Archive for June, 2011

On self-insuring

June 30th, 2011 No comments

In California, every employer must either have workers’ compensation insurance or become self-insured.  Given the rising workers’ compensation costs, including the costs of defending these claims, the option of self-insuring becomes more and more appealing as every dollar counts more and more.

Many of the advantages of self-insuring are outlined here by Thomas Harbinson, Esq.

Overall, the medical costs and permanent disability indemnity, along with all the other workers’ compensation benefits, will hit self-insured employers and insurance companies alike.  But, if an employer can self-insure, there are several advantages that make that initial investment worthwhile.

The first advantage is control – a self-insured company gets to make sure that the loyal, hard-working employees are taken care of.  The company also get to make the decision about whether frauds should be fought tooth-and-nail for every inch of ground or given Danegeld.  Local control allows a company to bring its culture and history to the workers’ compensation arena.

Another advantage is cost-saving.  Imagine a company owns an insurance company as a subsidiary – and all the profits can either go back to the parent company or lower the price for the one customer (the same parent company).  The profits previously owned by the workers’ compensation insurer are staying within the “family” coffers.

One of the other advantages is to pool the lobbying resources as a self-insurer.   There are groups such as California Self-Insurers Association that pool advocacy dollars to advance not only those interests that self-insurers share with insurance companies, but the specific interests of self-insurers as well.  This includes lectures, seminars and training sessions specifically for self-insurers.

But there are some drawbacks as well that need to be considered.  For entities with relatively small claims files, the insurance companies will do the job cheaper because of economies of scale.  However, the answer to that is to join a self-insured group.   This allows several companies to pool their resources together and (hopefully) save on the costs of insuring their employees.

And remember – self-insured doesn’t necessarily mean self-administered.  There is a spectrum of options from just sending a check to a workers’ compensation insurance company to keeping it all in the company.

Another drawback is the (erroneous, I believe) perception that employers will be seen as the “bad guy.”  However, if a worker feels he is not being taken care of fairly when he is hurt, he’s going to blame the company that hired the workers’ compensation insurer as much as the employer, whether there is self-insurance or not.

In either case, self-insuring is an option that should be explored and considered when ends must be made to meet.

Categories: Uncategorized Tags:

Fraud and more Fraud

June 29th, 2011 1 comment

Quis custodiet ipsos custodes?

It is an unfortunate fact that insurance companies and self-insured employers often have to lose money to fraud: so-called injured workers who claim more disability than they have sustained.

Because of this fact, the cost of this fraud is passed on to the average consumer, who pays a higher price for goods and services, the higher revenues from which are used to pay for higher insurance premiums.

Private companies are not the only victims, and sometimes the government, sleepy eyed from collecting taxes from private companies (although, not all private companies) and citizens, has its own pockets picked.

It’s not Robin Hood that does this – there are no merry men in green tights involved.

In one recent case, an Oxnard police officer stands accused of workers’ compensation fraud.  Edward Idukas, the law man in question, allegedly claimed he was too injured to work, but then an investigation revealed he was regularly playing baseball while collecting benefits.

In a similar story, Oscar Fuentes III, of Willits, was arrested for alleged insurance fraud after an investigation allegedly revealed that, while receiving workers compensation benefits, he was coaching baseball, performing yard work and other physical activities.  It appears that an investigation was launched after Mr. Fuentes filed a petition to reopen, seeking to raise an in-place award for 45% permanent disability to 100% permanent disability.

Coincidentally, Mr. Fuentes was a manager of the Department of Corrections and Rehabilitation, San Quentin State Prison.

Private employers, public employers and insurance companies do well to hire veteran investigators with a nose for funny business.  The seed money sown in an investigation unit that develops a cooperative relationship with law enforcement reaps not only the small amounts of funds recovered through restitution orders, but also the deterrence effect of prison time.

To the deputy district attorneys, to the private investigators, and to the determined adjusters that won’t have their companies robbed, I say in all sincerity:  good hunting!

Categories: Fraud, News Tags:

On Benson (Part II)

June 28th, 2011 No comments

Yesterday we discussed the use of the Benson decision and how we can break up large permanent disability ratings into smaller (and cheaper) ones.

