Some of your humble blogger’s devoted readers represents cities and counties, and so, naturally, have to deal with injury claims from peace officers entitled to paid leave rather than temporary disability benefits for up to one year.

It would be the rudest form of neglect if I was not prepared to provide an equal amount of disappointment and dread with respect to the workers’ compensation system in California to all readers, including those who employ peace officers and firefighters.

In the Court of Appeal’s opinion in the case of Knittel, the law became very clear to us all, that Labor Code section 4850 allowed peace officers and fire fighters to have a leave of absence of one year without any loss of salary in lieu of temporary disability benefits, but not in addition to the 104 week cap imposed by Labor Code section 4656.

Well, about that…

It appears that Assembly Member Perea is not happy with the Knittel opinion, and has introduced Assembly Bill 2378 “to abrogate the holding in … Knittel,” amending the Labor Code to make section 4850 benefits payable in addition to those benefits outlined by Labor Code section 4656.

In other words, if you are injured as a firefighter, you should be able to be paid to be off work for 3 years!

Your humble blogger has a great deal of respect for our beloved public servants, but come on.  Each firefighter and police officer is already expensive enough for every city and county (and the state), without adding another cost to the bottom line.  At the risk of being pulled over for a soon-to-be-broken tail light, why not get elected by promising to make every single peace officer a millionaire?

The police and firefighters in California do a tough job and they are compensated very well.  They enjoy more privileges and better benefits than most of the other people in the state.  Do you really want to burden cities and counties barely making ends meet with an extra $56,000 in temporary total disability liability?

Your humble blogger says no – let the public servants sleep in beds no better than the public served.

What better way to brighten your Monday, dear readers, than to tell you the tale of a failed attempt to use the ol’ Almaraz/Guzman hot air machine to inflate the impairment of an injured worker?

Consider, if you will, the case of Davis v. Walt Disney Company.  Now, Disney Land truly is the happiest place on Earth, but the Disney Company office is probably not even in the top 10, as poor Mr. Davis discovered when he hurt his back while pulling a heavy filing cabinet just three days into the year of 2008.

Well, he apparently sustained considerable harm from his injury, but of particular interest was the method used by the orthopedic Agreed Medical Evaluator.  The good doctor waved his wand, cast his spell, and after saying “hocus pocus” a few time, started flipping through the AMA Guides until he found Figure 15-19, and multiplied the 80% whole person impairment for total loss of function by the 60% loss of function to provide a WPI of 48% (the “straight” AMA rating would have yielded a DRE Category IV 26% WPI).

The AME testified that he relied on simple arithmetic to arrive at this 48% figure, and that there was no table or graph telling him that 60% loss of function would yield a 48% whole person impairment.

After a brief trial and a trial brief (get it? Ha, ha, ha…) the WCJ found that the Almaraz/Guzman rating was not substantial evidence.

The AME concluded that 60% of applicant’s cervical spine function was lost, despite very different conclusions reached by the Range of Motion and DRE Methods.  As the A/G opinion holds, a physician is not allowed to conduct a fishing expedition through the Guides ‘simply to achieve a desired result’.

Of particular interest in the fact that if the AME were to use the work restrictions he imposed in a pre-2005 rating schedule (limitation to light work), the pre-2005 rating schedule result would be the same: 50% WPI (the AME added pain to the 48%, resulting in 50% WPI).

During the deposition of the AME, defendant also made another good point: sometimes there isn’t a linear growth in impairment, so while a total loss of function might produce 80% WPI, there is no reason to assume that 50% loss in function would result in 40% WPI, and not 35% or 45%.  Accordingly, the use of simple arithmetic to calculate the WPI to the cervical spine is something the good doctor came injected himself, and is not based on the AMA Guides in this case.

Through a vigorous defense and assault on the Almaraz/Guzman rating, the defense was able to dispel the magic smoke and mirrors, and hammer the case back down to the strict AMA Guides.

