Archive for July, 2011

STOP “Developing” the Record!

July 29th, 2011 No comments

Are you tired of locking down evidence at the Mandatory Settlement Conference, proving your case at trial, and then being told to start over again by “developing the record?”

Again and again, California Workers’ Compensation defense attorneys witness judges helping applicants take a second or third shot at the target, often being told specifically what evidence needs to be added to the second trial to justify an award (or a bigger award).

Two recent Workers’ Compensation Appeals Board panel decisions seem to be starting the trend away from this practice.

In the cases of Bates v. Valley Vintners Wine Company (2011) and Elias v. Saticoy Lemon Association (2011) [Full disclosure: the former case was handled masterfully by Thomas J. Harbinson and Laura K. Lachman] the panel put a stop to this “develop the record” trend.

In Bates, after the MSC and trial, the Workers’ Compensation Judge disregarded defendant’s references to apportionment evidence and the rater’s use of an incorrect occupational group number for the applicant, finding him permanently and totally disabled based solely upon the Le Boeuf expert’s independent opinion without backup support.

Following defendant’s petition for reconsideration, the WCJ rescinded the Findings and Award, and instructed the parties to appear for further trial proceedings to “develop the record” to allow additional testimony from applicant’s vocational rehabilitation expert on the issues of “vocational feasibility, labor market survey, and/or necessity for vocational testing.”  Defendant responded by filing a petition for removal.

Citing Labor Code § 5502(e)(3), the WCAB held that discovery closes at the MSC.  Furthermore, once “the record is supported by substantial evidence from which a decision can properly be made, there is no basis to order development of the record.”  (Citing San Bernardino Community Hosp. v. Workers’ Comp. Appeals Bd.)

Similarly, in Elias, the WCJ vacated the submission of evidence and ordered development of the record on the issue of causation, also demanding the production of an additional opinion from the treating physician.

Defendant petitioned for reconsideration (which the WCAB held was improper, and instead ordered removal).  The WCAB again held that, absent a “showing that there was evidence applicant could not have discovered or obtained in the exercise of due diligence prior to the MSC,” Labor Code § 5502(e)(3) [the statute is erroneously cited as (d)(3) in the opinion] prohibits the admission of new evidence.

My favorite quote from the Elias opinion?  “In ordering parties to obtain [additional evidence] the WCJ is, in effect, doing applicant’s attorney’s job.

Both WCJs were instructed to issue a decision on the present record.

Of Broken Hearts and Broken-down Benefits

July 28th, 2011 No comments

Jack and Jill fall in love and get married.  Jill hurts herself coming down the well and makes a Workers’ Compensation claim.  Because Jill fell in 1992 and this occurred under the California Workers’ Compensation system, this was going to be a long, drawn-out affair.

Jill’s injury left her unable to work, and, in 2002, she received a lump sum award of just over $172,000 (after her lawyer was paid).  In 2005, Jack and Jill decided to go their separate ways, but there was some dispute as to how, exactly, they ought to split the sheets.

Jill, of course, maintained that the Workers’ Compensation award was her separate property!  Jack, on the other hand, claimed that it was community property and should therefore be split between them, in accordance with Family Code § 760.

So what is the right answer?  Are Workers’ Compensation benefits community property?  Or do they stay with the injured spouse?  That was the issue in the case of In re the Marriage of Flora S. and George L. Ruiz (2011).  [Practitioners, be careful – not all parts of this case are certified for publication.]

The trial court held, and the Court of Appeals affirmed, that the portions of a lump-sum Workers’ Compensation award that are meant to cover out-of-pocket expenses for medical treatment and to replace the lost earning capacity during marriage are community property.  The rest sits comfortably in the injured spouse’s pockets.

But here’s the catch – the burden of proof lies squarely on the injured spouse to prove that this property is separate.  Without some proof as to how the lump sum was calculated, the injured spouse is out of luck.  Otherwise, the Family Code presumption kicks in and the community wins.

The implications of this case are something to look out for when the injured worker wants to itemize his or her benefits award (Yes, I’ll waive reimbursement for medical treatment if you note in detail that all benefits are for lost earning capacity…)

Categories: Uncategorized Tags:

Defining the Scope of the Good-Faith Personnel Action Defense

July 27th, 2011 1 comment

In a recent case, County of Sacramento v. WCAB (Michael Brooks) (2011) 13 WCAB Rptr. 193 , the Workers’ Compensation Appeal Board interpreted the good-faith personnel action defense, further clarifying its scope.  (Sorry folks, no good news is headed our way on this one…)

In California Workers’ Compensation practice, recent years have seen a growing number of psyche claims tacked on to other injuries, but sometimes as stand-alone injuries as well.  In both cases , the insurer/employer should look closely at the good-faith personnel action defense of Labor Code § 3208.3(h).

Essentially, an otherwise compensable psychiatric injury shall not be compensable for an injury “substantially caused by a lawful, nondiscriminatory, good faith personnel action.”

In the Brooks case, the applicant, a Supervising Deputy Probation Officer with the County of Sacramento Probation Department filed a complaint against a subordinate for excessive force in subduing a juvenile inmate.  An investigation followed, during which Mr. Brooks perceived a total lack of support from his supervisors and employers, and the over-enthusiastic employee filed a grievance against the applicant..

After filing an application, the parties used an Agreed Medical Evaluator who found that applicant’s psychiatric impairment, Adjustment Disorder with Depressed and Anxious Mood, was caused, in equal parts, by (1) the filing of the grievance; (2) defendant’s investigation; and (3) his feelings of being unsupported.

