So, as this humble blogger’s beloved readers are very well aware, California Code of Regulations section 9792.6, subsection o, requires a primary treating physician’s “Request for Authorization” of medical treatment to be made on a PR-2 form “or in narrative form containing the same information required in the PR-2 form.”  In fact, the Workers’ Compensation Appeals Board, in Cervantes v. El Aguila Food Products (2009; en banc) held that, at least for spinal surgery, a request for authorization “must comply with AD Rule 9792.6(o)”.

So then, consider, the curious case of Stefano Musetti (Musetti v. Golden Gate Disposal & Recycling).  There, applicant’s primary treating physician requested authorization for total knee replacement surgery.  Although the PTP used the PR-2 form, he did not check “surgery or hospitalization” or “request for authorization.”

The report, dated September 20, 2012, was served on defendant by applicant’s counsel on October 26, 2012, and then the defendant objected, and wrote to the panel QME requesting his opinion, on December 4, 2012.  So, assuming 5 days for mailing, defendant received the “request for authorization” on October 31, and waited until December 4, 2012 to request a report from the PQME.

The WCJ, over defendant’s objection, allowed an expedited trial on the issue to go forward, and then found that “Defendant has been in receipt of this report and has delayed in forwarding the report to the panel QME,” and awarded the surgery.

So, in short, the primary treating physician didn’t properly fill out a PR-2 form, and the defendant took too long, by waiting one month, in forwarding the report to the PQME.

In reviewing the case and denying defendant’s petition for reconsideration, the WCAB reasoned that the issue of whether one month was too long to wait should not have been reached, because defendant did not first conduct Utilization Review.  But was there an obligation to refer the faulty request for authorization to UR in the first place?  After all, if the doctor had faxed a post-it note with the applicant’s name, the doctor’s signature and the word “TKA” (Total Knee Anthroplasty) to the defendant… would that have counted as a valid request for authorization?

Well, the WCAB noted that “by the time of defendant’s November 18, 2012 [objection] letter, however, defendant had apparently examined Dr. Forster’s request and realized that he was seeking authorization for surgery.”

So, what do you do when you have a faulty request for authorization?  According to this panel opinion, what you DON’T do is engage in half-measures: Either ignore it like you would a post-it note faxed to your office, or process it through Utilization Review and proceed with IMR.

By writing an objection or going to a PQME, or doing anything that would seem prudent in a reasonable world and a fair system, you are acknowledging that you understand that this is a request for authorization of treatment, and the reasoning of Cervantes falls away (“Rule 9792.6(o) … recognizes that claims adjusters routinely receive numerous medical reports from treating physician.  Therefore, if in a spinal surgery case a particular report might trigger the 10-day deadline for a defendant to both complete UR and make a section 4062(b) objection, then the defendant should be given clear notice that authorization for spinal surgery is being requested.”)

But, remember, dear readers, the WCAB also bent over backwards to accommodate an applicant in the matter of Valerie Morales v. General Design Concept, where the WCAB treated the applicant’s DOR as an objection to Utilization Review, allowing the applicant to then request a PQME opinion on the issue of medical treatment, even though the time to make a specific objection to the UR determination had gone the way your humble blogger’s youth and optimism.

So, no “gamesmanship” – once you realize this is a request for authorization, put it through UR before you do anything else.  And, if your claims office or defense firm has a long procedure before incoming mail reaches the desk of the adjuster or attorney handling it, perhaps protocols should be put in place to highlight PR-2s or medical reports that request authorization.

Your humble blogger knows, full well, that insurance is expensive.  Workers’ compensation insurance in California can be particularly crippling to a small business’s budget.  If your business cannot afford to pay the electric bill, then you probably can’t afford to have a business.  The same goes for workers’ compensation insurance:  you cannot afford to operate without it.

Recently, a Monterey Employer was caught and cited for not having insurance.  The transmission shop was investigated and cited, and the owner had to pay heavy fines, obtain insurance, and serve one day in jail (and submit to 3 years of misdemeanor probation).

And he was lucky.