But what about large periods of cumulative trauma?

Well, look to see if there were any gaps in the cumulative trauma or any periods of disability dotting the timeline of alleged disability.

In the case of Ferguson v. WCAB (1970) 35 CCC 452, the applicant claimed a cumulative trauma, but had a period of disability in the middle of the timeline for which he was off work.  The Board held that, under Labor Code § 3208.2, the applicant actually sustained three injuries:

(1)    A cumulative trauma ending at the time of the specific injury;

(2)    A specific injury

(3)    A cumulative trauma beginning after the applicant returned from disability for the specific injury, and ending with the last day worked.

If you’re faced with a long period of cumulative trauma, try to look for periods of disability.  A theory with some potential, one which I’m not aware of having been tried yet, is to argue that periods off work for non-industrial injuries should serve to break up cumulative trauma into separate injuries as well, akin to the specific injury in Ferguson.

Once you use Ferguson and § 3208.2 to effectively break up the single cumulative trauma into several little ones, write to the Qualified or Agreed Medical Evaluator requesting that each injury be given its own rating under Benson (Benson v. WCAB (2009) 170 Cal.App.4th 1535) and Labor Code § 4663.

Remember, permanent disability indemnity goes up drastically as you climb the impairment ladder.  One of the best ways to bring that impairment number down (as well as the amount the applicant will eventually be entitled to) is by breaking the whole impairment into its individual parts.

Good hunting!

On Benson (Part 1)

June 27th, 2011 No comments

Ready for a discussion of Benson and related authorities that lasts the span of a few minutes?  California Workers’ Compensation allows the defense a few maneuvers here and there to keep things interesting.  Here’s what you need to know about Benson.

Each injury, past or present, gets its own rating and the impairment of an applicant gets broken up into injuries and causes.  (Exception: if there is no way for the physician to parcel out the individual injuries with reasonable medical certainty, then a combined award may be appropriate.)

Pre-SB 899, the rule governing multiple injuries to one body-part was articulated in Wilkinson v. WCAB ((1977) 42 CCC 406).  The rule there was:  if there are several injuries to the same body part that become permanent and stationary at the same time, there is no apportionment and there is one massive impairment rating.

This means that four injuries to a body part that each cause an adjusted 5% disability ($2,760.00 x 4 injuries = $11,040.00) would actually be calculated as 20% disability ($17,365.00).  Mind the $6,325.00 gap – imagine the difference with the higher impairment brackets!

Enter SB 899 and the case of Benson v. WCAB (2009) 170 Cal.App.4th 1535Benson held that “each distinct industrial injury [must] be separately compensated on its individual contribution to a permanent disability.”  (Benson, supra, 170 Cal.App.4th at p.  1560.)

Remember to cite Labor Code § 4663 as well, especially subsection (b): “Any physician who prepares a report addressing the issue of permanent disability due to a claimed industrial injury shall in that report address the issue of causation of the permanent disability.”

If a treating or evaluating physician doesn’t include a discussion of apportionment, even amongst the various claimed injuries, then the report is not complete under subsection (c).  Usually, a letter requesting a supplemental report should do the trick.

So if you have an applicant claiming both a cumulative trauma and a specific injury, invoke Benson and break that claim up into pills a bit easier to swallow.

But that’s not all Benson is good for!  What if you have a claim for a lengthy period of cumulative trauma – one which comes with a QME report of heavy impairment rating?


The dramatic conclusion… tomorrow morning.

Flash News! SAWW Mandates TD Increase

June 24th, 2011 3 comments

Some news that’s been traveling around the California Workers’ Compensation blogosphere has found its way to this site.  The state average weekly wage (SAWW) has increased, and so shall the minimum and maximum temporary disability payments for insurance companies and self-insured employers.

Under Labor Code § 4453(a)(10), “[c]ommencing on January 1, 2007, and each January 1 thereafter, the limits specified in this paragraph shall be increased by an amount equal to the percentage increase in the state average weekly wage as compared to the prior year.”

As per the code section, the test is the weekly wage as reported by the United States Department of Labor for the 12 months ending on March 31st.

So for 2012, the fate of temporary disability payments was sealed on March 31st, 2011.  According to the U.S. Department of Labor (scroll down to see California), the average weekly wages are now $1,003.55.

