The Department of Industrial Relations is on a roll with this week’s news releases, an earlier report citing “record-breaking results for labor law enforcement in California” having been issued to the community this week.

Apparently, Labor Commissioner Julie A. Su was excited to report that “labor law enforcement under Governor Brown in the first two years of his Administration resulted in more minimum and overtime wages found owing to California workers and more monetary penalties for illegal business practice than in any previous year in the past decade.”

Strangely, your humble blogger’s “in-box” doesn’t include a report of this administrations hot pursuit of fraudulent claim filers, of workers who harass their employers with fake workers’ compensation claims, or of the crippling effect workers’ compensation costs have on small businesses.

Times are tough enough in California, and more regulations, more compliance laws, and more experts to hire in order to stay out of the ever-growing “underground economy” is not going to bring California’s businesses back from the edge of the abyss.  And looting them with fines and penalties before they have a chance to move to Texas and Arizona isn’t going to solve the problem – you’re feeding the fire, not putting it out.

Certainly some people think of evil fat-cat business tycoons, laughing at their poor workers while they light their cigars with $100 bills aboard private jets (much like your humble blogger and his growing media empire).  They deserve what’s coming to them, and their poor workers are the victims.

In fact, your average violator probably has a handful of employees and is bringing home as much money as they are after trying desperately (and in vain) to comply with California’s Byzantine regulations on every venture imaginable.

Instead of driving the last nails in the coffins of small businesses and then high-fiving itself, perhaps this administration should target the elements that drive small businesses into the “underground economy” in the first place – high workers’ compensation insurance premiums (among other costs of doing business).

Here is an idea – if an employer is the victim of workers’ compensation fraud, that employer should be entitled to a California tax credit for all money that the district attorney’s office was unable (or unwilling) to recover.  That total amount should include the cost of investigation, which is often paid for and conducted by the employer (many prosecutors won’t approach such a case until all the leg work has been done for them).

After all, it’s easy for the prosecutor to plea bargain fraud away by waiving restitution to the employer, and then add another “conviction” to his or her re-election campaign while leaving the employer out in the cold, with no recourse except paying more tax dollars to the same prosecutor.  This way, for every dollar the prosecutors of California fail to recover for the employers, there will be one less dollar coming in next year in tax revenue.

Instead, we have self-pleased “reports” of desperate businesses being ground into the dust to the sound of thunderous applause.

A “Newsline” dated May 20, 2013, is going out to the world to tell everyone that the DWC is tired of your complaining that the panels are taking too long to issue.

So what if you need medical issues to be resolved?  So what if you’re an injured worker in too much pain to work and not receiving TD based on a doctor’s report?  So what if the treating physician has just added on 65 additional injuries, from sexual dysfunction to decreased eyesight following a paper-cut, too bad.  You’ll have to wait.

In other news, the fire department will get to your burning house when they get to it, and that ambulance you called for? Yeah, we’ll see…

It appears that the DWC tried hiring student assistants (remember all those erroneous rejections?) and overtime pay, but that proved to be “not sustainable” so the community is now told to hold off until July 1, 2013, when the Medical Unit will not need to issue panels for medical treatment disputes.

Of course, once the Independent Medical Review process comes into effect, won’t the Medical Unit just be told to cut back on its budget because it no longer has to process the medical dispute requests?

How difficult would it be to have an automated system?  If I can e-file a DOR and choose my own hearing date, why can’t I log onto the Medical Unit and request a panel?  We already type in all the information for a panel request, and if an electronic panel request is premature, you can be sure that the other side is going to file a Declaration of Readiness to Proceed on the issue of which panel issued controls.  And, if two panels are generated on the same day, the one in the same specialty as the treating physician would control.

Some of my beloved readers will recall the case of Charter Oak Unified School District v. Workers’ Compensation Appeals Board (Salvador Cerda), in which a Court of Appeal denied review of the WCAB’s decision that a physician in an employer’s Medical Provider Network can treat the applicant at any location and for any entity, regardless of the address registered with the MPN.

Well, the DWC recently posted proposed changes to the MPN rules, and that, among other holdings, might become quickly irrelevant if the regulations are approved as proposed.  The new rules, specifically regulation 9767.3(c)(5) holds that “[o]nly locations listed in the Medical Provider Network listings are considered to be approved locations under the MPN.”