He was very lucky that what brought this issue to light was a general investigation and citation and not an injured worker.  Just like the guy who gets cited for not wearing a helmet while riding his motorcycle is lucky that it was a traffic stop and not a fatal accident that highlighted the need for protection.

If this employer’s uninsured status came to light when his employees sought medical treatment following an injury, it would have been too late, and neither bankruptcy nor the corporate shield would have protected his assets, nor all the king’s horses, nor all the king’s men, nor all the king’s lawyers and attorneys, zealous and diligent though they might be.

A lot of uninsured employers don’t know they need insurance – they think they’re staffed entirely by independent contractors (“by agreement”) or that a generic “business insurance” or providing health insurance satisfies the employer’s obligation.

Tell your friends and relations: if you have an employee, you need to be insured, self-insured (individually or as part of a group), or make those employees officers or partners.

Take a look at your files, do you have a certain PQME on any of them?  A certain… Ajit Singh Arora, M.D.?

It looks like Dr. Arora was reprimanded by the Administrative Director’s QME discipline unit for engaging in ex parte communication with applicant’s counsel.  Apparently, the PQME engaged in “ex parte communication with applicant’s attorney regarding the fee for his deposition, and notification that his deposition would be cancelled because he had not received advance payment in the amount he had requested.”

Ex parte communication between a panel qualified or agreed medical evaluator and one of the parties is a serious issue.  Attorneys often try to brush it off with words like “clerical” or “minor,” but the damage is done not necessarily by the communication itself, but by the damage it does to our entire medical evaluation system.

The Labor Code tells parties to workers’ compensation matters that they must forfeit their rights to due process: one no longer has the right to put on witnesses, to offer evidence, to rebut the claims made, and instead must rely on state-provided witnesses (PQMEs) or to present evidence only by permission (AMEs).

On top of that, parties cannot cross-examine expert witnesses before the Judge in open court – all medical-legal discovery is relegated to reports and depositions, even though the WCJs are charged with determining the credibility of the witnesses, which is more effectively done in person.

To add to that the idea that we’re going to wink and nod or offer no more than a slap on the wrist to those who impeach the limited credibility of the PQME system does no favors to this process.  When QMEs are given temporary suspensions for engaging in ex parte communication, it naturally stokes the paranoia of those convinced that the panels are already stacked against them with biased physicians (you know who you are).

In any case, we as a community should be diligent about ex parte communication – whether the doctor calls you or opposing counsel, it should always be made known to the other party and reported to the Medical Unit, and the Medical Unit should be diligent about weeding out QMEs who think that they get to decide what type of ex parte communication is acceptable and what type isn’t.  We’re in the age of e-mails and facsimiles – there’s no reason why all communication can’t be made simultaneously to all parties.

So, dear readers, are you interested in a crackpot thought your humble blogger had as he sipped his Diplomatico Rum and glared menacingly at the outside world?  If your humble blogger were to call a QME to set up an evaluation for an applicant, would that be ex parte communication?

After all, the panel opinion in the Lewis Cunningham v. County of San Bernardino matter concluded that contact between an attorney and a Qualified Medical Evaluator was not ex parte communication when the substance was to facilitate a deposition or obtain a copy of an echocardiogram report.

Even the fateful Alvarez decision concluded that “an ex parte communication may be so insignificant and inconsequential that any resulting repercussion would be unreasonable.”

Well, Labor Code section 4062.3 requires all communication between a PQME and a party to be in writing and either sent to the other side before an evaluation or at the same time as to the PQME (and presumably from the PQME to both sides).

But look down at subsection (f), which specifically excludes from the definition of ex parte communication “[o]ral or written communications … with the agreed medical evaluator, relative to nonsubstantial matters such as the scheduling of appointments, missed appointments, the furnishing of records and reports, and the availability of the report.”  There is no corresponding provision for panel qualified medical evaluators, just AMEs.

Interestingly enough, if we look at Labor Code section 4062.3, subsection (f) from any time prior to January 1, 2013, we find the following instead: “[e]x parte communication with an agreed medical evaluator or a qualified medical evaluator selected from a panel is prohibited.”  In fact, the entire Labor Code section fails to use the terms “inconsequential” or “nonsubstantial” even once.