As per Labor Code § 4659(c), this increase will also affect the pensions of those employees injured on or after January 1, 2003.

On the one hand, this means more payouts, higher insurance premiums, and a slightly larger incentive to file a claim.

On the other, it provides more of an incentive to fight bad or fraudulent claims.  Remember, even a $50 increase in temporary disability, over two years [see Labor Code § 4656(c)(2), totals $5,200.00.  If the claim is fraudulent, that’s money that no defendant should have to pay.

Slight increases in temporary disability, just like any other indemnity, add up and quickly become cheaper to fight than to pay.  After all, when a self-insured employer or an insurer gets a reputation for big settlements, the claims increase to match.  Just a thought.

Categories: 4453, News, Temporary Disability Tags:

Substantial compliance with 4658(d)

June 23rd, 2011 No comments

While we’re on the subject of Labor Code § 4658(d), let’s take a hypothetical.  Andy the applicant slips and falls at work.  He twists his ankle and it’s hard for him to work.  He goes to see a doctor on the same day, and the following morning returns to work.  He tells his supervisor that he needs to stay off his leg, but other than that he’s fine.

Naturally, Andy’s supervisor puts him to work at the same job – sitting at a desk and working the call center.

Eventually, Andy files a claim and the matter proceeds to trial.  As the defense attorney is filling out the Stipulations with Request for Award form, he gets to page 6 and is stumped – is there a 15% increase because the employer never sent out an offer of regular work?  Is there a 15% decrease because Andy never missed work?  Does this section even apply?

For the moment, the authority seems limited and split.  Fortunately, both splits are relatively good for the defense!

In the panel decision of Hisato Tsuchiya v. County of L.A. (ADJ2508984) [scroll down to page 50], the panel found that the 15% increases and decreases do not apply when no time was lost due to the injury.   In other words, the defendant was not penalized 15%, but didn’t get the benefit of a 15$ reduction either, because the proper paperwork was not done.

In another decision, Wendy Audiss v. City of Rohnert Park (2007 Cal. Wrk. Comp. P.D. Lexis 9), the Board went further to favor the defense.

There, the Board held “[d]efendant’s compliance with the purposes of this provision is evidenced by the fact that as of the date applicant became permanent and stationary March 31, 2006, she was employed by defendant performing her regular work … The subsequent timing of defendant’s offer is not dispositive for the purposes of this provision, where applicant has been employed full time in her regular work.”

Of note here is the fact that there was a formal offer of work made, but, because of late service of the treating physician’s P&S report, this offer was made more than 60 days after applicant was permanent and stationary.

Subsequent authority might later hold that, unless the Notice of Offer of Modified or Alternative Work is actually sent, the applicant will receive a 15% in permanent disability payments.  I’ve known some adjusters to safeguard against this by always sending the offer of alternative work, even when the applicant’s employment has been terminated for cause.

In the meantime, it is important to press for that 15% decrease if the employee is back to work at any time before the 60-day-mark of the Permanent and Stationary report.

Categories: 4658 Tags:

Jumping to conclusions on § 4658

June 22nd, 2011 No comments

Under Labor Code § 4658(d) an applicant’s permanent disability payments can be increased, or decreased, by 15% if he or she returns, or doesn’t return, to work.

Essentially, the employer has sixty days from the date the applicant becomes permanent and stationary to offer an employee regular work, or the rate of permanent disability payments goes up by 15%.

In the alternative, if, at any time before the sixty days elapse, the employer makes an offer of regular work, then the permanent disability payments are decreased by 15% (immediately, not after the 60 days).

What happens if, up until trial, the issue goes unaddressed?  Like that sandwich in the back of the office refrigerator, always there and never eaten, what if everyone assumes that addressing this is someone else’s responsibility?

For example, let’s say Jill gets hurt at work and files a claim.  The litigation back-and-forth begins, and ultimately there is a trial before a workers’ compensation judge.  At no point is the 15% increase claimed or raised as an issue, nor is the right to a 15% decrease claimed or raised, until the WCJ, in making an award, decides do add it on.

At this point, the WCJ has heard no evidence one way or another – there is nothing in the record regarding whether or not Jill returned to work and, if she did, whether it was within 60 days of becoming permanent and stationary.

