WCDefenseCA

In the case of Felix Nino Mota v. Allgreen Landscape, applicant sustained injury to various body parts, and his claim was eventually resolved with a stipulated award of 89% with future medical care, namely in-home care which his wife began providing.  Mrs. Mota entered the country legally but did not establish she has the right to work in the United States.  She learned how to take care of her husband from his nurses and doctor.

Applicant’s wife sought to have defendant pay the value of her in-home care services.  Defendant countered with an offer to provide 16 to 18 hours of home health services daily with a licensed vocational nurse.  Applicant refused.

Following a trial, the workers’ compensation judge ruled that the Immigration Reform and Control Act of 1986 does not bar applicant’s wife from receiving the “reasonable value of her services.”

In denying defendant’s petition for reconsideration, the Workers’ Compensation Appeals Board held that Mrs. Mota’s services were not subject to utilization review, even though they were never requested by a treating physician, because the services began before Labor Code section 4610 became effective, and because defendant was aware the services were being provided.

With regard to the issue of Mrs. Mota’s work status, the Workers’ Compensation Appeals Board held that applicant’s wife is not defendant’s employee, so the question of federal law does not arise.

The basic result of this case has two equally alarming effects: (1) the defendant is no longer allowed to control treatment, and must allow applicant’s wife to provide in-home care rather than providing a professional of its choice; and (2) the defendant is forced to provide payment to a person who has no right to work in the United States in violation of federal law. In fact, it is possible that the WCAB would force an employer to pay an illegal immigrant to provide in-home services to an employee who was also discovered to be an illegal immigrant.

The WCAB relies on the reasoning that “[i]f applicant had chosen to move to Mexico after his injury for medical treatment and rehabilitation, and if Mrs. Mota had provided exactly the same services, defendant would be liable for those services, and there would be no issue as to her employment status or her right to reimbursement.”  But Mrs. Mota has the right to work in Mexico, and not in the United States.

Perhaps the defendant might consider retaining a lawyer for a federal removal action to see if the federal law is really as undisturbed as the WCAB suggests.  After all, if the federal government can so casually disrupt settlement proceedings with its Medicare Set-aside Analysis requirements, invalidating a WCAB decision should be no problem.  In any case, applicant’s attorneys may have stumbled upon a way to gather income for their clients, regardless of work status, by having non-work eligible spouses provide “home care.”

Gather around, dear readers, and let your eloquent and intriguing blogger tell you a story.  Once upon a time, in a realm known as California’s workers’ compensation, defendant employers came together to for the mutual benefit of employers and employees alike, creating the medical provider network system to weed out prescription-happy and over-billing medical care providers.

All was well with the world, but at every turn applicant’s attorneys, to the detriment of their clients, and medical providers, to the detriment of their patients, tried to overthrow the MPN system.  The fate of MPNs dangled precariously and uncertainty filled the air when, to the surprise of all, the Workers’ Compensation Appeals Board issued several en banc opinions in the Valdez case, declaring that applicants must limit their treatment to medical provider network physicians, that the reports of non-MPN physicians were inadmissible, and that insurance companies and self-insured employers were not liable for the non-MPN medical bills.  And joyous celebration erupted in the streets!

Then, of course, the world of workers’ compensation came back to its senses and tossed the rule of law out the window.

The case of Michael Thomas v. Safeway Stores, Inc. is making the rounds and creating quiet a bit of chatter on and off the internet.

Michael Thomas sustained an injury to his shoulder and required surgery.  However, applicant’s treating physician wrote a report in which he claimed that the 11 MPN orthopedic surgeons in the San Francisco Bay Area were not qualified to perform the surgery, and that the only man in the world that could possibly save applicant’s shoulder was a surgeon in Washington who had written several articles on the matter and performed the surgeries with some regularity.  One of the treating physician’s more memorable quotes: “If Mr. Thomas was my family member, [the Washington surgeon] is the only one I would even consider treating a case like Mr. Thomas’s.”

I only wonder where the treating physician would send Mr. Thomas if the treating physician himself had to pay for the surgery – it is so easy to be generous with the money of others, after all.

Applicant petitioned for reconsideration of the Workers’ Compensation Judge’s ruling denying the treatment, arguing  that the “reasonable geographic area,” as contemplated by California Code of Regulations section 9780 can be determined on a case-by-case basis, and in this case should include the 812 mile distance to the Washington surgeon’s office.  The WCAB ruled that  the facts in this case compel a finding that a surgeon in Seattle, Washington is in the reasonable geographic area of San Francisco.  Naturally, defendant must pay for flights, accommodations, and whatever fees may come.

Doesn’t this case mean that all you need to beat an MPN is to have a treating physician say none of the locals are qualified?  Hopefully, this will be an isolated lapse in judgment rather than a new policy.

In a continuing effort to make your life easier, an applicant’s attorney is claiming that a treating physician’s recommendation of medical treatment, in this case in-home care, dates back to the date of injury, five years ago!

What are you to do?

Well, in a turn that has left your somewhat-less-now-than-before cynical blogger a bit surprised, a Workers’ Compensation Judge and the Workers’ Compensation Appeals Board have sided with justice, fairness, and (the third of this wonderful trio) the employer!

In the case of Gloria Arana v. Hawthorne School District, a teacher’s aide sustained an injury in the year 2000 which, after a surgery in 2002, rendered her 100 percent permanently disabled.

The treating physician, and it appears there were no qualified or agreed medical evaluators used in this case, recommended in-home support eight hours per week and out-of-home support, such as grocery shopping, four hours per week.  This was a 2007 report, and the treatment recommendation was for 2002 and ongoing.

Defendant was faced with a demand for reimbursement of roughly 3000 hours of home care, and the continuing award of treatment for the “foreseeable future.”

The defense did not dispute the obligation to provide medical treatment in the future, but naturally objected to liability for treatment “prior to the date of a medical report establishing [the medical treatment’s] need.”

Any other result would have been ridiculous – the employer would have had no opportunity to contest the necessity of the medical treatment, negotiate a cheaper price from one of its providers, or rely on any of the other defenses usually available in such situations.  Unfortunately, history has shown that a preposterous result is not one to make the workers’ compensation system flinch.

Let a full-fledge WCDefenseCA salute issue to the WCJ and the WCAB for their wise and proper decision in this case.

It is no secret at all that your tireless and consistent blogger is a fan of Medical Provider Networks.  He has screamed his approval from the mountaintop of this blog for all to hear.  But, realistically, the MPN is not a panacea: every armor has weak points.

One such gap in the defense was touched on in the recent case of Garcia v. Zenith Insurance Company (2011) 39 CWCR 293.  There, a Workers’ Compensation Judge had awarded applicant treatment outside of the MPN because the MPN did not include chiropractors.  Citing California Code of Regulations 9767.5, the WCJ let the applicant proceed with a non-MPN chiropractor.

The WCAB denied defendant’s petition for reconsideration.

Are you using an MPN?  Does it have “at least three physicians of each specialty…”?  Are there physicians within “60 minutes or 30 miles” of where your employees live or work?  These are all questions to ask, and regularly — the MPN is not a magic want but a scalpel to be used to great effect but only when wielded with precision and skill.

In any case, the good people at Zenith are no doubt working on their MPN right now, looking for honest chiropractors to add to their lists.

Your humble blogger wishes you a happy new year – enjoy the revelry and stay safe.  I will be at your service, bright and early, on Tuesday, January 3rd, 2012.  See you next year!

It looks like the mileage rate for treatment,  medical-legal evaluations, etc., will remain the same as of January 1, 2011, according to this release made by the Internal Revenue Service.  As previously discussed, the compensation for mileage is tied to the IRS’s rating, and applies to California Workers’ Compensation.

So remember, for every mile driven, you owe that applicant 55 cents!

But, also remember, that the mileage reimbursement is part of the Labor Code section 4600 duty imposed upon the employer to provide all treatment “reasonably required” to cure or relieve from the effects of the industrial injury.  This means that you can get MapQuest directions, with total mileage, and compensate the employee from his house (you know, the one you had to ship the hot-tub to) to the deposition and back, and no more.  If the employee starts submitting ridiculous mileage reimbursement requests, you might have to rein him in.

Are services for injured workers such as housekeeping, pool cleaning, and gardening “medical treatment” under Labor Code section 4600 and are treating physicians’ recommendations for such services properly referred to Utilization Review under Labor Code section 4610?  The Court of Appeals recently denied applicant’s petition for a writ of review of a divided Workers’ Compensation Appeals Board decision on these very questions.

In the case of James Bishop v. Workers’ Compensation Appeals Board, applicant allegedly sustained injuries to his back, gastrointestinal system, and bilateral knees over a period of twenty-six years, ending in November of 1996 (a specific injury date of September 24, 1996, was also plead).  In 2006, a Workers’ Compensation Judge found applicant sustained an industrial injury with a permanent disability rating of 77%, after apportionment, and awarded applicant future medical treatment.

Defendant, in abiding by this award, paid for bilateral knee replacements, a hip replacement, and left shoulder surgery.  I mention this little fact just to point out that the defendant was not trying to avoid its duties under this award, nor was defendant a cheapskate.  Applicant received extensive treatment and considerable expense to defendant.  So what’s the problem?  Applicant made demands for housekeeping (8 hours a week), pool cleaning (once a week), and gardening services (once a week), based on the recommendations of the treating physician and the Agreed Medical Evaluator, as well as other “treatment” such as a weight loss program.