As my readers will recall, we’ve seen the Almaraz/Guzman ratings defeated in the past.  For example, we saw the WCJ and WCAB reject an A/G rating in Olguin v. ESIS; we’ve seen the WCAB uphold an evaluating physicians’ refusal to apply A/G in the Malhotra v. State of California case; and we’ve even see A/G used to reduce whole person impairment in the Riley v. City of Pasadena case.

Unfortunately, these are rare examples, and the norm is to witness the magic that is Almaraz/Guzman turn a papercut into a paralysis.  Abracadabra.

Relationships can be tricky, and often a lot of time is spent wondering whether the relationship is there, in the real world, or just sharing a bench with the Easter Bunny and Santa Clause (figments of your imagination, all).  Think back to grade school, when Gina asked to borrow your eraser and then returned it with a nice “thank you.”  How many hours were spent agonizing over whether you were now in a committed relationship?

Such was the case with the unfortunate Mr. Graves in the matter of Graves v. Roy’s Concrete & Masonry, Inc.  Applicant claimed to have sustained an injury, but defendant tenderly placed his its finger to his lips, whispering “hush… you were never an employee.”

The matter proceeded to trial and applicant claimed that he had been paid $100 per day as an employee of Roy’s Concrete.  But the Judge noticed that, before the Labor Board, applicant testified to being paid $25.00.  He claimed to have gotten emergency treatment for his injury, but cross-examination showed him to have gotten treatment for his migraines.

In other words, the Judge was not impressed, and found applicant’s credibility to be lacking.  A take-nothing order was issued.

In his petition for reconsideration, applicant argued that the WCJ should have undertaken a Borello analysis.  The WCAB gave this argument very little credence, noting that if there is an affirmative finding that applicant is not a credible witness, then it is easy to proceed to a finding of no credible evidence of an employment relationship.

Defendant was saved from a whole world of pain in this case because the defense attorney was able to properly impeach the applicant-witness.  But, if you pull back the curtain here, you can see there was a lot of communication between the employer and the insurer.  The insurer probably didn’t have much interest in the Labor Board proceedings against the employer, but by all parties sharing information and working together, applicant’s inconsistent testimony could be properly laid out for the record.

Your humble blogger knows it takes extra time and extra money, and sometimes can be downright difficult to do – but while the employee and the employer is sorting out their relationship status (for the Facebook generation, that would be the “it’s complicated” category) the relationship between the insurer and employer should be solid, glowing, and one of trust and cooperation.

And no, dear readers, in case you’re wondering, Gina actually just needed to borrow your eraser – you can still see other people.

Have a good weekend!

Hey there, dear readers, quick question for you – do the names Daniel Shin, Thomas Mark Oseransky, and Dyno Travato West sound familiar?  These guys have been charged in a prescription fraud scheme down in Los Angeles, and you may want to check your files for any liens coming from their pain management clinics.

A press release from the Los Angeles District Attorney’s office, reflects that the three have been charged with 21 felony counts.

Do you have any liens from these guys?  It is not immediately clear if there were workers’ compensation cases involved in the scheme, and if there were, the DA’s office may not be aware of them just yet.

In any case, the lien files warrant a quick review to see if this prosecution (and the possibility of a conviction) might warrant a delay in the lien resolution.  After all, if convicted, these gentlemen will hardly make effective witnesses.

This should also serve as a reminder to us in the defense community that we must be ever vigilant.  If a lien claimant is involved in something fishy, speak up and don’t wait for the next guy to do something about it.

WCDefenseCA sends its warmest wishes to the DA’s office and hopes for speedy justice.

Hello, dear readers!  Did you miss me?  As a peace-offering for forcing you all into WCDefenseCA withdrawal (my dog ate my blog posts – I swear!), I bring you the interesting case of Carlos Cabrera Razo v. Las Posas Country Club.

In pre-SB-863 California Workers’ Compensation, after a panel issued, a party had to make empty and meaningless gestures to consider using one of the panel QMEs as an AME.  10 days after the panel issued, the parties could begin the strike process, to leave the last QME standing.  If, however, a party failed to strike a name by the 13th day after the panel issued, the other party could make the selection.

Interestingly, as we learned in the Guillen case, the 10-day waiting period to strike is not mandatory, and a party can strike immediately.