But there are other changes also.

For example, MPNs will have to provide “access assistants” which will be available from 7am to 8pm Monday through Saturday to assist injured workers with finding physicians and scheduling appointments.

There is also language to reinforce that a chiropractor can only be the primary treating physician up until the 24-visit cap has been met, and then the employee must select another primary treating physician within the MPN who is not a chiropractor.

There are plenty of other changes too (about 40 pages of them!) which will have to be explored and debated in the coming days.

Employers should be wary, however – any push from “treating” physicians and applicant’s attorneys in this “open forum” period is going to go only one way.  For example, your humble blogger’s sources report that renowned applicant’s attorney, Jack Cheatum, of Whey, Cheatum, and Howe, LLP, plans to introduce an amendment to the rules by which an applicant can submit a certified document that he or she spun around three times and uttered the words “Abra Cadabra Em Pee Ennus Negatus” to be allowed to treat outside of an otherwise valid MPN at the employer’s expense.

Let’s hope we still have an effective MPN system when all this is done.

There is a tremendous amount of benefit to having an employer’s representative sitting next to the defense attorney at a deposition.  When the injured worker starts steering the deposition to fantasy land, an employer’s representative can provide specific questions to asks or facts to explore to build a record which would support a charge of perjury or discredit the witness in various other means.  Naturally, the applicant’s attorney would much rather avoid such aid to defense counsel.

In the matter of Irene Yera v. J.C. Penney, applicant refused to attend a properly noticed deposition because she felt “intimidated” by the presence of employer’s store manager.  Defendant filed a petition to compel, but the workers’ compensation Judge denied the petition, even though there was no showing of why the employee was intimidated by the store manager.

Naturally, defendant petitioned the Workers’ Compensation Appeals Board for removal, arguing that defendant was denied its right to due process.

So, dear readers, isn’t it unfair to have the applicant provide deposition testimony in the sight of someone who could immediately point out lies and inaccuracy?  Wouldn’t that be “intimidating”?

The WCAB didn’t think so.  Citing California Code of Civil Procedure section 2025.420(b)(12), the WCAB noted that, while a protective order could be sought during discovery, which was not done here, a party could not be excluded from a deposition.  The WCAB then reversed the WCJ’s order, granting defendant’s petition.

This humble blogger’s beloved readers know that he is not one who likes to name names.  Things happen, mistakes get made, and adverse decisions are no reason to embarrass an applicant, defendant, or attorney.

But, in cases of fraudsters and swindlers, your humble blogger does not hesitate to “make them famous” to the extent this humble blog can.  The same goes for qualified medical evaluators who try to game the system to rip rob defendants and harm patients.

That being said, have you heard of Richard K. Skala, D.C. of Fremont?  This chiropractor recently entered into a stipulated settlement with the Department of Industrial Relations over his… “conduct.”  The allegations made included not identifying evaluation locations, overbilling, and other behavior disfavored in California.

Skala was placed on suspension, with the 90 day suspension period suspended pending successful completion of probation for six months.  The Statement of Issues, withdrawn as part of the plea bargain, noted that he engaged in self-referral to his partner, Ramanathan Prakash, M.D. on several occasions.  If that name sounds familiar, it’s because the good doctor was convicted of health care fraud after a jury trial in Sacramento, and was sentenced to 10 years in federal prison back in October of 2012.

Is Richard Skala one of your PQMEs?  If he is, your humble blogger most humbly suggests that you check up on his referrals, and inquire as to whether he has a financial interest in any of them.  That’s the sort of conduct that expands one’s profile on the PQME Discipline List.

We’ve all been there – at a restaurant, at a banana-stand, at a public restroom, and the line was ridiculously long.  Maybe it was hot.  Maybe it was cold.  Maybe you were in a hurry.  But no matter the conditions, you got in line just like everyone else and waited your turn.

Then you saw King Jerk or Princess Better-Than-Everyone-Else.  He decided he wasn’t going to wait in line and just skip ahead.  She decided her hurry was more important than your hurry, so she could skip over everyone else.

Workers’ compensation is just like the real world, and we have lines and rules and procedures that everyone should be following, but some people think that they’re special.  In the recent en banc decision of Luis Martinez v. Ana Terrazas, that “special” someone was a lien claimant by the name of New Age Imaging, Inc.

