to go to the applicant’s attorney.

The C&R was approved on December 6, 2012, and a check was mailed on December 11, 2012.  Apparently, applicant did not receive the check, so a second check was issued on January 13, 2013.

Applicant claimed a right to the interest accrued during that period, while defendant maintained the position that it had discharged its duty by mailing the first check, and interest was not its responsibility.

The amount of money claimed? $121.20.  Oh, and applicant wanted a 10% penalty for the delay, to be paid in the amount of $12.12.

How much time does a person have to have on his hands that he’s willing to pursue $133.32 all the way to trial, reconsideration, and even review by the Court of Appeal?  Now, I’ve heard of going up on reconsideration over 3 cents, so perhaps this is not the smallest amount of controversy out there, but… really?

The C&R included a provision, as most do, that no interest would be owed if payment was made within 30 days of the C&R being approved, but the WCAB (and the WCJ) held that payment was not made within 30 days, because payment is made when the check is sent and paid.

Now, look, dear readers, your humble blogger can understand how the thousands upon thousands of my loyal readers (despite the humble showings of actual e-mail subscribers) might shake their heads at both the applicant and defendant for spending a single hour of billable time fighting this contention.

But, sadly, your humble blogger cannot agree.  While my ethical duties to give competent counsel might require me to advise simply paying the $133.32, as a blogger who has no ethical duties to anyone at this point, I can speak from the heart…

Rudyard Kipling wrote a wonderful poem once, called The Dane-Geld, in which “an armed and agile nation” invaded a neighbor and demand payment to leave.  And, of course, “It is always a temptation to a rich and lazy nation, to puff and look important and to say: though we know we should defeat you, we have not the time to meet you.  We will therefore pay you cash to go away.”

Kipling, wise man that he was, knew the result of paying tribute in lieu of defending one’s rights:  “[f]or the end of that game is oppression and shame, and the nation that plays it is lost.”

Now, again, when my clients are faced with paying a trifling sum or litigating the matter, my ethical duties require me to advise them on the economics of the matter: $X in billable hours is not worth fighting over, and possibly losing the additional $133.32.

On the other hand, I’m just the attorney, and defendants, especially the adjusters on the file, have a consideration other than saving a few dollars today: the applicant and the applicant’s attorney will quickly learn that they are free to make unreasonable claims, so long as they are a trifling sum, and thereby get extra money.  After all, how would you like to develop the reputation that you can easily be bullied into a few hundred dollars at every turn?

As for the lessons to learn from this case, perhaps we should all be putting even more supplemental language into our settlement documents?  Something about interest being waived on timely mailed but ultimately lost or misplaced payments?

What do you think, dear readers?  Does your reputation for resistance to baseless demands factor into the equation when weighing the cost of the defense?