Author Archives: Gregory Grinberg

In-Person Walkthroughs (and the Humble Blogger) are back!

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Happy Monday, dear readers!

Your humble blogger is back from his sojourn and is finally resuming his duties as the humble blogger, a post left mournfully vacant for the last few weeks.

Well, the news I bring today isn’t happy news at all, at least as far as your humble blogger is concerned.  The Department of Industrial Relations has announced the return of in-person walkthroughs effective September 6, 2022 (except in Eureka), and the end of the LifeSize virtual walkthrough.

Next month, we will be doing our walkthrough as we did many years ago… putting on not just suit jackets and ties, but pants and socks and shoes as well.  We’ll also have to travel down to the boards themselves.

Of course, the option remains to e-file the settlements NOT as a walkthrough but your humble blogger must object to this shift.  Settlements are not meant to be contentious or litigation.  They represent a resolution of a dispute – musical chairs with enough chairs for each player; everyone’s a winner!

With remote walkthroughs, parties had an efficient way of getting settlements approved promptly.  This was done without the added cost of a physical appearance and travel.  It was done without the risk of spreading COVID, catching COVID, or adding to the statistics for car break-ins and spiraling violent crime in the Bay Area. 

Hopefully, the DIR will see that remote walkthroughs were significantly more efficient and ended up with more file closures and return to virtual walkthroughs.  At the very least, your humble blogger respectfully submits that virtual walkthroughs should remain an option.

The only bright side to all this, as far as your humble blogger is concerned, is that now we have the option to walk through more than just settlements – petitions to compel depositions and QME examinations are also open.  Further, appearing in San Francisco will give your humble blogger an excuse to visit the very best Chinese Food restaurant in the known world, Henry’s Hunan.

Your humble blogger is happy to be back, dear readers – thanks for sticking around to wait for me!

Another Doctor Convicted – Time to Check Those Liens and Bills!

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Here we are again, dear readers!  It’s Wednesday, so what better time to check your MPNs and list of liens for any bills from a certain Gary Wisner, M.D.

Very recently, a jury trial in Sacramento returned a guilty verdict against Gary Wisner, M.D., an orthopedic surgeon, for health insurance fraud.  The allegations in the charges including hundreds of unnecessary x-rays, some to body parts unrelated to the medical condition or claim. 

What does this have to do with workers’ compensation?  Why is your humble blogger clogging up your inbox with this story?  Well, the San Joaquin County District Attorney has filed charges against Dr. Wisner for workers’ compensation fraud as well.  While there is no conviction at this time pertaining to workers’ compensation fraud, and it would fly in the face of our legal system to assume anything other than Dr. Wisner’s innocence in this regard absent a conviction, perhaps it’s time to check the books?

As President Ronald Reagan was often credited with saying, “trust but verify.”  If you have pending bills from Dr. Wisner, now would probably be a pretty good time to look into them to make sure that treatment was rendered for the accepted body parts, within the MPN, and properly performed and documented.

Further, we might all benefit from remembering that so much of a legal determination turns on the credibility of the involved parties.  When an award is based on a document made under penalty of perjury from a physician, and the court has reason to believe that such a declaration is suspect, the weight of that document should decrease accordingly.  Your humble blogger submits to you that once a person has been convicted for fraud, that person’s credibility in all things should be questioned.

Until next time, dear readers.

WCAB: Applicant Failed To Carry Burden on New and Further

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Happy Monday dear readers!

I don’t mind sharing with you that not much warms the cold, dark heart of a workers’ compensation defense attorney like the proper application of the statute of limitations.  Isn’t it enough to bring a tear to one’s eye?  This is particularly the case when a petition to reopen for new and further disability is denied on those very grounds.

New and further petitions are those frustrating things in our beloved swamp of workers’ compensation that can drive a person mad.  After all, even when you’re done with a case… you’re not really done.  One can picture Michael Corleone receiving a petition to reopen and saying boldly to the camera “Just when I thought I was out… they pull me back in!”

Well, allow me to submit to you the panel decision in the case of Rodriguez v. Southland Care Center.  There, applicant resolved her workers’ compensation claim for a 2008 injury via stipulated award, only to reopen it in 2013.  The original injury was orthopedic in nature as to the left foot, bilateral ankles, left knee, left hip, low back, and psyche. 

A true testament to the longevity of these claims that 14 years later litigation is ongoing.  Can you picture a father sitting at a conference room table with his daughter, lovingly handing over a file… “I received this referral when you were just starting high school, and now that you’ve finished law school, I can pass this on to you.”  Such moments really are what parenting is all about. 

Well, as parties tend to do, they returned to the AME who determined that the industrial condition was stable and unchanged from the prior P&S report.  But applicant had arguments of her own to push the petition: the AME did not order any diagnostics, so his report can’t possible be substantial medical evidence… and what about her diabetes that was aggravated by her condition? And what about her right knee surgery in 2014?

Well, after discovery and trial, the WCJ dismissed the petition to reopen, reasoning that the medical reporting from treating physicians ostensibly supporting additional disability (particularly as to the diabetes) was not obtained until AFTER the five years from the original injury had run.  In short, even if applicant testified to existing complaints prior to the five-year mark, the medical evidence supporting that contention was not obtained until after the statute had run.  Nor is there any absolutely requirement to obtain testing if, in the opinion of the medical expert, that testing is not necessary.

Can you imagine, dear readers, if a medical report for an industrial paper-cut was held to be not substantial evidence because there was no MRI of the finger ordered?

In upholding the dismissal, the WCAB held “[a]n injured worker cannot confer jurisdiction on the WCAB by filing a petition to reopen before the five-year period has expired for anticipated new and further disability that may occur after the five-year imitation period has run.”  There was no evidence in existence prior to the 5-year mark that the right knee was part of the claim, whether as an original injury or a compensable consequence.  There was further no evidence that the diabetes was related to the industrial injury or that the disability arose within five years from the original injury. 

Despite what so many applicant attorneys would love for us all to forget, the applicant still bears the burden of proof on many aspects of his or her workers’ compensation case.  Among those, that there is new and further disability – merely filing a petition does not shift the burden to the defense to disprove new and further disability.  How silly would it be, dear readers, if the filing of a defense petition to reduce permanent disability would shift the burden to applicant to prove no improvement?

Additionally, it is important to remember that even if a petition is filed four years and 364 days after the original date of injury, that is not the time for applicant’s counsel to roll up his or her proverbial sleeves and go trolling for evidence: the evidence of new and further disability must exist prior to the five-year mark.  Not all of it, mind you, but enough contemporaneous evidence for a subsequent med-legal to find the disability existed prior to the running of the statute. 

Not a bad way to start the week, dear readers.  Straight on till Wednesday!

Are We Loving the Med-Legal Fee Schedule Yet?

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Alrighty dear readers!  Here we are again, celebrating Adams Family Day Wednesday with just another day ready for fun.  So since last blog post was about a current favorite TV show, I thought I’d share with my readers a favorite oldie movie of mine too: In 1992 two parents are abducted onto a planet of intellectually challenged denizens and get involved in a civil war to help the good guys regain the throne of the planet.  The movie was called Mom and Dad Save the World and if you haven’t seen it yet I highly recommend it!

Anywho, one of my favorite lines in that movie is when one of the good guys is trying to rally his people to help him storm the castle and tells them “what we lack in intelligence we make up for in good intentions.”

So, anyways, let’s take a look at the current med-legal fee schedule.  In a supreme bit of irony, the fee schedule went into effect on April Fools’ Day in 2021.  Now that we’ve had it for over a year, what results can we see from this new system?  Did the extra money attract the top physicians to write excellent reports and minimize the need for more med-legal services?  Are cases now resolved more expeditiously with an accurate level of benefits and lower costs for employers?

Come on people – it’s been over a year! Certainly, there are now lots more QMEs so that the wait times are lower and the reporting is more consistent, right?

Well, the CWCI has prepared a study reflecting that compared to 2019, there’s been more than a 50% increase in payments for face-to-face exams and almost 40% for supplemental reports.  $3 per page in review as per the fee schedule has also drastically increased the cost of an initial exam by almost $2k. 

According to the CWCI, the fee schedule resulted in a 3% increase of QMEs in the active evaluator pool as compared to 2022 and 1% less than 2019!  In other words, the new fee schedule has enriched existing QMEs with huge fees, but has not attracted more QMEs to the industry. 

The new regulations have also failed to provide recourse for employers when reports are not substantial medical evidence or to recoup costs.  There is practically no disincentive to produce intentionally vague or incoherent reports to entice parties to depose the doctor or seek a supplemental report, generating more fees for the doctor and more costs for the defense.  We all recognize those doctors on our panels that will force at least three evaluations, four depositions, and seven supplemental reports before there’s enough in the record that you can get a ruling other than “develop the record.”  Looking at you, Dr. Nick Riviera…

via GIPHY

Of course, this is great for the applicant bar – the more expensive the claims process is due to med-legal fees the more inflated the “nuisance” value of each claim is.

But, before you become dismayed, dear readers, please recall that wonderful line from Mom and Dad Save the World as referenced above.

Till next time, dear readers…

On Yellowstone Ranch and WC Fraud

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Happy Monday, dear readers!

Your humble blogger trusts you are soaking in the summer sun, enjoying the fresh air and relaxing atmosphere that pervades when we are not all cooped up inside during the cold weather.

But, when you aren’t outside enjoying the sun, what’s good to watch on TV?  Your humble blogger’s current favorite show is Yellowstone, where Kevin Costner holds on to a family ranch against all sorts of adversaries, reminiscing of simpler times when he would dance with wolves, bring America back from an apocalyptic hellscape by delivering mail, or adapt the plot of Mad Max to an aquarium.

So, having found a show I really, really like, I was hurt to find out that one of the actresses on the show, who plays a lawyer of all people, has been charged with workers’ compensation fraud!

Now, your humble blogger doesn’t like to name names, but if you’re really curious about who has been charged, feel free to follow this link.  The actress is charged with felony workers’ compensation fraud and the allegations are that she received almost over $95,000 in temporary disability benefits, but also worked on the set of Yellowstone for four episodes.

Of course, the actress denies that she did anything wrong and has retained counsel, and, as it should be – the burden remains squarely upon the prosecution to prove its case beyond a reasonable doubt, and, until then, she is presumed not guilty.  That being said, there are some parallels we see in situations similar to this without the glamour of Hollywood as a backdrop.

How often, dear readers, have you read a deposition transcript wherein a construction worker will claim to be temporarily disabled until he finds work, and the moment a project is finished he goes back to TTD claims until the next project comes along?  How often, dear readers, have employers been unwittingly dragged into contribution proceedings because their new hire was actually on TTD for a prior employer, and then that prior employer claimed that the post-injury work has aggravated the condition?

Some workers use TTD benefits as stopgaps for being out of work – not for periods of medical recovery as intended, but for periods where work is unavailable.  The consequences are dire for employers of course – added litigation, aggravated injuries, contribution proceedings.

Your humble blogger certainly hopes the truth will come to light in this Yellowstone case and justice will be done, but this case, particularly with its prominence due to the greater context of a popular TV show, should remind us all to be extra vigilant when TD seems to be going on for a little bit too long.

Now, if my beloved readers will excuse your humble blogger, I’m going to go get fitted for a litigation-appropriate cowboy hat and get ready to catch the 6666 spinoff when it finally comes out.

Until next time, dear readers!

AB-5 Claims Another Victim: Truck Drivers

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Happy Monday, dear readers!  Your humble blogger hopes your summer is moving along swimmingly and that good weather and good times litter your every evening and weekend.

But, and it brings me no pleasure to do so, I have bad news to deliver!  California’s AB-5, which seeks to force every Californian into either being an employee or an employer, often against the will of all those involved, has claimed yet another victim.

Back in January of 2020 (remember those days, dear readers?  That’s when Corona was a beer and remote working was how quickly you paused the movie when someone called for a bathroom break) your humble blogger reported that a Los Angeles Judge ruled that AB-5 was pre-empted by federal law in so much as it sought to destroy the owner-operator truck drivers of California. 

Truck drivers protested AB-5 heavily when it was first passed into law, including by circling around down town San Francisco blaring their horns repeatedly.

Well, the 9th Circuit Court of Appeals had lifted the injunction against enforcement of AB-5 as to truck drivers, and at the end of June the United States Supreme Court declined to hear the California Trucking Association’s appeal, meaning that the injunction is now lifted.

The final result for California?  It appears that truck drivers will likely be able to proceed as employees, including in term of workers’ compensation.  Those that previously engaged their services will have to act accordingly to the increased risk and raise their prices accordingly as well.

Just to put this all into context for my beloved readers: the Legislature in Sacramento was on a witch hunt against UBER and Lyft and decided to go on a thoughtless rampage, crushing various industries and people in the process.  Independent truck driver/operators were NOT victims of some evil plot to exploit them, and often found themselves willing to volunteer time to protest and money to litigate to protect their livelihoods.  It is entirely unclear who the Legislature sought to protect in having AB-5 expand to countless industries, including trucking!

Besides the damage done to independent truck drivers, the damage will be felt by the rest of us for many years to come.  Although your humble blogger loves shopping at Whole Foods, for example, I am well aware that there is no farm on the roof of every Whole Foods location: food is brought in, almost always by truck.  California’s AB-5 has made delivering products from farm to shelf MORE expensive, and that expense will be paid on every grocery store shelf. 

Your humble blogger wishes and hopes and prays that sanity will return to Sacramento.  Of course, your humble blogger has also seen Smokey and the Bandit II and is well aware what happens to those that use laws to incur the wrath of truck drivers…

Article Claims Automation Increases Mental Health Claims

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Happy Monday dear readers!

Here we are again, ready to face another week of denying benefits, litigating minutia, and, most important of all, never stopping once to reflect of the purpose of life and our role in it, lest we lose all sail from our winds.

With that in mind, your humble blogger – as is widely known and never denied – is a big fan of automation and the application of technology to avoid and mitigate injury.  But, not everyone is so inclined.  To quote South Park – “dey tuk ur jerbs!”

There are many people, as there aways have been, that are threatened by change or see the necessity of labor being done safely, cheaply, and with less overall harm as a negative.  After all, if your entire livelihood depends on the suffering of injured workers, you might hesitate to see the gravy train come to a stop.  As a workers’ compensation defense attorney, your humble blogger likely falls into that category as well.  If only there were some way to monetize lame puns and dad jokes, a field in which your humble blogger has no rivals.  As soon as that happens, I will have no hesitation about welcoming our robotic overlords to the world!

Anywho, your humble blogger stumbled upon this article from The Hill, bemoaning the dangers of automation.  This time, the Hill would have us believe that “American workers who work alongside robots are more likely to suffer negative mental health effects.”  The mean robots are making us sad?

The gist of the article is that the risk of being replaced by automation will stress out workers leading to mental health issues.  But what about the stress of spinal cord fractures or losing a hand to heavy machinery?

In your humble blogger’s estimation, this nay-saying is nonsense.  Even if you take everything as true – that automation will lead to an increase in mental health complaints – I would certainly rather deal with the fallout of these injuries – whether as a worker, employer, or insurer – than with the fall-out of the serious injuries automation tends to prevent.

Don’t let such articles misguide you, dear readers – automation is the way forward.  It will result in fewer injuries, more productivity, and, ultimately, products to consumers at a lower cost.  Win-win-win.  Eyes on the prize, dear readers, and straight on till Wednesday!

About that SCOTUS Decision… no, the other one!

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Happy Friday, dear readers!

Well, we made it yet another week and the weekend is just around the corner.  So, I figured I’d take a “shot” at bringing you a relatively unorthodox blog post today, and it’s about guns!

Naturally, since June 24, 2022, when the United States Supreme Court issued its ruling overturning Roe v. Wade, almost all attention has been focused on that decision and understandably so.  Few issues in American political discourse trigger such strong emotions and such polarizing disagreements.  Further, the issue is rarely one that is hypothetical but has real world applications.  But for this blog post, I direct you to another decision: New York State Rifle & Pistol Association Inc. v. Bruen wherein the Supreme Court struck down New York’s law regarding concealed carry permits.  A law nearly identical to that of California.

Although the feelings regarding this decision are many and fractured, one area of near unanimous agreement is about the result – this ruling will increase the frequency of concealed carry permits issued to private citizens.  The California Attorney General issued OAG-2022-02 on June 24, 2022, directing that “[p]ermitting agencies may no longer require a demonstration of ‘good cause’ in order to obtain a concealed carry permit.”

As a result, are we going to see more firearms in the workplace?  May employers already have prohibition on bringing firearms to work, but some don’t or have no mechanism of enforcement given that the very nature of the issue is that it is concealed.

A reminder, dear readers, that Labor Code section 3208.3 has a lower standard for AOE/COE for psyche claims when the applicant sustains “direct exposure to a significant violent act” (from 51% to 35-40%).  In all likelihood, any violent act involving a gun is going to be considered a “significant violent act.”

