WCDefenseCA

Sit back, dear readers, and hear a wonderful story – one that will warm your hearts and soothe your hurts after another week of the senseless mayhem that is California workers’ compensation.

Imagine a worker sustaining an injury and receiving an award for future medical treatment.  As the award is often the end of the contest for many defendants, it was just the beginning for the worker’s self-insured employer.

Years of litigation would follow, disputing what was reasonable and necessary at every step.  The injured worker, representing herself, regularly shirked procedure and regulation alike, increasing the chaos involved.

During this non-stop rampage of workers’ compensation treatment battles, applicant, defendant’s attorney, and the workers’ compensation Judge became well acquainted with each other.  Meanwhile, applicant switched her primary treating physician again and again (by her choice because she wasn’t happy with the physician, and then by the actions of the defense because her preferred physicians were not complying with reporting requirements).

After applicant reluctantly returned to her old PTP for a couple of visits, she went AWOL and began treating with the physicians that had been administratively removed for not providing timely treatment reports.

The WCJ eventually came up with a solution to the problem – he ordered defendant to reimburse applicant for self-procured treatment with the administratively removed physicians, and also ordered defendant to help find a new primary treating physician that would accept a workers’ compensation patient and could keep to the reporting requirements.  Additionally, the WCJ ordered that the reports of the treating physician applicant so despised and disagreed with be redacted, so as to prevent the disputes of the past from poisoning the treatment relationships of the future.

So defendant was faced with the prospect of paying for physician visits and treatment which it could not review or monitor, and wasting the money paid for the treatment received by applicant’s previous primary treating physician.

Naturally, defendant had a problem with this – and decided to appeal.  The Workers’ Compensation Appeals Board decided to let the matter stand as it was and denied defendant’s petition.  Then, something miraculous happened – the Court of Appeal chose to grant defendant’s petition for a writ of review, and ordered the WCJ’s order rescinded.

With respect to reimbursement, the Court of Appeal correctly noted that “[t]he WCAB, by denying the petition for reconsideration, acted without authority when it condoned [applicant’s] return to the same office that had been administratively removed.  We agree with [defendant] that she should not be allowed to circumvent a proper and valid order by seeking treatment [with physicians who have not] complied with reporting requirements.”

With respect to the redacted reports, the Court of Appeal held that the WCAB does not have the power to remove the reports of a primary treating physician from the record, even in complicated cases or in cases where there is an ongoing feud between employee and physician.

So, what does that mean for your weekend?  For one thing, this case should send a clear message to the treating physicians out there that think the title “Dr. Fancypants” means they don’t have to issue timely and complete reports… the defendant might have to foot the bill, but it always retains the right to monitor the course of treatment and challenge it for reasonableness and necessity.  And even Dr. Fancypants has dry-cleaning bills to pay.

Additionally, the treating physicians’ reports stick to the record like white on rice.  Just because a treating physician gives the applicant a diagnoses that he or she isn’t happy with (ranging from “you can go back to work” to “you’re addicted to opioids.”)  So while the applicant forum shops for new treating physician every time the current PTP gets wise to the scam, the record grows and grows.

The case? Adventist Health v. WCAB (Evelyn Fletcher), recently ordered published by the Court of Appeal.

An interesting side note – once an injured worker has received an award for future medical treatment, there is little incentive for an applicant’s attorney to represent the injured worker for purposes of enforcing the award.  In fact, applicants often have a hard time finding representation for the purposes of enforcement of future medical treatment, unless they are willing to settle out their future medical treatment award so an applicant’s attorney can cash it.  Perhaps the next round of reforms could allow injured workers to hire attorneys to enforce awards (on an hourly basis or so)?

So let me get this straight… applicant-nurse is “attacked” by a teen-aged patient and sustains a scratch and a bruise.  She shrugs it off and goes about her day.  Six days later she has a stroke (arguably caused by her pre-existing, non-industrial hypertension) and then dies more than a year later.  The panel Qualified Medical Evaluator finds her stroke and death to be non-industrial… and somehow the workers’ compensation Judge still comes down on the side of the applicant?

In the case of Amelia Mendoza (Dec’d) v. Workers’ Compensation Appeals Board, applicant nurse was evaluated for her scratch and bruise while she was suffering from non-industrial hypertension and high blood pressure.

The workers’ compensation Judge went so far as to say that the panel QME was a doctor “hired by defendant” and disregarded his opinions as influenced by a “bias in favor of a hospital where he may wish to practice and a defendant who he may wish to do QME work for.”  Still no word on whether chiropractor QMEs can be disqualified for “bias” because they may want to later serve as treating physicians for the applicants they evaluate.

After the trial, the WCJ awarded death benefits when no claim for death benefits had been made and the only issues at trial were Arising out of Employment/in the Course of Employment (AOE/COE) and applicant’s attorney’s fees.

So what did the WCJ base his conclusion on, if not the opinions of the “hired” and “biased” panel QME?  The treating physician – the one who:

(1) relied on the widower-husband’s accounts of the “attacks” who was not present during the time of the attacks;

(2) relied on a report of a head injury (which were not mentioned in any contemporaneous medical reports); and

(3) somehow found a causal link between applicant’s high blood pressure and the scratches she sustained during the “attack” simply because both were observed at the same time.

The Workers’ Compensation Appeals Board, in granting defendant’s petition for reconsideration, held that the WCJ appeared to imply that “when an employee with pre-existing nonindusrial hypertension seeks treatment for a minor industrial abrasion and exhibits concurrent elevated blood pressure, the employer thereafter becomes liable for all treatment and consequences of the employee’s elevated blood pressure.  That is not an accurate interpretation of workers’ compensation law.”

Not easily discouraged, applicant filed a petition for writ of review … which the Court of Appeal denied.

Appeals are expensive and time-consuming, but they are often worth it, especially in cases like these.  The defense stuck to its proverbial guns and didn’t allow its case to get steamrolled.  WCDefenseCA sends its salute to the Huntington Hospital. 

Applicant’s lawyer:  But we objected to the treating physician’s report!

Defense attorney:  No you didn’t!

Applicant’s lawyer:  Well, I was thinking my objection really hard…

Perhaps the dialog didn’t go exactly like that, but this video of a Dilbert cartoon sums it up quite nicely.

The Workers’ Compensation Appeals Board recently denied defendant’s petition for reconsideration in the case of Harrison v. Gallo Glass Company (full disclosure – the defense attorney in this case is Thomas J. Harbinson, of Harbinson Tune Kasselik)

Applicant’s treating physician gives him the discharge – according to the PTP, the applicant was back to pre-injury status and could return to regular work.  The day after the report was sent to applicant with a denial notice, applicant mailed a request for a new treating physician to the defense.

The rest of the process is typical of going to a panel – proposal of Agreed Medical Evaluators, a panel request, etc.  But there was no written objection to the treating physician’s report…

The workers’ compensation Judge found that the request for a change in treating physician pre-dates the “discharge from care notice,” and applicant’s efforts to change the treating physician, although never communicated to the defendant until after the PTP had conducted an evaluation and made his conclusions, relieved applicant of any duty to object.

In a similar case, the WCAB held that filing a declaration of readiness to proceed satisfied the written objection requirement to a utilization review decision.

So the full effect of this case is that applicants’ attorneys can now prepare requests to change treating physicians, and simply submit them after an applicant reports to his attorney the PTP’s orally communicated findings.  If a PTP visit does not go well, a request for a new PTP can be filed before the doctor even signs his or her report.