Is the WCJ right in raising the issue him or herself after the record has closed?  Is the WCJ to assume that Jill gets the 15% increase?

In the Reconsideration Granted opinion of Maria Parra v. E. & J. Gallo Winery (2011 – ADJ6536976) [Handled masterfully, again, by Thomas J. Harbinson (my boss) and Laura K. Lachman of Harbinson Tune Kasselik], those questions were answered.

By raising the issue of permanent disability, the issue of § 4658(d) is implied (the Board cited Bontempo v. Workers’ Compensation Appeals Board (2009) 173 Cal.App.4th 689).

However, a WCJ is bound by Labor Code § 5903(c), specifically that evidence must justify the findings of fact.  This was not the case here – the WCJ did not make any findings of fact as to § 4658(d).

In other words, the WCJ can’t simply assume the insurer or self-insured employer owes money without finding the facts on which to base this assumption.

It’s easy to get cynical being a defendant in California’s Workers’ Compensation system.  Don’t!  You shouldn’t have to give up an inch of territory that’s yours.

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Almaraz/Guzman – the howling in the night (Part II)

June 21st, 2011 No comments

Last time we covered the state of the law – specifically the state of Almaraz/Guzman and the wiggle room given to evaluating physicians to increase the whole person impairment.   Is there nothing that can be done to curb the inflation of permanent disability?  As a matter of fact, there is.

Your typical Almaraz/Guzman medical report reads something like this:  “The applicant underwent a partial medial and lateral meniscectomy.  Utilizing Table 17-33, this is a 4% whole person impairment.  Taking into consideration the Almaraz/Guzman case, noting his symptoms, Table 15-6 should be used and I would assign him an additional 9% whole person impairment.”

The rating just went from an unadjusted $2,760.50 in permanent disability indemnity to an unadjusted $9,717.50.  Factoring in profession, age, etc. the ratings can go drastically up.  Often enough, these ratings are combined as expressly prohibited by the AMA Guides.  So what’s the solution?

Milpitas Unified School District v. WCAB (Guzman III) (2010) 187 Cal.App.4th 808 pricks the ever-inflating whole person impairment balloon.  According to Guzman III, an evaluating physician can only deviate from the AMA Guides in “complex or extraordinary cases.”  These are cases that are “new or complex … or the range, evolution, and discovery of new medical conditions.”

In terms of actually performing an Almaraz/Guzman increase, simply invoking the name Almaraz/Guzman is not enough.  Guzman III holds that “[i]n order to support the case for rebuttal, the physician must be permitted to explain why departure from the impairment percentages is necessary and how he or she arrived at a different rating.”

In other words, when you’re faced with an Almaraz/Guzman rating, ask yourself the following questions:

1)      Did the evaluating physician describe a condition that is “complex or extraordinary,” and one that deals with a “new or complex case” dealing with the “range, evolution, and discovery of new medical conditions?”  If the answer is no, then the impairment rating as increased by the non-strict application of the guides is not substantial evidence.

2)      Did the evaluating physician “explain why departure from the impairment percentages is necessary?”  If Dr. Ouch! simply says it is based on his experience, then the portions of the report addressing Almaraz/Guzman increases are not substantial evidence.

If one, or both, of those questions is answered in the negative, then the report should proceed on strict AMA Guides ratings only.

This argument was used successfully in a recent unpublished panel decision, where the WCAB held that “the AME has not adequately explained his use of [the tables] for spinal impairment for station and gate disorders, where the Guide specifically states that gait derangement impairment is not to be combined with a Diagnosis Based Estimate method.”

The Almaraz/Guzman increase-happy report can be whittled down, and this is how you do it.

In the near future, I’ll discuss how you can use the arguments to permanently shave off the Almaraz/Guzman increases.  But that is a post for another time.  Good hunting!

Almaraz/Guzman – the howling in the night (Part I)

June 20th, 2011 No comments

So there’s the bad news and the not as bad news.  First, the bad news.