The WCJ awarded these services and ordered penalties be paid for unreasonable delay of medical treatment.  Defendant filed a petition for reconsideration, arguing that such services were not medical treatment reasonable and necessary to cure or relieve the applicant from the effects of his injury, and so were not subject to penalties for their delay.  Defendant further argued that because these services were not medical treatment, there was no obligation to refer such requests to utilization review.  (The WCJ found that defendant’s UR denial of the treating physician’s recommendations was timely as to the weight loss program, but being silent on the issues of the housekeeping, pool, and gardening services, was not timely.)

The WCAB found that neither the reports of the treating physician nor the AME constituted substantial evidence because of the unexplained conclusion that such services were medically necessary.  The WCAB also concluded that such services were not “medical treatment” and so were not subject to UR.

The WCAB also instructed the WCJ to clarify his analysis regarding the imposed penalties.

So what should we take away from this?  I would still recommend sending recommendations for in-house services to UR – this was a divided panel and therefore offers even less authority than the typical unanimous decision; it looks like defendant caught a lucky break in this case.  But, all in all, this is a great decision for an obviously responsible and responsive defendant – the matters of medical necessity were paid for; the trivialities of milking the defendant for free house services were properly and effectively resisted.

Often enough, these services are awarded to applicants, but usually the treating physician and/or the A/QME have to do a bit more leg work in their reports.  If you keep a close eye on these reports and requests for treatments, you might catch an M.D. or, more likely, a D.C. cutting corners, and thereby cutting you a path to denying “treatment.”

What’s your craziest story?  Free hot tubs? Manicures and pedicures?  If you’ve got a crazy story, let me know – gregory@grinberglawoffice.com

In the recent case of Valerie Morales v. General Design Concepts, the Workers’ Compensation Appeals Board granted defendant’s petition for removal where the Workers’ Compensation Judge allowed applicant to proceed directly to trial on the issue of entitlement to certain medical treatment, without first going through the process outlined by Labor Code section 4062.

Applicant’s treating physician recommended surgery for an admitted 2007 cumulative trauma injury which had been settled by stipulations with need for further medical treatment.

Defendant forwarded the request to Utilization Review, and the UR determination did not certify the request, leading defendant to decline to approve the treatment recommendation.

Applicant then filed a declaration of readiness to proceed for expedited hearing, and the WCJ set the matter for trial.  Defendant petitioned for removal, arguing that applicant never objected to the UR determination in writing, as required by Labor Code section 4062, nor did applicant request a panel, as required by the same.

The WCAB granted the petition for removal, but (this is where your dedicated blogger becomes a bit unhappy) orders that the trial be taken off calendar and applicant be given an opportunity to be evaluated by the panel qualified medical evaluator.

Applicant missed her deadline – she is represented and twenty days passed from the UR determination without a written objection on her part.  The show is over – her objection is waived.  NO – SOUP – FOR – YOU.

Somehow, applicant’s procedural failings are translated into a time extension.  Even though applicant made no written objection to the UR determination, the WCAB reasoned that “[i]n this case, it is apparent that applicant objects to the UR determination.”  By that rationale, an angry phone call from the applicant would satisfy Labor Code section 4062 as much as an applicant “notify[ing]  the other party in writing of the objection.”

Hopefully this will not become a common interpretation of the law.

For extra credit, guess which venue issued the same type of ruling for a defendant who failed to meet a statutory deadline to object to a medical determination?  There is only one where such a thing happens… If you guessed the FLO Board, you are right!

Have you ever heard of the eggshell plaintiff (or applicant)?  Picture an employee made entirely of egg shells.  When a clumsy customer stumbles into the shop, he bumps into an ordinary employee without any noticeable damage, but when he bumps into Mr. Eggshell with the exact same amount of force… well… all the employer’s doctors and all the employer’s lawyers couldn’t put Mr. Eggshell back together again.

In other words, the defendant must take the injured worker as he finds him – with no discount for the gap between a typical employee and this super-sensitive one.

But what about apportionment?  If there is a non-industrial contribution to applicant’s impairment, shouldn’t that discount invalidate this “eggshell applicant” doctrine?  Of course it does – but only as to permanent disability.  Unfortunately, we can not apportion medical treatment, and 1% industrial causation imposes 100% liability for medical costs.

The reason, dear readers, that I serve you this omelet, for which eggs were most certainly broken, is because of a recent case – Karen Reff v. Workers’ Compensation Appeals Board (writ denied).  Therein, applicant-nurse contracted occupational pneumonia which aggravated her pre-existing common variable immune deficiency, a genetic disease.

Applicant claimed that the industrially contracted pneumonia interacted with her pre-existing (and previously dormant) common variable immune deficiency, necessitating lifetime medical treatment, to wit, immunoglobulin deficiency replacement treatments.

The Workers’ Compensation Judge applied the eggshell plaintiff doctrine to hold defendant responsible for applicant’s future medical treatment.  Defendant naturally petitioned for reconsideration.

The Workers’ Compensation Appeals Board granted defendant’s petition, reasoning that, based on the relevant medical information, applicant’s hospitalization would have eventually happened when something (any number of things) would have triggered here CVID.  Furthermore, it appears that the more likely reason doctors were continuing the immunoglobulin therapy was to treat the CVID and not the industrial injury.

To summarize, applicant claimed her non-industrial injury was made worse by the industrial one, and demanded defendant pay for her non-industrial treatment.  The WCJ agreed.  But the WCAB put the question to a different standard.

According to the WCAB, the proper inquiry is whether “the medical evidence indicates that within reasonable medical probability the normal progression of the non-industrial disease or condition would have resulted in disability regardless of the industrial injury.”

[In interpreting this standard, your humble author can’t help but muse whether mortality is a “non-industrial disease or condition” such that a death claim could be defeated by showing the result that would have occurred “regardless of the industrial injury.”  Of course, I don’t advise trying this argument.]

In other words, because many things will trigger the same effect in applicant’s non-industrial, pre-existing condition, the award of lifetime medical treatment is not justifiable.

The Court of Appeal denied applicant’s writ of review.

It is no secret that I’m a fan of Medical Provider Networks.  A useful tool in California’s Workers’ Compensation defense practice, MPNs save the employer money in medical treatment, filter out junk-science reports, and protect the injured worker from being tricked into adopting a cash-cow posture for less-than-ethical medical practitioners.

Although an employer/insurer can set up an MPN fairly easily, and impose upon the injured worker the duty of using it (if the employee expects the employer to pay for the treatment), there are a few small cracks in the wall.

One such crack can be found in Labor Code § 4616.2, subsection (d)(3)(B).  This exception to the general rules of MPNs allows the current non-MPN treating physician to continue treating the employee for up to 12 months for a “serious chronic condition.”  The determination is initially made by the employer/insurer, and the employee can dispute the determination, first by requesting a report from the treating physician and then by getting a panel QME.

According to section 9767.9(e) of the California Code of Regulations, a chronic condition is one “that persists without full cure or worsens over 90 days and requires ongoing treatment to maintain remission or prevent deterioration.”

In other words, the employer must approve the continuation of treatment for the serious chronic condition, for up to one year, starting on the day that notification is received by the employee.

[Note, as per § 9767.9(f), notice must be sent to the employee and the employee’s treating physician, in English and Spanish, that the employer/insurer has determined that there is not a serious chronic condition and that the employee will be transferred into the MPN.  The regulation also provides that “to the maximum extent possible” layperson’s terms must be used in this notice.]

In other words, dear readers, if you are thinking of adopting an MPN, this is one of the delay tricks doctors and employees will use to stay out of it as long as possible.  This provides them with an additional year to rack up the bill on treatment and produce one report after another.  [Note – under subsection (h), the employer, insurer and employee all have the right to have this matter resolved by going to a panel qualified medical evaluator.]

By no means does this take away from the great value of MPNs – but it is something to be aware of before refusing to pay for an extra year of non-MPN treatment.

California Workers’ Compensation Defense practice offers few victories – but when they appear, they are sweet and make the whole effort worthwhile.

A recent decision from the Workers’ Compensation Appeals Board, Tomei v. Bay Alarm Company, addressed the application of California Code of Regulations section 9792.6(o).  As some readers might recall, earlier this month your humble author did a post on what constitutes a procedurally proper request for medical treatment.

The skinny:  A request for spinal surgery made in a narrative report must have the words “request for spinal surgery” clearly written by the surgeon across the top of the first page.

Applicant’s treating physician recommended spinal surgery, but the report in which the recommendation was made was in narrative form.  Although CCR 8 § 9792.6(o) allows requests for treatments to be made this way, it also requires “the document [to be] clearly marked at the top that it is a request for authorization.”

This treating physician didn’t mark the narrative report as required by § 9792.6(o), so applicant’s attorney did this for him in blue ink!  The report was sent to defendant with the words “request for treatment” hand-written across the top of the first page by the applicant’s attorney.

The WCAB held that the failure of the surgeon to clearly mark that the narrative report is a request for spinal surgery prejudices the defendant.  Therefore, the letter of the law applies.

In California Workers’ Compensation practice, defendants are given relatively little time to deal with spinal surgery requests.  The lesson here is that, when the physician requesting the treatment does not follow proper procedures, the defendant is shielded by the law.

As a habitual cynic, I can tell you that it is easy to become a perpetual cynic if you don’t keep your pessimism in check.  Cases like this one serve as an example of why it is important to fight for every inch of the relatively limited territory the law affords defendants.