Category Archives: Tactics and Strategy

The Spooky Sanctions of Skeletal Petitions

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Often enough, lien claimants will wage a war of attrition against defendants, hoping that the looming cost of litigation will soften the resolve of defendants in terms of paying undeserving liens.  I have had lien claimants tell me that their settlement demand is cheaper than me “coming down to the Board to litigate” the claim – I’m sure most of us have.  The recent decision in the case of Alfonso Alcaraz v. Hronis, Inc., presents such a situation, and the Workers’ Compensation Appeals Board sanctioned two lien claimants for such behavior.  (My earlier readers may recall a discussion, many blog posts ago, that advocated using sanctions to restrain the greedy little appetites of lien claimants.)

The underlying case was settled by compromise and release, and defendant agreed to pay, adjust, or litigate all liens of record.  The matter of two lien claimants, K. Rad Payman, M.D., and Silver Orthopedic Center, proceeded to trial.  Following the May 3 lien trial, the Workers Compensation Judge issued a Findings of Fact, Orders & Award on June 7.  Defendant filed a Petition for Reconsideration on July 1, and on July 14 the WCJ rescinded his Findings of Fact, Orders & Award, and set the matter for an additional hearing.  So here is where it gets weird…

On July 15, both lien claimants filed a petition for reconsideration, seeking relief from the WCJ’s original, and already rescinded, Findings.

The WCAB ordered the petitions dismissed as moot, but then continued in their opinion to note that the petitions would be dismissed in any case, because they were skeletal and untimely.  (Remember, petition for reconsideration must be filed and received by the Board within twenty days of the issuance of the underlying decision, plus five for mailing if the decision was served by mail.)

The petitions themselves were the very definition of skeletal – claiming new information was found without describing said information or how it would affect the case.  Employing the tactic of Scheherazade, the lien claimants hoped to fill the commissioners with an unyielding curiosity.  Needless to say, the Board was not amused.

On its own motion, the Board sanctioned both lien claimants for their petitions, which were “without merit and done solely for the purpose of causing unnecessary delay or a needless increase in the cost of litigation and are not justifiable.”

Realistically speaking, the sanctions imposed are not going to do much to deter such behavior.  $250 is a cost of doing business, not a “scared straight” event.  On the other hand, sanctions like these are a great thing for another reason – they build up a record that can be used in the future, like in the case of a certain hearing representative.

Aladdin would be proud…

Housekeeping, Pool Cleaning, and Gardening — All Medical Necessities?

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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

When “Law and Order” Meets Workers’ Compensation

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The case of City of Redondo Beach v. Workers’ Compensation Appeals Board is not a recent one, but when it was brought to the attention of your humble blogger, the Law and Order music started to play and a post was deemed absolutely necessary.

Applicant Gene Tomatani apparently has three exciting accomplishments in his life (no doubt there are others as well).  The first is to serve as President of the Police Officers Association; the second is to embezzle money from the association; and the third is to file a workers’ compensation claim.

An Agreed Medical Evaluator found that applicant’s left ventricular hypertrophy and hypertension predated applicant’s criminal activity of embezzling over $72,000 from the Police Officers Association.  Therefore, as per the AME’s apportionment analysis, the injury is 2/3rd industrial.

At trial, the Workers’ Compensation Judge found that applicant had sustained an industrial injury, that he had an impairment rating of 52%, and that no apportionment was appropriate.  Now comes the interesting part – applicant was questioned regarding the extent of his criminal activity, and he plead the 5th Amendment.

The WCJ ruled that, as there were still other charges that could be brought against applicant, even though he had already plead guilty to one of them, applicant retained his right to not testify regarding the extent of his criminal activity.

Neither the Workers’ Compensation Appeals Board nor the Court of Appeal were inclined to disturb the ruling that so clearly rewarded the stress of embezzlement with workers’ compensation benefits.

Although it may seem naïve, perhaps the appropriate thing for the defense to do in this situation was to contact the district attorney’s office from the start of the case, and determine a joint course of action.  As a citizen, I would like to think that the activities of a cheating, lying, thieving police officer would be at the top of the DA’s list – public trust in law enforcement is a fragile creature, after all.  If the DA’s office is not going to pursue additional charges, there should be some affirmative statement to that effect which could be presented at the Board.

In any case be forewarned that, even in the murky world of California’s workers’ compensation law, the 5th Amendment right against self-incrimination appears to be alive and well.

Smashing Through the Eggshell Applicant Theory

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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.

The WCAB Wants Your Input!

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Previously, your humble blogger had reported the decision of Messele v. Pitco Foods, where the Workers’ Compensation Appeals Board, in an en banc opinion, attempted to provide some clarity as to the proper timeline for using the panel qualified medical evaluator system.

You read the opinion.  You understood the opinion.  You were prepared to move on with your life.  Now there’s more.

The WCAB has issued another en banc opinion, in this one stating that “it was not [their] intention to throw into uncertainty the validity of QME panels previously obtained in ongoing workers’ compensation proceedings.”

While the decision currently stands, the WCAB has proposed making it apply prospectively only.  In other words, if the panel was issued outside of the proper timeline, and a party did not object before September 26, 2011, the panel stands.

In case you’re wondering, the WCAB would like to know what you think – you can submit written comments so long as they are received no later than November 19, 2011 by sending them to the Workers’ Compensation Appeals Board, Office of the Commissioners, at either its street address (455 Golden Gate Avenue, 9th Floor, San Francisco, CA 94102) or its Post Office Box address (P. O. Box 429459, San Francisco, California 94142-9459).

Shall all the past be revisited and re-litigated?  Or shall well simply continue down the yellow brick road as if the Medical Unit has done no wrong?  We can hopefully expect some finality on this issue in a month or two.

In the meantime, I suggest getting cozy and familiar with the procedures outlined by the WCAB – the rules allow the players who know them to control the PQME specialty and, very likely, the outcome of the case.

When your faithful blogger knows more, so will you.

Almaraz/Guzman Strikes Again!

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A recent writ denied case had the unfortunate effect of rebutting the AMA guides to inflate applicant’s permanent disability from an unadjusted whole person impairment of 5% to an unadjusted WPI of 19%.

In the case of Riverford Apartments v. Workers’ Compensation Appeals Board (Jose Oliviera), applicant maintenance worker claimed a June 8, 2007 injury to his left shoulder.  The injury was accepted and the parties ended up with a Panel Qualified Medical Evaluator.

The PQME relied on Almaraz/Guzman II and applied the hernia chapter to rate applicant’s left shoulder injury.  The hernia impairments, reasoned the PQME, better reflect applicant’s work restrictions than the shoulder chapter.

I take this opportunity to direct your attention to the following side note.  I don’t know what arguments were made at trial or through the appeals process, but Almaraz/Guzman II is outdated.  Guzman III is the most recent decision on this point (and the final decision, at least for now).

The language in Almaraz/Guzman III calls for a specific description by the evaluating physician as to what makes this case complex or extraordinary.  In the absence of such a record, the AMA Guides are to be applied as written.  [For more on this topic, please review my earlier posts part i and part ii]

With that, back to the story…  The Workers’ Compensation Judge relied on Almaraz/Guzman II, and thereby adopted the PQME’s opinions to give a final award of 39% permanent disability.

Picture this – a case that begins as a typical shoulder injury with a 5% ratable impairment gets inflated into 39% permanent disability award.

The Workers’ Compensation Appeals Board granted reconsideration, only to adopt and incorporate the WCJ’s opinion.  The Court of Appeal denied defendant’s petition for a writ of review.

From my reading of this case, it appears the PQME (and, by extension, the WCJ) have a problem with the AMA Guides as written.   There is no indication this case had anything about it that was unusual or never contemplated by the authors of the Guides.  The PQME thought the [higher rating] charts under the hernia section better described the work restrictions, rather than the shoulder chapter’s description of range of motion, etc.

This case should have gone the other way.  In fact, with the close of discovery, the PQME should not have been given a chance to develop the record as to why he felt the AMA guides were rebutted.  The Guides should have remained whole and applicant should have been adjusting his 5% WPI.

Instead, well, we wake up to find ourselves in California’s Workers’ Compensation system, as opposed to Greg Grinberg’s (oddly work-related) fantasy land.

Reconsideration or Removal? Part 3 of 3

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There you sit at your office desk, opening your mail, when you see it – a bulky envelope with an applicant’s attorney’s return address.  Without opening it, you know what it is – the applicant is filing for reconsideration of some minor procedural order that the Workers’ Compensation Judge issued but 19 days ago.

You know it is not a final order and, at most, it should be a removal action.  But now the case that was going along so well has this matter to deal with.  Picking up the phone, you call your workers’ compensation defense attorney, and decide you want to try something new to get rid of this fast.

Does your attorney have some new tactic up his sleeve to help this petition die on the vine?

Here is my idea: in the case of Sergio Corrales v. Avis Rent-A-Car, the applicant’s attorney filed for both reconsideration or, in the alternative, removal of a WCJ’s order setting the underlying cases for trial.  The Workers’ Compensation Appeals Board dismissed the petition for reconsideration as improper, because the order setting the cases for trial was not a final order.  It then denied the petition for removal on other grounds.

How is this relevant?  The WCAB specifically admonished applicant’s attorney that “the filing of a petition for reconsideration to challenge the WCJ’s order setting this case for trial could be viewed as an action or conduct that is frivolous or solely intended to cause delay and subject to sanctions…”

In the case of Antonio Morales v. WCAB (2011) 76 Cal. Comp. Cases 841, the WCJ specifically recommended that sanctions be imposed for filing for recon from an order for a replacement panel, but the WCAB did not address the issue, either as a silent rejection or as an unintentional oversight.

Corrales was filed in June of 2011, and is a slightly more recent opinion than Morales.

Now comes the maneuver:

Upon receipt of the petition for reconsideration, send a letter to applicant’s attorney with a copy of the Corrales panel opinion [please e-mail me if you would like a copy of the panel decision: gregory.grinberg@htklaw.com], and a copy of a panel, en banc, or higher court opinion finding a certain act appropriate for removal but not appropriate for reconsideration.

Don’t threaten – just point out that a petition for reconsideration is not appropriate in this case and it should be withdrawn.

If the applicant’s attorney does not withdraw the petition for removal before you file your answer, seek sanctions.  If this crazy maneuver works, the applicant’s attorney will either withdraw the frivolous and inappropriate petition for reconsideration, or (hopefully) the cost of fighting the petition will be out of applicant’s attorney’s pocket.

Granted, this is by no means an established tactic – but if you’re looking to try a new maneuver, this might just work.  What’s more, there will be close cases, where there is no established precedent for whether the proper course of action is reconsideration or removal.  But, in most cases, this might just be the trick to cut delay and litigation costs.

Below are some good examples of removal and reconsideration cases.

Proper actions for removal:

  1. Finding of fact as to which of two QME panels was properly issued. Tsegay Messele v. Pitco Foods, Inc. (2011) 76 Cal. Comp. Cases 956 (en banc).
  2. WCJ’s order to take matter off calendar until applicant was re-evaluated by AME.  Gregory Lapold v. WCAB, Lloyds Transmission (2011) 76 Cal. Comp. Cases 1030.
  3. Judge’s denied of a petition to have three cases consolidated into one.  PBMS, Inc. v. WCAB (2010) 76 Cal. Comp. Cases 1015.
  4. WCJ’s order to the Medical Unit to issue a new panel following a finding of ex-parte communication.  Antonio Morales v. WCAB (2011) 76 Cal. Comp. Cases 841.
  5. Judge’s order regarding which of defendant’s representatives could attend applicant’s deposition.  Amador Padilla v. WCAB (2011) 76 Cal. Comp. Cases 191.
  6. Judge’s order denying defendant’s petition to disqualify applicant’s attorney. Advantage Workers’ Compensation Insurance Company v. WCAB (2010) 75 Cal. Comp. Cases 1415.
  7. Judge’s issuance of an order alleging that Defendant’s attorney and its adjuster were in contempt of court.  All Tune & Lube v. WCAB (2010) 75 Cal. Comp. Cases 503.
  8. WCJ’s order for additional discovery following trial to “develop the record.”  Bates v. Valley Vintners Wine Company (2011).
  9. An order granting a party motion for change of venue.  French v. Warner Brothers (2011) 13 WCAB Rptr. 13,216.
  10. WCJ’s order denying defendant’s petition to dismiss.  Barbara Guthrie v. Weyerhaeuser Company (2004).
Proper actions for reconsideration:
  1. An order finding liability for an injury.  Denise Hernandez v. Big Buy Food (2011).
  2. An order to take nothing on a Labor Code section 132a claim.  Miller v. County of Alameda (2011) 39 CWCR 208.
  3. A finding that defendant is not required to pay for a medical procedure.  Navarro v. Vengroff  Williams Associates (2011).

Reconsideration or Removal? Part 2 of 3

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Yesterday we covered the appeal of a final order through the procedure of a Petition for Reconsideration.  Today’s topic is the alternative, a Petition for Removal.

A removal action, much like a recon, must be filed within 20 days of service of the aggrieving order.  [Don’t forget the additional days for mailing!] However, the standard to proceed on removal is very different.

The appealing party must show (1) the WCJ’s order will result in prejudice; (2) the WCJ’s order will result in irreparable harm; and (3) reconsideration after a final order is made does not provide an adequate remedy. (8 CCR § 10843.)

So if an applicant’s attorney or a lien claimant files a petition for removal, there’s really no frustration involved for the defense – either there is a valid point being made, in which case defeating the petition is just part of the job, or there isn’t, in which case the high barrier set by § 10843 should do most of the work.

But if an applicant’s attorney files a petition for reconsideration, or, as appears to be the common practice, a “petition for reconsideration, or, in the alternative, petition for removal,” frustration is warranted.

Now, the case is ground to a halt, as per LC § 5910 and CCR § 10859, and the defendant has to watch the good Panel Qualified Medical Evaluator fill up his appointment book, the best witnesses move away or get forgetful, and medical bills grow and grow like the pile of abandoned food in the back of the office break-room fridge.

When the applicant’s attorney files a petition for reconsideration, alone or with the petition for removal, either because he or she didn’t bother to read the file and do the research, or with the sole purpose of delaying the proceedings, what can the defense do?

Well, the common response is to fight the petitions with an answer or two, and hope the WCAB denies the petitions.

But if you’re brave and would like to take a gamble, I’ve got a “crackpot” maneuver for you to try that I will eagerly reveal in tomorrow’s post.

Reconsideration or Removal? Part 1 of 3

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California’s Workers’ Compensation system is one with a lot of gray areas and vague notions.  Rules of evidence and civil procedure apply, but not really.  Regulations govern the proper issuance of evaluator panels, but the Medical Unit does not have to follow them.  Defendants are entitled to due process, but only sometimes.  (For some of the harshest language on this point, I direct you to the case of Fidelity and Casualty Company of New York v. Workers’ Compensation Appeals Board [“If this case is a measure, the board — despite its sheaf of rules of practice and procedure — operates in an essentially structureless environment where the vigilance of the petitioning and responding parties provides the only insurance against the arbitrary and capricious denial of due process.”]).

Well, one truth that we can all agree on, one that is constant and unyielding, is this:  sometimes the Workers’ Compensation Judges get it wrong.  And when they do, it is up to the zealous among us to make sure these errors do not go unanswered – we must appeal!

The appeal takes the form of a Petition for Reconsideration.  An alternative is a Petition for Removal.  The former is from final orders, while the latter is from orders not considered final, but resulting in prejudice and irreparable harm.  (8 Cal. Code Regs. § 10843.)

Removal and Reconsideration are two very different procedures, but their distinction is often lost on attorneys who file both in order to cover their proverbial bases.

A petition for reconsideration is filed to seek the Workers’ Compensation Appeals Board’s intervention from a final order of a WCJ.  (Labor Code § 5900.)  A final order is one which determines any substantive right or liability of those involved in the case.  (Maranian v. Workers’ Comp. Appeals Bd..) Under Labor Code section 5910, the aggrieved party has 20 days from the service of the order to file its petition for one or more of the following reasons:

(a) The WCJ or the appeals board acted without or in excess of its, his or her powers;

(b) The order, decision, or award was procured by fraud;

(c) The evidence does not justify the findings of fact;

(d) Newly discovered information not previously available;

(e) The findings do not support the order, decision, or award.

(Labor Code § 5903)

One of the immediate effects of a petition for reconsideration (as opposed to a petition for removal) is that the filing of it suspends the order of the WCJ for 10 days.  (Labor Code § 5910.)  Furthermore, the WCJ is stripped of all jurisdiction 15 days after filing.  (8 CCR § 10859.)

This means that when a WCJ issues a non-final order, the case should proceed.  But once a petition for reconsideration is filed, under the Labor Code and the Code of Regulations, the order is suspended and the jurisdiction is taken away from the WCJ.

In other words, while an attorney is just “covering his bases,” the case grinds to a halt and a good amount of legal resources go into dealing with his or her petition.

But what about the process for a Petition for Removal?  I’m glad you asked: come back tomorrow morning for Part 2 of 3!

Do Missed Wages for a Medical-Legal Evaluation Trigger 4656?

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A recent writ denied case addressed an issue near and dear to my heart – the 2-year limit of temporary disability payments under Labor Code section 4656(c)(1).  As you might recall, California recently dodged a major bullet with proposed (now vetoed) Assembly Bill 947 which would have extended temporary disability to 240 week (up from our current 104).

The main issue here was whether the payment of lost wages for the time taken to attend a Panel Qualified Medical Evaluation starts the clock on 104 weeks of temporary disability.  The answer, I am sorry to report, is no.

The case is City and County of San Francisco v. Workers’ Compensation Appeals Board.  Maria Miller, the applicant, allegedly sustained a cumulative trauma to her neck and shoulders.  On November 18, 2008, applicant attended a PQME evaluation, and defendant sent her a check for one day of lost wages.

Later she was found to be temporarily disabled and defendant commenced payments on December 18, 2009.  Later still, following surgery, applicant was temporarily disabled again, but defendant raised section 4656, saying the obligation to pay temporary disability ended on November 18, 2010.

The Workers’ Compensation Judge found that the day of lost wages for attending an evaluation does not count as temporary disability benefits, and the TD benefits actually commenced in December of 2009.

Defendant filed a petition for reconsideration, and the Workers’ Compensation Appeals Board adopted and incorporated the WCJ’s report, including the citation to the case of Caldwell v. Workers’ Compensation Appeals Board, holding that the required day’s wages and travel expenses paid to the applicant for attending an evaluation are meant to be in addition to all other benefits, and therefore § 4656(c)(1) is not triggered.

The Court of Appeal denied defendant’s petition for a writ of review.