New Age decided that it didn’t need to file its lien activation fee, as required by the fairly new Labor Code section 4903.06, and that it would instead file a petition for costs under Labor Code section 5811 (“In all proceedings under this division before the appeals board, costs as between the parties may be allowed by the appeals board.”)

In other words, there’s no lien, but just a petition for costs!  Do you buy it, dear readers?  Well, the commissioners of the Workers’ Compensation Appeals Board happened to be having lunch at the restaurant where New Age was trying to cut in line, and told them to get in back like everyone else!

The WCAB held that “a claim for medical-legal expenses may not be filed as a petition for costs under section 5811.”  However, those lien claimants who bought into this scheme and dismissed their liens so as to file a petition for costs will still be allowed to re-file their lien so long as they pay the activation fee.

There have been a string of en banc or “significant panel” decisions recently which address the issue of 4903.06 lien activation fees.  The decisions are consistent and essentially give form to the boiling resentment that the WCAB has been developing over the years as the system has been strangled by liens.

Now it’s time to pay the piper – lien claimants will have to pay the fee or get swept out of the system without any discussion.  And no wiggling or wrangling or mislabeling or anything else will keep 4903.06 from striking the liens down.

What if you could purchase jail insurance?  You’d pay your premium and, if you ever get sentenced to jail or prison time, the insurance policy would pay for someone to serve your time for you.  That’s not going to happen, and workers’ compensation doesn’t provide that coverage either.

Some employers think that workers’ compensation is a panacea – no matter what happens to their employees, the employer is covered.  That’s wrong – very wrong.  Not only is that mentality incorrect, it’s also dangerous for the employees.

Take, for example, the story of Sanjay Sakhuja, who recently plead guilty and was sentenced to jail time for involuntary manslaughter after of his machines crushed a 26-year-old mother who was four months pregnant, resulting in her death.

The employer, Digital Pre-Press International, was alleged to have failed to properly train its employees (CAL/OSHA required the machined to be locked and powered off between uses, but it was not in this case).  Just imagine a Home Depot employee told to “figure it out” when a customer asks for lumber to be cut with the industrial-sized power saw.

Workers’ compensation will cover an employer within reason – the system is meant to be blind to fault or negligence.  But any time you’re working with serious machinery like this, from saws to presses to trucks and tractors, you can’t afford not to invest in proper training and safety.

Without going into the moral liability, no amount of insurance will take your place in a jail cell if an employee’s life is lost because you failed to take proper precautions.  No insurance policy will be able to return a wife and mother and unborn child to their family either, and that fact will haunt any half-decent human being long after the business closes and the jail term is over.

Hopefully, this story will remind employers in California, large and small, that the insurance policy is “just in case,” and a mixture of safety and common sense is the first and best line of defense against such horrible tragedies.

More good news from the legislature, dear readers!

Assembly Bill 1309, which would limit California’s workers’ compensation system, with all its generous benefits and cumulative trauma claims, to California professional athletes (locking out players who have played as little as one game in our glorious state), has moved closer to becoming law.  As of last Thursday, the Assembly passed AB 1309 in a landslide 57 to 1, and moving the bill to the Senate, which hopefully pass it with all due speed and send it to Governor Brown for signing.

Your humble blogger has no word one way or the other how “the Big J” will act on this bill if given the chance to sign it into law.  However, whatever Governor Brown’s other virtues or vices, good qualities and bad, he has a proven track record of signing into law workers’ compensation reforms that curb the exploitation of businesses, employers, and insurers.

After all, he reportedly lent his political weight to the passage of SB-863 (for better or for worse, time will tell), and signed several pro-business workers’ compensation laws while vetoing several anti-business ones.  As I’m told that “a trend is your friend,” here’s hoping that the Governor continues to maintain friendly relations with this seeming trend and sign this bill into law once it hits his desk.

What does this mean for Californians?  If the bill passes, we can expect to see less demand on the workers’ compensation system (an entire class of employees, the vast majority of professional athletes), will be barred from burdening California’s workers’ compensation system to recover for injuries sustained outside of California.

Additionally, your favorite panel attorneys will have a bit less work and might be more inclined to refrain from raising their rates for a little while longer as there will be less claims to defend.