So, dear readers, what is the take-away from all this?  Your humble blogger submits to you the following thought:  Because the Legislature reviewed and amended Labor Code section 4062.3, making changes effective January 1, 2013, it specifically rejected the notion that there might be “inconsequential” or “nonsubstantial” ex parte communication with a panel qualified medical evaluator.

In other words, all panel and case authority which suggests that there is any communication with a panel qualified medical evaluator that (1) does not need to be in writing; or (2) can be done on an ex parte basis is superseded and invalidated by the latest amendments to the Labor Code, effective January 1, 2013.

Now, my readers should recognize that when an applicant’s attorney does this, it is ex parte communication, is punishable by fines, fees, penalties, sanctions, a new panel, and the attorney has to offer a written apology and provide video footage of him or herself standing in a corner weeping gently.

On the other hand, when a defense attorney does this… “come on! It’s just a harmless scheduling discussion.”  For authority supporting this position, other than just because Greg said so, please see… [citation needed].

Your humble blogger wishes you a good weekend, dear readers!

Hello to my beloved readers!  To those lucky few that won’t see this post until Friday (because you’re happily out of your office) I say congrats and enjoy.  To those poor devils chained to their desks like this humble blogger, I say to you don’t give up – some day we too will have an independence day!

As everyone knows, July 4th celebrates the defeat of alien invaders by Jeff Goldblum and Will Smith, as depicted in this video.

Here’s hoping you have a safe and happy 4th of July and get a chance to enjoy the sunshine and the BBQ grills.

Research by the good folks at the California Workers’ Compensation Institute shows that opioid painkillers in California are at an almost all-time-high (get it? high? because of the drugs…) rising to almost 8% of all outpatient drugs dispensed to injured workers.  Among those prescribed are: Oxycodone, Morphine, and Fentanyl.

So why the spike?  Why are workers today getting more drugs?  Why are doctors today prescribing more?  Hasn’t medical technology improved to provide more treatment?

It’s also not like injuries are worse today than they were ten or more years ago:  there’s more safety equipment, more incentives to keep workers safe, and a lot of the dangerous manufacturing jobs are gone to states and countries that want to attract employers.  After all, as Frank Sobatka said, “you can’t get hurt if you’re not working.”

Well, your humble blogger is going to guess the answer boils down to money.  The doctors have found they make more money rubber-stamping prescriptions and limiting face time, or the employees have found they make more money faking pain and selling the drugs (or both).  After all, it’s a victimless crime (unless you consider the insurers paying for the drugs and the people illegally getting them to be victims).

The solutions are already there – employers insist on drug tests to make sure the employee is actually taking the drugs prescribed (whereas it used to be to make sure the employee wasn’t on drugs); or sometimes prescriptions might be given in smaller amounts more frequently, to require more frequent check-ins and supervision.

But it isn’t working – the opioid painkillers now make up 20% of the workers’ comp prescription payments, and those numbers seem likely to go up as time goes on.

Can Serious and Willful Misconduct be expanded to include the actions of a drunk employee?  Can the theory include allowing an employee to remain at work?

That was the question posed by the recent writ denied case of Sandra Ellefson v. County of Los Angeles.

There, the employer was aware that an employee was drinking at work, and had been dealing with a drinking problem for 17 years.  Applicant had seen his drinking, and complained about abusive behavior (pinching, pushing, pulling her hair, stepping on her toes) to everyone short of Santa Clause, including her own supervisors and Drunky McDrunkerson’s supervisors too.

Things moved swiftly, as they often do in government, and four months later applicant still sat facing Mr. Al Caholic’s desk.

The employer’s witnesses, however, testified that they were only informed of the drinking problem, and not the abuse, and that their efforts were focused on getting the poor guy into treatment (FOR SEVENTEEN YEARS).