Circling the wagons against the Wild West of permanent disability and waiting for the Court of Appeals cavalry, hoping  for a reversal against the ravages of Almaraz/Guzman, is no longer an option.  The sun has set, no Cavalry bugle will sound, and the latest appeal of Almaraz/Guzman had dried up.  Almaraz has at last received closure from the 5th Appellate District.

The reforms of SB – 899 brought several changes to the California Workers’ Compensation system, most of them very good.  Among those reforms was the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fifth Edition (AMA Guides, or the Guides, for short), at least according to Labor Code § 4660.  As enacted, there would be one set rule for rating and appraising permanent disability, making Workers’ Compensation liability consistent, uniform, and objective, as called for by Labor Code § 4660.  That was the dream that drew our wagons out West to begin with.  Then, came the troubles…

The joint cases of Almaraz/Guzman, to some extent, did away with this portion of the reform, and brought back the uncertainty that ruled pre-SB 899.  Almaraz/Guzman seized upon the language of § 4660(c), specifically the fact that “[the AMA Guides] … shall be prima facie evidence of the percentage of permanent disability to be attributed to each injury covered by the schedule.”  (Almaraz v. Environmental Recovery Services (2009) 74 Cal. Comp. Cas 1084).

According to Almaraz, and its companion case, Guzman v. Milpitas Unified School District, the AMA guides, contrary to the call for “consistency, uniformity, and objectivity” can be twisted and turned to suit the vagaries of “fairness” and “equity,” inflating the whole person impairment rating and exhausting insurance reserves.

Before a series of appeals chipped away at this decision, the only limitation (like limiting a child to all the cookies in the cookie jar), was that the evaluating physician had to remain within the four corners of the AMA Guides, in order to “adequately” evaluate the applicant’s impairment.

So where are we now?  Well, on the final round of appeals, Almaraz and Guzman split off.  While Guzman went on to produce the Guzman III opinion (more on this later), Almaraz is done with.

The bad news is that Almaraz is, for now, the law of the land – evaluating physicians can use any part of the AMA guides to evaluate the impairments of the applicant.  This means using charts for the spine to provide an impairment degree for the knee, combining methods of measuring impairments such as grip loss and range of motion loss (specifically prohibited by the Guides), and whatever else appeals to the doctor’s (and the persuasive letters of the applicant’s attorney) sense of judgment.

Left at that, self-insured employers and insurance companies rightly fear the Almaraz beast that stalks the night – by day, an ordinary man; under the full moon the monster that ravages the country-side of Workers’ Compensation.  Fortunately, there is a silver lining (or a silver bullet?)

What’s the less-bad news?  While Almaraz lets evaluators loose on Workers’ Compensation defendants, Guzman reigns them in with a tight leash.  How to use this silver bullet on the charging Wolfman?  Stop by tomorrow, and you’ll see.

When you believe in magic (and § 4663)

June 17th, 2011 No comments

Sally the secretary, while seated at her desk, bends over to pick up a file.  Hearing a pop in the back and immediately feeling pain, she then undergoes a series of treatments, including laminectomy and fusion on the L4-5 discs.  Since this is a pre-2005 injury, at high noon, the dueling Qualified Medical Evaluators meet to settle their sides’ differences.

Applicant QME’s weapon of choice?  The standard go-to: 100% industrial causation, no apportionment.

Defendant’s QME answers with a 70% non-industrial causation – Sally’s multilevel degenerative disc disease and degenerative scoliosis.

Of course, Sally argues that (1) there is no prior award; and (2) she was, as she says, asymptomatic before her industrial injury.  So why should there be any apportionment at all?

Defendant had nothing to rely on at all, except some vague and generally rejected reference to the Labor Code.

Whose shot proved the truest?  Well, the answer to that depends on who you ask.  The WCJ issued a Finding and Award based on applicant’s QME’s opinion, finding 100% industrial causation.  The Appeals Board saw it differently…

Relying on Labor Code § 4663, the Appeals Board sided with defendant in this case, saying the law is the law, and no symptoms need have existed prior to the industrial injury.   Applicant’s writ of review was denied.

It just goes to show you – sometimes it really is worth it to go through the recon process.   When the case comes out on Lexis, take a look for yourself:  Frances LaRue v. Workers’ Compensation Appeals Board, State Compensation Insurance Fund.

Categories: 4663, Apportionment Tags: