My dear readers may recall the tragic tale of Edward Idukas who was accused of committing workers’ compensation fraud.  This former police officer was recently sentenced to 120 days in jail after pleading guilty to two counts of felony workers’ compensation fraud.  Former officer Idukas was also ordered to repay $120,000 in restitution and has lost his job.

(Special thanks to Mr. T K for the tip)

It is particularly sad to see a law enforcement officer engaged in such behavior – this man was entrusted with a badge and a gun.  He no doubt participated in several investigations, possibly testified for the prosecution in various cases, and was responsible for enforcing the law.

Given his lack of commitment to the truth and honesty, how many citations could we suspect were handed out to fill a quota instead of to punish an actual violation of the law?  How many dollars will the state now spend fighting conviction appeals from criminals who will claim that Mr. Idukas’s testimony in their respective cases was invalid?

Hopefully, future diligence will prevent such enormous costs to the public and such stains upon the reputation of law enforcement.

So, dear readers, how are we feeling about the Independent Medical Review process?  It’s a coming pretty soon, and it won’t be long before the independent medical review board is handling all cases.

Under Labor Code section 4610.5, IMR is now the name of the game – no more medical disputes to be put to PQMEs, and just Utilization Review and the IMR to decide whether applicants get those medically-necessary hot-tubs and large-screen TVs to relieve from the effects of the latest paper-cuts and stubbed toes.

Now here’s an interesting question to answer: how enforceable is Labor Code section 4062.2, subsection (f)?  After all, that section says 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.”

So applicant and defendant are sitting there looking at a UR report which recommends that authorization for a recommended medical treatment be denied.  In theory, this can go to the IMR, but what if defendant or applicant proposes an alternative – “Hey, Jerry, why don’t we write a letter to the AME and have him address this instead?”

Well, why don’t they?

Sure, section 4062.2(f) says they can’t… but who is going to stop them?  If the applicant agrees, and defendant agrees, whatever the result will be, the time for conducting the IMR process will have passed by the time the AME report comes back.  And, after all, if either party goes back on its word… well… workers’ compensation is a fairly small community, and one doesn’t get many opportunities to break a promise to the same person.

After the panel process was forced on the workers’ compensation community as part of SB-899, many parties (even for injuries after 1/1/05) retained their own QMEs, and many workers’ compensation Judges turned a blind eye… perhaps we can expect the same thing for years to come?

Your humble blogger, as a zealous advocate for the workers’ compensation defense community, often has feelings of frustration when law enforcement, both on the local and the state level, appears dedicate to driving desperate businesses towards extinction while ignoring the blatant fraud and exploitation practiced by certain workers’ compensation fraudsters.

Being a man of the world, your humble blogger gets it – business have money that can be taken through fines and penalties, and employees just have receipts for how they spent the ill-gotten money as soon as they ill-gotten it.  Money helps pay salaries and retirement funds and gourmet coffee in the District Attorney’s break room, while pursuing employees just gets an unenforceable verdict and (possibly) some incarceration.

That being said, San Bernardino’s district attorney’s office seems to take a different tack.  Recently, Roberto Carlos Mendoza-Lazo was charged with Identity Theft and Attempted Perjury, after the Workers’ Compensation Fraud Unit began investigating his activities.  It was discovered that he was fraudulently using someone else’s social security numbers (that’s numbers, folks, not number, because they came from more than one person) and was receiving workers’ compensation benefits as well.

This is a common enough occurrence – someone who is in the country illegally will fraudulently obtain a social security number (or numbers) to obtain employment and benefits.  This has several implications for the benefits to which that person would be entitled under California’s workers’ comp system, but it is also a crime, one which some DA’s offices are not interested in prosecuting and deterring.

San Bernardino’s DA’s office is not the only one to help protect the employers from this type of fraud, but it deserves honorable mention none-the-less.  Good luck to DDA Scott Byrd with this case!

Can an employer compel an employee’s attendance at an evaluation by a vocational rehabilitation expert?  In the case of Charles Holz v. Gottchalks, the applicant noticed his intention to present vocational rehabilitation expert testimony in an effort to rebut the Diminished Future Earnings Capacity schedule (a la Ogilvie).  But, applicant also refused to be evaluated by the vocational rehabilitation expert that the defense would have offered in rebuttal.

The Workers’ Compensation Judge denied defendant’s request for an order to compel applicant’s evaluation, reasoning that there was no statutory authority under which he could do so.  So, defendant filed a petition for removal (why not reconsideration? See here… )

The Workers’ Compensation Appeals Board granted defendant’s petition, reasoning that the Labor Code (section 5708) and the Code of Regulations (section 10348) both grant pretty broad authority to the WCJs to take care of business.

Furthermore, your humble blogger would be willing to wager a good amount that any award that did not allow the defense to engage in discovery, offer evidence, and make a rebuttal, would be running on the wrong side of both the California and the Federal constitutional guarantee of due process.

How can anyone claim that a defendant has been given due process when it cannot present witnesses?  And, of course, if an expert witness is not given an opportunity to examine the relevant evidence (in this case, the applicant), how can that expert’s testimony be relevant and admissible?  (Bear in mind, dear readers, that as per Labor Code section 5703(j) the testimony of vocational rehabilitation experts is to be made in the form of reports and not direct witness testimony).

In this case, it looks like the defense agreed to have the applicant examined only be telephone, but why should it?  Seeing the applicant in a face-to-face setting is a pretty good way to gauge honesty and credibility, and would tip of the voc-rehab expert to more questions to ask or to re-ask for purposes of consistency assessment.

Another question is this one – if you, as the defendant, were persuaded that the DFEC schedule should be rebutted and that the applicant is entitled to a smaller DFEC factor, can you still compel an evaluation?  Even if the applicant doesn’t want to go the Ogilvie route?  We’ve seen Almaraz/Guzman go the other way on a few cases, and perhaps Ogilvie could favor the defense as well.

A DIR “Newsline”  heralds the dawn of a new age – well, not really.  Starting with January 1, 2014, temporary total disability rates will go up less than one percent, setting the new minimum at $161.19 and the new maximum at $1,074.64 per week.

Under Labor Code section 4453(a)(10, TTD is based on the percentage of increase in the state average weekly wage increase.  So the good news is that California’s average weekly wages went up!

How do you plan to spend your extra 0.74% in wages?

Have a good weekend, folks!

At long last, dear readers, the mighty (in its clumsiness) and speedy (in the sense of a snail’s pace) reach of SB-863 has come to knock on the door of the interpreters.  All those injured workers who spent their entire careers speaking English to employers, co-workers, and customers, sustained injury in the form of not being able to speak said language for purposes of litigating their claims.

We’ve all seen this – an interpreter is necessary if settlement falls through, and no longer necessary once it’s time to sign the documents.  (Maybe next time the Defendant will know to give in to the applicant’s unreasonable demands!)

The Department of Industrial Relations has released proposed interpreter regulations for public comment (they’re in English, by the way, so you may need an interpreter to read them.  But how much does that cost?  If only there were regulations out there that set out how much an interpreter could charge for his or her services…)

Among other changes:

1. Who can be qualified to provide interpreter services at hearings and depositions (section 9795.1.5); and
2. Who can be qualified to provide interpreter services at medical appointments (section 9795.1.6).

If passed “as-is,” defendants will be able to get rid of a few interpreter liens based on qualifications.  But your humble blogger would like to see some more teeth given to common sense with respect to interpreter liens:

Section 9795.3, subsection (a) holds that “[f]ees for services performed by a certified or provisionally certified interpreter, upon request of an employee who does not proficiently speak or understand the English language, shall be paid for the following events:”

How about some more burden on the applicant to prove that he needs an interpreter?  Your humble blogger happens to know some people very near and dear to his heart that would take great offense at someone assuming they need an interpreter simply because they were born elsewhere.

Your humble blogger would suggest that the regulations include some sort of formal procedure by which an applicant must first prove that the services were necessary.

But, none the less, cheers to the DIR for moving forward with implementing the new legislation, even if it is six months later.