And, of course, less money in the pot means less attorneys’ fees and payouts for the applicants bar (my heart bleeds for them!)

Let’s hope for a speedy passage and an immediately-felt effect.

Welcome back from your weekend, dear readers.  I greet you on this Monday morning with the story of a disgruntled lien claimant, becoming ever more disgruntled with each additional infuriating defeat.

The story is that of Beverly Hills Center for Arthroscopic and Outpatient Surgery, lien claimant in the matter of Luis Cardozo v. Koos Fashion.  The basic thrust of this case was that a physician from lien claimant was present with its legal counsel on the date of a lien trial.  The basic facts are as follows:

Lien claimant’s representative was dissatisfied with his representation, apparently because the recommendation for settlement wasn’t high enough (the settlement figure recommended was $325,000).  In the words of the workers’ compensation Judge, “after witnessing [lien claimant representative’s] truculent behavior during the settlement negotiations, the undersigned [WCJ] concluded that [he] voluntarily attended the lien trial merely to disrupt it and delay it so that he could obtain new representation.”

What a Disruptive Doctor May Look Like

The lien claimant’s representative wanted the trial continued so he could obtain new counsel and get more dollars through settlement (scrubs aren’t cheap!), but the workers’ compensation Judge refused.  Lien claimant could either settle for the offered (and recommended) $325,000, or take it to trial.  Lien claimant agreed… only to file a petition for reconsideration, removal, and petition for disqualification.

So, dear readers, what could the lien claimant possibly appeal after signing the settlement agreement?  The WCJ’s refusal to grant a continuance, apparently.

The Workers’ Compensation Appeals Board denied the petitions, and the Court of Appeal followed suit.  Next stop, Supreme Court?  And then, perhaps, the United Nations?  After all, a lien claimant’s dissatisfaction with its representation because of the weakness of its case really is a human rights violation, when you think about it.

Don’t let a lien claimant disrupt your trial date with bad behavior either – offer your settlement, if any, and then push for the trial.  A continuance is inappropriate just because the lien claimant wants more money.

The American Medical Association’s Guide to the Rating of Permanent Impairment, 5^th Edition, has two very, very dirty words.  In the less “open-minded” and “modern” venues of California’s workers’ compensation system, an attorney could face sanctions for even thinking them, let alone saying them.  The two dirty words?  “Grip Loss.”

Grip loss is a go-to for upper extremity impairment because it offers the applicant an opportunity to get a maximum recovery for, quite literally, minimum effort.  The less effort exerted by the applicant in performing the grip loss test, the higher the impairment can be assigned as a result of the injury.

The AMA Guides frown upon grip loss, and generally don’t allow the grip loss to be rated in the presence of other impairment to the upper extremity.  For example, if you have an amputation of the fingers or the hand or the arm, you can expect a considerably weaker grip.  (See AMA Guides, Page 507).

Grip loss can be used in “rare” cases, when the other methods of rating impairment do not adequately consider grip loss.

But that doesn’t stop some evaluating physician from disregarding the restrictions of the Guides and uttering the following phrase: “Hocus Pocus, Almaraz Guzmanaus, Alacazam!” and *POOF* triple whole person impairment!

That’s what happened in the case of Angelina Kendrick McGee v. State of California, Department of Justice.  There, the Agreed Medical Evaluator rated grip loss in the presence of carpal tunnel syndrome, without providing “any analysis to justify a departure from the Guide’s limitation of impairment ratings based on grip loss to ‘rare cases.’”

The Workers’ Compensation Appeals Board reversed the workers’ compensation Judge’s findings and award, issuing, instead, a new award which excluded the grip-loss rating.

Now, it’s important to note something here, dear readers.  In days gone by, the workers’ compensation Judge may have elected to “develop the record” and give the applicant’s attorney a chance to solicit additional deposition testimony or perhaps a supplemental report from the AME, allowing him to lay the foundation for an Almaraz/Guzman rating.  But here are some things to remember:

1. Discovery closes at the Mandatory Settlement Conference;
2. The party seeking to rebut the AMA Guides bears the burden of proving a rebuttal (magic words have no power before the Workers’ Compensation Appeals Board);
3. Unless there has been a rebuttal, the AMA Guides should be used on a “straight rating” basis.