Ultimately, while walking around drinking Tequila, Sir Drinkalot tripped, fell on applicant, and caused her chair to break, which then in turn caused her to hit her face on her desk.  After resolving her case-in-chief, applicant also pursued Serious and Willful Misconduct penalties, which the workers’ compensation Judge denied.  While the defense was apparently celebrating their victory at Happy Hour, applicants’ counsel filed a petition for reconsideration.

Generally speaking, your humble blogger disfavors rulings or findings that are adverse to a defendant.  But in this case, I can’t help but side with the Workers’ Compensation Appeals Board in its finding that defendant had committed serious and willful misconduct by ignoring the repeated complaints (remember, dear readers, the County of Los Angeles had been “dealing” with Mr. McCrunk’s drinking at work for 17 years!)

There was, however, a dissent: Commissioner Moresi made the point, as was made by the WCJ, that because of the 17 years without any injury, the employer had no reason to expect any injury to other employees.  Al was just being Al, and there was no reason to connect the dots between a habitually inebriated employee and actual injury (if this bomb hasn’t exploded yet, why would it ever?)

In all fairness, this is a valid point – time had effectively proven Mr. Barfly to be relatively harmless.  But, then again, the day before Thanksgiving, each turkey is more convinced than ever that it is loved and perfectly safe, based solely on the events of the preceding 364 days.  We all know that Thanksgiving is coming sooner or later.  The past 17 years were a windfall for the employer – it had allowed a worker to remain perpetually drunk at his post and had avoided the likely consequences of his inebriation: injury to himself or others.

By the by – does no one care that the County of Los Angeles has had an employee at his post, drunk, for the last 17 years?  The opinion even notes testimony that supervisors had noted unfinished work, clear mistakes, and slurred speech.  And now the good citizens of Los Angeles County get to ask their elected officials why the penalties are being taken out of the budget instead of going to another project.

In any case – if you’re an employer, please, please, please don’t let your employees remain at work drunk.   Send them home, discipline them, fire them, get them into treatment – do whatever.  But don’t expose your employees, your customers, or even your management staff to what could easily happen when a person drinks too much.

Cheers!

Your humble blogger hopes that his beloved readers, thirsty for knowledge and patient in its method of delivery, would care to read this post about liens.  On the bright side – it is yet another opinion where the mighty fist of justice crushes the hopes and dreams of several lien claimants, so that’s something to be happy about.

In case your patience is running out, the basic thrust is this: it doesn’t matter who sets the hearing, or how the hearing is labeled – if the main subject of a conference is liens, then the conference is a lien conference, even if it is noticed as a Mandatory Settlement Conference, a Status Conference, or even Happy Hour at the Board.  Don’t believe me?  See rule 10770.1(c).

The panel decision of John Anderson v. Eco Building System addressed this very issue.  The Workers’ Compensation Judge set the claims of several lien claimants for what was noticed as a MSC, so, naturally, defendant’s request that the liens be dismissed for failure to pay a lien activation fee pursuant to California Code of Regulations section 4903.06 was denied.

But here’s the thing – whether or not the hearing is a lien conference, requiring the payment of a lien activation fee, is not up to the Judge.  There is no discretion, and lien claimants MUST pay to play, long before they waste defendant’s money with billable hours and travel expenses.

Also, the WCAB noted that the time to appeal – to petition for reconsideration or removal – starts to run from the date of a writing of an order: Order, Award, Minutes, something!  It doesn’t matter how clear it is to the parties what the decision of the judge is.  Until a writing is filed and entered into the record, the clock doesn’t start on any appeal.

So dear readers, as you head into your weekend, smile: there’s yet another pitfall for lien claimants on their way to extorting money from the defense.

Unfortunately, the reforms of SB-863 decided that they must be at least somewhat limited in the wrath visited upon the lien claimant community – if there is more than one injury claimed, a lien claimant need only pay one activation fee pursuant to Rule 10208(a) (“where one or more liens or one or more costs filed as lien is filed in one or more cases involving the same injured worker and same service or services by the same lien claimant, only one lien activation fee is required.”)

Accordingly, in the case of Elia Hinks v. Pavlo, Weinberg & Associates, the Workers’ Compensation Appeals Board reversed the Workers’ Compensation Judge’s dismissal of a lien when the lien claimant had paid the activation fee in a companion case which had been dismissed (apparently without the lien claimant’s knowledge).

So the WCJ dismissed the lien, and the WCAB reversed… but the panel opinion doesn’t make clear whether the lien claimant presented proof of payment at the lien conference for either case.

Now, your humble blogger isn’t as dumb as he looks – he gets it: lien claimants don’t have to pay a separate fee for every ADJ number matching applicant’s name and date of birth to get a seat at the poker table.  That’s fine… except that the lien claimant seemingly failed to provide proof of any payments, even though one had in fact been made.

It’s entirely possible that in this case, the lien claimant actually did provide the proof of payment and it is just not specifically mentioned in the panel opinion.  In any case, even if the lien claimant pays the activation fee in another case, it is still the lien claimant’s burden to prove proper and timely payment at the time of the hearing.

If you find yourself in the same scenario, it might be a worthwhile argument to bring up.

Are you sick and tired of that gloomy intersection where pro-sports and workers’ compensation reluctantly meets?  Well too bad, because there’s more!

Now, I’m not going to bore you with all the details in the recent en banc decision from the Workers’ Compensation Appeals Board, Wesley Carroll v. Cincinnati Bengals.  Here is the skinny on that case: injured pro-sports player Wesley Carroll filed a claim in California after playing some 6 games in California (out of a total of 48; 12.5%).

The Workers’ Compensation Appeals Board found that one of the teams, the Cincinnati Bengals, was exempt from California’s crushing, ruthless, and back-breaking workers’ compensation system thanks to that coveted escape route of Labor Code section 3600.5.

As you may recall, section 3600.5 allows an out-of-state employer to escape California comp jurisdiction if:

1. The employee is only “temporarily” in California;
2. The employee is covered by extra-territorial insurance (meaning the policy applies to the worker even when he or she is out of the state in which he or she normally works);
3. The laws of the state where the employee is normally employed are “similar” to those of California; and
4. The state where the employee is normally employed has a reciprocity rule with California.  In other words, California keeps its hands off state X, and state X keeps its hands of California employees injured in state X.

Ok, so, why do you care?  After all, it looks like these claims might go the way of the dodo soon enough if certain legislation makes it through the Sacramento maze.  And, even if that fails, there are about 1,700 pro-football players in the United States, some of which are employed in California.  Compare that to almost 16 million people employed in California alone.  Why does this opinion matter to those of us who don’t represent or handle pro sports cases?

I’m glad you asked! (You did ask, right? This slowly unraveling blogger could have sworn he heard a voice ask…)

If we forget about the fact-specific ruling of the Carroll opinion, what is the average person left with?  The WCAB is telling us, in a binding authority opinion, the following:

A person who spent 12.5% of his time in California and the rest employed elsewhere is in the state only temporarily.  As is 15.7% (5 of 32 games played for the Bengals).  In fact, the language of the opinion lends itself to the theory that, even if applicant had spent 99% of his time in California, so long as he had the intent to leave California after his task was completed, he could still be regarded as only temporarily within the state.

Another holding to keep for future need is the WCAB’s opinion with respect to Ohio.  The WCAB here concludes that Ohio recognizes the extraterritorial provisions of other states; and that Ohio exempts California employers and employees from its own workers’ compensation system, thereby satisfying the elements of section 3600.5.

So, if you’ve got an Ohio employee temporarily in the state for a conference, recruiting, training, or a short-term project, you can rely on this opinion to help you raise the 3600.5 defense.  (Note: in a similar case, California jurisdiction was denied based on a forum selection clause.  See: Dennis McKinley v. Arizona Cardinals)

Now here’s something interesting – the WCAB ordered the Bengals dismissed and sent the matter back down to the Workers’ Compensation Judge for further action on this issue.  But what could be left to litigate about?  Well… there’s also the New Orleans Saints.  The opinion doesn’t offer much about the fate of the Saints, but it will be interesting to see the defense the Saints intend to mount (if any).