Further, Labor Code section 4660.1 allows for increased permanent disability for a compensable consequence psyche claim where there is “exposure to a significant violent act within the meaning of Section 3208.3.”

In light of the high probability that a growing number of Californians will be carrying firearms on their person, employers may want to determine if the circumstances merit adoption of policy regarding firearms at work.  Being the cynic and devil’s advocate that he is, dear readers, your humble blogger can’t help but wonder if failure to proactively address the potential for firearms at work might lead to Serious and Willful Misconduct claims as well.

Now, all that being said, there are some advantages to having sane, trained, and law-abiding employees armed at work.  For example, in 2015 Syed Rizwan Farook and Tashfeen Malik allegedly carried out the San Bernardino massacre, murdering 14 and injuring some 22 co-workers in a horrific act of terrorism.  Not one of the victims was armed and all were rendered defenseless. Similar mass shootings in California have typically had a defenseless pool of victims.  But each employer will have to decide for itself, using its best knowledge of its employees and the dangers of the world, where the greater risk lies: in disgruntled employees and accidental shootings, or in intentional violence and no opportunity for mitigation. 

It is truly a sad thing that this is the calculus we are faced with, but face it with must.

So, on that cheerful note, your humble blogger wishes you a good weekend and hopes to see you back here early Monday morning!

Take-Home Covid in Play Again Before Supreme Court

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Happy Wednesday, dear readers!

I hope you aren’t tired of hearing more about COVID19 because there has been a new development in the Kuciemba case.  Although the See’s Candies case was sent back to the trial level by the Court of Appeal, with review of the remand denied by the Supreme Court, essentially the same question is to be addressed by the California Supreme Court at the request of the 9th Circuit Court of Appeal.

Back in April of this year, the 9th Circuit asked the California Supreme Court to address whether family members of employees could sue the employer directly for the COVID19 which was brought home.  If that’s a confusing set-up, the simple version is this: Jack goes to work and gets exposed to COVID19 at work.  Jack comes home and passes COVID19 on to Jill, who lives with him.  Jill suffers due to the infection and wants to sue Jack’s employer for negligently exposing Jack to COVID19, enabling him to expose Jill.

If that sounds familiar, that is the exact same path of liability as the California Supreme Court created for asbestos exposure.  The question remains if COVID19 will get the same treatment.

On June 22, 2022, the California Supreme Court granted the 9th Circuit’s request and it looks like this issue will be addressed directly.

In light of this, your humble blogger suggests employers take action now to prepare for the flood of litigation to follow.  For all known industrial COVID19 cases, documentation should be taking place of family members, dates of exposure, etc.  Employers might consider proactively settling any claim that is questionable and has been denied with a Thomas finding as soon as possible, rather than letting the denial stand and the statute of limitations run.

Finally, employers should be aware that the limited exposure for a healthy employee that bounced back from a positive COVID19 test with no more than a paid vacation quarantine period, might very well have family members that did not tolerate exposure quiet so easily.

From anecdotal evidence, your humble blogger has seen and heard of the administrative burden placed on claims adjusters to set up and properly document fresh COVID cases.  Employers may find themselves overwhelmed by the sheer volume of take-home COVID cases they are suddenly forced to address and would be well served by getting ahead of this now.

And, as always, your humble blogger urges you to loop in your workers’ compensation attorney into any preparation for defending potential civil suits – no harm is done by cooperation and coordination.

Nothing would make me happier to be absolutely wrong in this regard and for the Supreme Court to find that no such exposure exists and that COVID19 is not asbestos.  But, your humble blogger bears the curse of often enough being right. 

Now, let’s all get ready for what lies just ahead as best as we can.  Straight on to Friday, dear readers!

Happy Independence Day!

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We made it dear readers! Another holiday and another day off from our noble and proud pursuits of delivering justice and avoiding the miscarriage of the same. We few, we happy few, we band of workers’ compensation defenders.

So, enjoy the BBQ, have fun with your family, and please, please, please – enough with the fireworks!

Now, in case you’re wondering, today absolutely is a holiday, dear readers, so if there is a deadline to do something today, it is extended one more day until tomorrow, Tuesday, July 5, 2022. Don’t believe me? Well whether you consult the California Rules of Court or Government Code 6700, the result is the same.

In other words, celebrate living in one greatest countries in the world!

Until Wednesday, dear readers!