Dark days, indeed, dear readers.  It just so happens that your humble blogger, in his cold, iron heart, has a pang of sympathy for the lien claimants.

Hold on, hold on! before you get to unsubscribing from the blog, burning my pictures in the streets in protest, and demanding that I return your subscription fee for all these years of your loyal readership (you get what you pay for, after all), hear me out.

Ponder, if you can, the case of Crispin Mendez-Correa v. Vevoda Dairy.  In that case, applicant self-procured medical treatment outside of a valid Medical Provider Network, and then the treatment provider came a-smilin’ with its bill.  The defendant naturally slammed the door in the lien claimant’s face and the matter proceeded before a workers’ compensation Judge.

The Workers’ Compensation Judge held that the defendant was not liable for the cost of the alleged medical treatment because of the MPN.  Accordingly, the WCJ put the lien claimant on the scent of the applicant, telling it to get its pound of flesh from the injured worker under Labor Code section 4605 (“Nothing contained in this chapter shall limit the ability of the employee to provide, at his or her own expense, a consulting physician or any attending physicians whom he or she desires.”)

Naturally, applicant became concerned – it’s one thing to play Scorched Earth and raise the costs for for the defense, tis another thing altogether to have to pay for such tactics oneself.

Well, upon his petition for reconsideration, the Workers’ Compensation Appeals Board decided that the date of the decision, May 13, 2013, shall henceforth be called “New St. Crispin’s Day,” and after a rousing and inspiring prelude, found, to some extent, both for the defendant and the applicant, although the meat of the holding appears to have been against the lien claimant for whom your humble blogger has some small amount of sympathy.

You see, the WCAB held that, because the lien claimant did not (or could not) prove that applicant intended to self-procure, section 4605 was not triggered.  At the same time, the defendant could not be held liable because of the valid MPN.  So, if the lien claimant cannot recover from the defendant and cannot recover from the applicant, it appears that the lien claimant cannot recover at all.

And here comes the most charming part of the opinion’s effect: lien claimants are repeat players, and know when there a self-insured employer or an insurance company has a valid MPN in place.  So, the lien claimant can risk going up against an MPN, or it can make the applicant sign a form acknowledging that the applicant is self-procuring.  However, if the applicant is knowingly self-procuring, as evidence by such a form or contract or note, then defendant is off the proverbial hook before the issue of an MPN is reached.

Buuuuuuuut… since no applicant is going to self-procure instead of treating for free within the MPN, the lien claimants can close their gold-plated, jewel encrusted, thieving, extorting, and workers’ compensation harassing doors.

Or, here’s another idea: let’s start treating liens like what they are, a lien on the recovery of the applicant.  Accordingly, when applicant settles a paper-cut claim for $50,000, let the cost of the $43 Neosporin and $65 Band-Aids for 35 consecutive visits come out of the recovery, as a lien would in any universe outside of workers’ compensation.

The long and the short of it is that when an injured worker is given access to an employer’s medical provider network, the non-MPN treators assist in the scorched earth and expert shopping of applicant’s attorney’s at their own peril.

And to think, if the lien claimant’s prices were reasonable to start, they would be part of the MPN and collecting on bills instead of litigating (and losing) them.

Sounds like being a lien claimant just got a lot tougher – oh how my heart bleeds for those poor folks!

We’ve seen a lot of panel decisions recently from the Workers’ Compensation Appeals Board holding that lien claimants must obey the law as stated in Labor Code section 4903.06.  Filing a petition for costs hasn’t worked.  Nor has waiting until appearing before the workers’ compensation Judge to pay the fee (in the hopes that settlement negotiations would eliminate the need for a fee payment).

So here’s an odd case for you (Ricardo Zambrano v. La Pinada): a lien claimant had paid the fee, in accordance with Labor Code section 9403.06, but failed to provide proof of such payment because the lien representative didn’t appear.  The WCJ dismissed the lien, and the lien claimant petitioned for reconsideration, arguing that Code of Civil Procedure Section 473(b).  Section 473(b) allows an order of dismissal to be rescinded based on the inadvertence or mistake of the party’s counsel.

Now, here’s where it gets odd: the lien representative’s claim of inadvertence comes as follows: “the hearing representative assigned to the case mistakenly failed ‘to communicate with [the lien representative] to allow them to email or fax him on the date of the hearing the proof of payment of the lien activation.”

Well, was the dismissal based on the “inadvertence, surprise, excusable neglect, or an honest mistake”?  Not according to your humble blogger.

What is the inadvertence?  It looks like no one made an appearance for lien claimant or the lien representative’s office to begin with.  Also, what’s the excuse for not knowing the law?  It’s one thing to be taken by surprise by having a party raise a last-minute argument or issue.  There is NO QUESTION that a lien claimant has to show up ready to prove payment of the lien activation fee.  This is an issue that cannot possibly not come up unless a dismissal is on the horizon.

This was an issue of the lien representative not being up to date on the law or disregarding the most basic calendaring function on Microsoft Outlook (or Mozilla Thunderbird).  Instead of affirming the dismissal of the lien, the WCAB will now require defendant to prepare for a second hearing, although the WCAB did recommend the WCJ impose sanctions.

In any case, this opinion suggests that lien claimants may be relieved of their duties under section 4903.06(a)(4) (“If the fee has not been paid or no proof of payment is available, the lien shall be dismissed with prejudice.”)  The language suggests that the legislature intended to have lien claimants make a timely payment AND provide proof of payment.

I wonder, dear readers, could the failure to pay the lien activation fee itself be “inadvertence” to trigger section 473(b)?  Let’s hope not…

On several occasions, your humble blogger has gently suggested against nurturing that fear of social media, especially Facebook, and instead urged you to use it to help nab fraudsters.  If a creeps can stealthily cyber-stalk ex-girlfriends and secret crushes, why can’t adjusters and defense attorneys use the same tactics to find out when our total PD applicant is developing his Mixed Marital Arts persona?  We’ve seen Facebook used effectively, and Twitter has been used in much the same way.

The story I bring you today is that of an Ohio woman, who “pleaded guilty to workers’ compensation fraud after her Facebook postings helped prove she was working while collecting benefits for a workplace injury.”  She was ordered to repay $61,000 in ill-gotten benefits (although it does not appear that the cost of the investigation, prosecution, or future monitoring and enforcement of this order is to be paid by anyone other than Ohio’s taxpayers).

Basically, she was submitting payroll documents from a non-existent company to qualify for wage-loss benefits (Ohio’s gap between a subsequent job and pre-injury earnings).  In fact, she was posting pictures to her Facebook profile which reflected her employment at “Purrfect Paws Grooming Boutique,” and failed to report her actual wages.

If you’re particularly curious, the woman’s Facebook page is still up (at least at the time of this posting).

It really doesn’t take that long to become adept at manipulating Facebook or Twitter to allow access to various profiles or the information that the injured worker is willingly shouting to the world.  One can hardly claim that the vows and curses shouted from the top of a mountain were meant to fall everywhere except an adjuster’s ears.

So, crack open your old highschool yearbook and track down that one that got away (be prepared to explain this exercise to your significant other – any injuries sustained may or may not be compensable under your employer’s workers’ compensation policy).  Once you’re able to track down this missing love, you’re probably skilled enough to check the doings of any applicant who has to brag about his or her fraud on Facebook or Twitter or any of the other social media.

Hello dear readers!

Your humble blogger bids you a happy Memorial Day.  To all of the veterans, and family members of, reading this humble little blog, I thank you for your service.

It appears that I cannot make the point enough (because I must often remind myself) that the issues we face in workers’ compensation are important, but they are small on the grand scale.

For those of us fortunate enough to enjoy a respite from the comp world today, I bid you enjoy your sales and barbecues, your camping trips and parties, or even your lazy, pajama-wearing, do-nothing days off.  But even still, take a moment to remember why you’re not spending today reviewing Kaiser records or bill-reviewing a $600 box of tissues.

As for the rest of you unlucky souls, chained to your desk and rating schedule, still trying to get a good grasp of SB-863, let this remind you that workers’ compensation is a cruel mistress indeed.

Happy Memorial Day!