Well, SB-863 changed several things about the panel process, which, in his heart of hearts, your humble blogger hopes will join parachute pants and snooze buttons on smoke alarms in the land of bad and abandoned ideas.

SB-863 got rid of the need for meaningless AME offers and boilerplate Primary Treating Physician objections.  It also codified Guillen in the sense that there is no longer an argument for requiring a 10-day waiting period prior to starting the strike process.

But, it also got rid of the 3-day waiting period.  (See Labor Code section 4062.2(c).)

So, we have the issue of the Razo case.

In Razo, the original panel was issued on October 18, 2012, and a replacement panel was ordered on November 30, 2012, which then issued on January 3, 2013.  Defendant struck one name from the panel on January 11, 2013 (8 days later), and then on January 14, 2013 (11 days after issuance) selected a QME from the panel.  Applicant struck a name on January 15, 2013 (12 days after issuance).  Was applicant’s strike valid?  This question turned, naturally, on whether the 2012 version of Labor Code section 4062.2 applied to a 2013 panel, or if it was the 2013 version.

The WCAB relied on section 84 of SB-863, which made all sections applicable to all pending matters, unless otherwise stated.  Accordingly, even on an pre-1/1/13 injury, and even if the panel was requested or ordered prior to 1/1/13, the fact that the panel was issued after 1/1/13, means that there is a 10-day strike process, and not a 13-day strike process.

HOWEVER – the panel also held that the 5-day waiting period applies to the strike process, rendering applicant’s strike timely.   (See California Code of Civil Procedure section 1013; Messele v. Pitco Foods, Inc. (2011; en banc).)

Here’s the problem though – for years we’ve been told that the 5-day mailing period does not apply to the strike process.  In fact, the CAAA repeatedly told its members to rely on the case of Alvarado v. WCAB (2007) 72 CCC 1142 for the proposition that while the 5-day waiting period may apply to the timing of a panel request, it does not apply to the striking of a name from a panel.  (In case you’re wondering, yes – the panel does specifically disagree with Alvarado.)

So, if this case is any indication, the parties have an additional 5 days to make a strike upon one of the names from a panel.  It also appears that the parties have an additional 5-day delay in getting to pick a QME from the panel.

Don’t these petty disputes make you wish you could just pick your own QME?

Back in the old days, before SB-899, parties in workers’ compensation proceedings behaved much like parties in a civil case.  By that, I mean of course, that each party got to select its own expert witness (Defense QME and Applicant QME), and workers’ compensation trials were held in the Thunderdome wing of every Board venue (“Two docs enter, one doc leaves!”)

For those that weren’t with us back then, here is some rare footage of a workers’ compensation attorney laying the foundation for the introduction of two orthopedist QMEs with dueling testimony:

Well, post SB-899, that practice came to an end, and we were blessed with the seamless and streamlined process of panel QME selection.  However, Labor Code section 4064(d) still allowed parties to obtain additional evaluations at their own expense, and have those reports admitted as evidence.

SB-863, however, changed that – it amended section 4064(d) to exclude reports on issues already covered by section 4060 (compensability), 4061 (PD), 4062, 4062.1 (unrepresented catch-all), and 4062.2 (represented catch-all).

So what happens when a report from a “self-procured” QME was obtained after January 1, 2013, when Governor Brown put pen to paper and made the bill law?

Section 84 of SB-863 made all the rule changes, unless otherwise provided, effective on 1/1/13, even for pre-1/1/13 injuries.

That was the ruling, at least, in the panel case of Margaret Batten v. Long Beach Memorial Hospital.  Applicant was awarded a whole lot of PD based on a report obtained under old Labor Code section 4064(d).  But even though the injury is from 2006, and the report was obtained prior to 1/1/13, SB-863 prohibited its admission into evidence after 1/1/13.

So, if you’ve got a 4064(d) report and you’re heading into trial, check the expiration date, you might be able to get it knocked out.

California Code of Regulations section 9792.10.1, subsection (b)(2).  Just an obscure regulation gathering dust, but still an interesting point to keep in mind the next time you find yourself facing some applicant-sourced resentment over a UR denial.

Subsection (b)(2) holds that if an injured worker requests independent medical review, the request must be communicated within 30 days of service of the utilization review decision, and “[t]he request must be … submitted with a copy of the written decision delaying, denying, or modifying the request for authorization of medical treatment.”

The DWC has released a bulletin, saying that reminders of this requirement will no longer be sent out, and that section (b)(2) will now begin to be enforced.

But, this cuts both ways – the UR decision denying, delaying, or modifying the decision must now come with a new form advising the injured worker of this fact.

So, what would a devious, heartless, scheming attorney recommend to his readers?  Only the obvious – do nothing.  Don’t call applicant’s counsel on day 2 of 30 and say “Ha! Ha! Ha! You didn’t submit the UR report with the IMR request!”  After all, Napoleon Bonaparte himself is said to have said “never interrupt your opponent while he is making a mistake.”

Provide the new form, and seek strict enforcement, as the applicants’ attorneys’ Bar is with Utilization Review.

Have a great weekend!

UPDATE: The WCAB has decided to proceed as described above.  Navarro is now an en banc opinion.

Alright dear readers, you’ve made it – it’s Wednesday, and the ripples of last week’s en banc decisions are starting to fade.  Before too long, it will be Friday again, and it will be business as usual in the world of workers’ compensation.

The second decision of the two released last week by the WCAB, which seems to have received considerably less attention than the Dubon case, is that of Ismael Navarro v. City of Montebello.  Before I go into the details of that case, I’d like to relate to you what I overheard being put before a WCJ at one of the Boards in the Bay Area.

The parties had agreed to use a particular AME for applicant’s back injuries (a CT and a specific).  After a re-evaluation, the AME opined that applicant had actually sustained a third back injury, at which point the applicant’s attorney requested a panel as to that injury.

The defense attorney promptly filed a DOR, and the parties appeared before the Judge to argue the issue of whether applicant’s agreement to use an AME binds him to that AME for all future questions of injury (particularly if it is the same body part at issue).  Applicant argued that the arrangement to submit all issues to an AME was one of contract, and there was no agreement to an evaluator for future injuries.  The Defense attorney argued that this was the same body part and still the same employer, therefore the original agreement applied to this new, alleged injury.

The Judge offered some guidance towards mediating the dispute, as good judges often do, but neither attorney nor the Judge could think of any authority that controlled on the issue.  Now they do.

In the Navarro matter, applicant had three injuries, allegedly sustained while employed by the same defendant, and all three were to the same body parts.  Pursuant to Rule 35.5(e), the defendant argued, the same qualified medical evaluator should have been used for all three injuries.

Upon review, the soon-to-be en banc decision held that 35.5(e) was inconsistent with the labor code and is ruled invalid, allowing an injured worker to seek a new panel for each subsequent injury.

In short, every additional injury claimed can warrant a new panel, so, potentially, you could have three QMEs all opining on different back injuries.  You would also have the added bonus of triple the costs of a QME, with potentially as many depositions and record reviews.

I hate to say this – but bad, bad, bad, result!

Turning back to the matter discussed above, it’s true that this case is not binding with respect to AME agreements.  However, it strikes at the very heart of the idea that one evaluator’s opinions will be binding for all future injuries.  It gives the party that didn’t get to pick a specialty last time a second bite at the specialty apple, and, best of all, it will flood the WCAB with the litigation that workers’ compensation Judges love more than any other: specialty disputes!

So, while this gets sorted out on Appeal, or (hopefully) emergency legislation comes through to amend the Labor Code (don’t hold your breath), what can you do to avoid such messes?  Well, not much.

It is questionable whether any agreement for injuries yet to occur could be enforced against the applicant, and so any efforts to agree to use the same evaluator for the future would probably be worth less than the paper this blog is printed upon.

Now, fortunately, this is only a notice of intention to issue an en banc opinion, and the parties and the DWC are invited to submit arguments why there should be a different (or the same) holding.  Generally speaking, statutes are not supposed to be interpreted in such a way that would produce an absurd result, but that’s what we would have here:

Injury 1 is evaluated by QME A; who finds that applicant has 8% WPI for his back injury;

Injury 2 is evaluated by QME B; who finds that applicant has 4% WPI for his back injury, and 10% of it can be apportioned to Injury 1;

Injury 3 is evaluated by QME C; who finds that the impairment is total, but not caused by any industrial injury.

Best of all, each QME has a different set of work restrictions.  Now, when applicant has not yet resolved his first injury but has already claimed a second, which work restrictions does the employer follow?  How does apportionment work when the three QMEs are all giving different opinions on every issue?  As the joke goes, when you put three QMEs together for one night, you end up with 5 opinions…

And, best of all, when will the WCJs get to do any substantive work when nine out of every ten hearings is about which panel and which specialty controls for each injury.

Unfortunately, interpreting the Labor Code to invalidated Rule 35(e) will produce an incredibly damaging and harmful result, if not an absurd one.  But perhaps the Legislature will have to act to clean this mess up.

To all my beloved readers that have Sacramento on speed dial, I urge you to consider pulling your puppet strings to fix this with an statutory amendment as soon as possible.

Hello, dear readers!

The winds have blown, the storms have raged, the heavens have poured out their bounty upon the thirsty California lands, and your humble blogger remains ready and vigilant to report to my elite readership of the goings on in the world of workers’ comp.  After all, “neither snow, nor rain, nor gloom of night, stays this humble blogger from ranting about workers’ comp.”  And as the storm clouds parted and the water receded, two new decisions from the WCAB were left for the world to see.

The subject of this post is one of those decisions, the en banc opinion in the matter of Jose Dubon v. World Restoration, Inc.  This case has lost no time in gathering the condemnation of many voices in the workers’ compensation world – it will increase litigation, it will destroy the gains made by SB-863, human sacrifice, dogs and cats living together…

Relax dear readers – the sky is not falling, and Chicken Little can go home.

Basically, what happened was this: applicant’s primary treating physicians recommended surgery, and UR denied it.  After an appeal, the initial decision to deny the treatment was upheld.  So, applicant’s counsel requested IMR review of the UR decision, but also filed a Declaration of Readiness to Proceed to an expedited hearing to test the validity of the UR decision.

The WCJ reluctantly ruled in favor of the defense, reasoning that only IMR can review UR decisions (See: Labor Code section 4610.5(e) (“a utilization review decision may be reviewed or appealed only by independent medical review pursuant to this section.”))

In short, it appears that the UR report did not review all the pertinent records, primarily reviewing the request for authorization and 18 pages of unidentified medical documents.  The WCJ interpreted 4610.5(e) to preclude her disturbing the UR decision.

Upon applicant’s petition for reconsideration, the en banc opinion reversed.  Essentially, the Dubon opinion would require applicants to categorize their displeasure with the UR denial into one (or two) categories.  The first category is a substantive medical dispute.  In those cases, the WCAB encourages applicants to request IMR.

The second category is for those Utilization Review reports that are procedurally defective, either because they are untimely or because the relevant regulations were not followed with respect to listing medical records received and reviewed, or a failure to review all the pertinent information.   This second category of UR may be reviewed by a WCJ, but even if UR is found defective, the applicant must still prove that the medical treatment is necessary and related to the injury.

Now, I know, I know, dear readers – I’m a defense attorney and this is a defense blog so I should condemn this decision for not saying that a UR report is only untimely if IMR says it is untimely and that SB-863 intended to bar WCJ’s from the use of calendars.

But, come on folks – anyone who has been to the Board since January 1, 2013, will tell you that applicants have been pushing this theory non-stop.  The theory has always been that IMR only reviews UR, and that if the denial does not meet the statutory requirements for UR, it is not really UR.  UR understanding me, yes?

Another critique of this case has been that the burden is shifted on the UR reviewer to review all medical reports and the entire medical history, where the burden is better placed on the physician requesting authorization.

Look, your humble blogger is a cold, heartless defense attorney – sure.  But the purpose of Utilization Review is not to game the system – if the UR reviewer thinks that the request for authorization is coming from nowhere, he or she can issue a delay notice and request  more information from the physician requesting authorization.  If the treating physician doesn’t respond or doesn’t provide the requested documentation, it’s a lot easier to issue a denial and make it stick.  If your UR vendor either rubber-stamps approvals or rubber-stamps denials, maybe it’s time to find a better UR vendor.

On the other hand, this decision might actually cut down on some litigation: if the UR decision is procedurally defective, a good defense attorney will advise his clients of that fact from the get-go, and save the defense unnecessary delay and litigation costs.  On the other hand, if the applicant truly can’t point to a substantive procedural defect, his or her attorney might not want to waste the time (and the sanction dollars) on taking a frivolous position.

This may result in a lot more delay notices being issued, but perhaps it will condition primary treating physicians to properly document and support their requests.

Relax, dear readers, the sky is not falling and the world is not about to end – you’re just experiencing another day in the wonderful world of workers’ comp.  Now roll up your sleeves – it’s only Monday.

Be wary of knee-jerk reactions, dear readers.  Often enough, a party receiving an adverse ruling by a workers’ compensation Judge will immediately rush to file a petition for reconsideration or removal.  Don’t – weigh the options first!

The remedies of removal and reconsideration are considered by all parties, including applicants’ attorneys, defense attorneys, and the defendants themselves – whether self-insured employer or an insurer.

But, sometimes there’s really no point, and good counsel means going over the reasons for the action as well as the likelihood of success.  If the goal is wheel spinning, then you’re doing something wrong.

In filing a petition for removal or reconsideration, it is VITAL that one follows the rules laid out by the WCAB.  The commission is currently sporting 2 vacant seats, and if you look at any workers’ compensation lawyer’s library, you’ll see that the Lexis CCC reporter tomes have grown exponentially from the first volume in 1936 to the 64^th in 1999.

Accordingly, even meritorious cases might be tossed aside for failure to follow the proper rules to allow the commissioners to address the flood of petitions.

In one recent case, Cheryl McMillin v. Monsanto Company, the WCJ, in his report and recommendation, pointed out two defects in the Petition for Reconsideration, and this serves as a wonderful opportunity to highlight these rules as a reminder to all.

By way of background, the defense obtained 3 dvds or 11 days of surveillance of the injured worker engaged in various activities including gardening.  However, these DVDs were produced to the applicant’s attorney nearly six months after being received by the defense attorney, despite repeated letters requesting all sub rosa video be produced.  Additionally, the QME appeared to be aware that the applicant engaged in these activities (as per the WCJ’s report), because the applicant had told him about them.  She further testified (consistently) at trial to engaging in light gardening and short driving trips.

The WCJ, in his report, highlighted two procedural defects with the petition for reconsideration.  The first was that Rule 10842(a): it is not enough to simply file for reconsideration and make legal arguments, the petitioner must make specific reference to the record and the exhibits.  To that end, it is important to diligently make a clear record at trial and to vocally (and sometime repeatedly) make objections known.

Rule 10842 also provides some helpful examples to how to cite to the specific record, and practitioners would do well to review these examples prior to drafting the petition.

Additionally, when alleging newly discovered evidence or fraud, Rule 10856 requires a detailed offer of proof as to the specifics involved.  It is, of course, very tempting to play one’s cards close to the chest and try to keep an element of surprise.  It’s almost romantic and charming in its mystique – “grant this petition, oh ye commissioners, and I will dazzle you with my powers in hearings to come…”

Rule 10856 requires the names of witnesses to be produced, a summary of the testimony to be elicited, a description of any documents to be offered, the effect the evidence will have on the record, and, with regard to newly discovered evidence, why the evidence could not be produced prior to the submission of the case.

Now, bear in mind, a lot of times this is pretty easy to do – if the injured worker says she can’t pick up more than 10 pounds, and, after the trial, she thinks she’s home free and participates in a weightlifting competition, then you probably couldn’t obtain video of the events before they happened.

The petition also apparently cited an unpublished decision.

Let this be a cautionary tale for all of us that zealous advocacy must be tempered with due respect and regard for rules and procedures, for the applicants’ bar as well as the defense.