The Workers’ Compensation Judge found that the defense of good-faith personnel action was not met and made an award in favor of applicant.  Defendant filed for reconsideration.

On reconsideration, the WCAB affirmed the WCJ’s decision, finding two of the components causing the impairment did not qualify as good-faith personnel actions, so only 33% of the causation qualified for the defense, rendering the § 3208.3(h) inapplicable.

As the WCAB reasoned, the term “personnel action” as used in § 3208.3(h) is “conduct attributable to management in managing its business.”  The WCAB expressly rejected the position that the scope of “personnel action” encompasses “all actions by any level of personnel in the employment situation.”  (13 WCAB Rptr. 193, 194).  Among those actions not covered by the defense are the actions of one employee against a fellow or lesser employee, unless authorized or ratified by management.

Therefore, the WCAB concluded, while the investigation was a good faith personnel action, the grievance filed by applicant and applicant’s own feelings in response to his perceptions regarding management were not good-faith personnel actions.

Defendant has filed a Petition for Writ of Review, which was issued on June 23, 2011.

In reading these facts, I can’t help but think that the Board erred in its conclusion.  I agree that the process of filing a grievance might not be covered by the defense of § 3208.3, and no one is contesting the finding that management’s investigation falls well within the scope of the same.

But defendant’s approach to handling this matter, and the degree of support provided to applicant throughout the process, is a good faith personnel action in and of itself.  Therefore, applicant’s reactions to this good faith personnel action should be folded into the personnel action, and thereby be covered by the defense.

After all, every time the good faith personnel action defense has been used successfully, there must have been some reaction from the applicant to the action itself.  Perhaps the Court of Appeals shall see it the same way as does your humble author?

Categories: 3208.3, Defenses Tags:

New Mileage Rate Increase as of July 1, 2011

July 26th, 2011 No comments

I’m sure you’ve seen/heard this already, but a friendly reminder never hurts.

As of July 1, 2011, the mileage reimbursement rate for medical treatment and medical-legal evaluations went up to 55 cents (from 51 cents).  Labor Code § 4600 (e)(2) requires the reimbursement of an injured worker’s reasonable expenses of transportation.  This is usually simple mileage for driving to and from appointments, but can also include flights and driving services.

The mileage rate is set by the Director of the Department of Personnel Administration, pursuant to Government Code § 19820.  Generally, this tracks the rate set by the Internal Revenue Service, which announced on June 23, 2011, the increase to 55 cents.

This is a relatively minor difference, but it cause a headache to deal with and give applicants more grounds to perceive themselves as wronged, especially when considering the potential for 25% penalties under Labor Code § 5814.

Categories: 4600, News Tags:

Fingering Subsequent Injury Fund for Liability

July 25th, 2011 No comments

California Workers’ Compensation provides a fund for serious subsequent injuries where a previous injury combines with a more recent one to cause permanent disability (PD).  (See Labor Code section 4751)

Subsequent Injury Fund’s (SIF) coffers present an additional pocket for the injured worker.

In the case of Becerra v. WCAB (2011), an applicant filed a claim for a 1999 injury to his back and psyche.  He already had a past injury that resulted in the amputation of one joint of the right index finger.  The parties used Agreed Medical Evaluators for both injuries, resulting in 67% PD for the back and 44% PD for the psyche.

Under the 1997 rating schedule (see page 7-16), these two values combine to 86% permanent disability.  The WCJ did not find applicant 100% permanently disabled on medical grounds alone.

The dueling vocational experts did not find the finger injury a factor in applicant’s lost ability to compete in the labor market.  Applicant was found 100% permanently disabled based on the medical and vocational evidence, attributed solely to the 1999 injury.

After settling his case in 2009, applicant filed a claim for SIF benefits, claiming that the amputated finger joint and back injury combined to create a greater disability – the back/psyche injury of 1999 did not make him 100% disabled, but rather 97% permanently disabled (the finger, as the theory went, did the rest).

The WCJ rejected applicant’s theory, reasoning that nothing in the record suggested any portion of applicant’s permanent disability, or vocational rehabilitation analysis, came from the missing finger joint.

The WCJ found for SIF, the Workers’ Compensation Appeals Board denied reconsideration.  The Court of Appeals’ response?  Writ of review denied.

Defendant didn’t benefit much from SIFs involvement in this case.  However, if you have an applicant with a past injury, bringing SIF in as a secondary target should always be explored.  If nothing else, more settlement money in the room means less settlement money out of your pocket!

Helllloooo Nurse (Case Manager)!

July 22nd, 2011 No comments

A nurse case manager assists applicants in administering their benefits, particularly medical benefits.  This service involves scheduling appointments, coordinating transportation, and speaking with treating physicians about the nature and extent of care, often informing the party stuck with the bill, the self-insured employer or insurance company, of what’s going on.

This service is paid for by the party liable for the future medical treatment, and is one of the recognized forms of “treatment” under Labor Code § 4600, if it is “reasonably required to cure or relieve the injured worker from the effects of his or her injury.”

Bear in mind, unlike a typical nurse, a Nurse Case Manager does not provide actual treatment.  This job generally entails providing some sort of realistic anchor in speaking with the treating physicians and keeping the insurer/employer appraised of the situation.  This way, doctors are not swayed into recommending elbow surgery under a lower extremity medical award.

But who gets to choose the Nurse Case Manager, if one is to be provided?  California Workers’ Compensation law provides that an employee may choose his or her own treating physician.  (Labor Code § 4601).  Even with the Medical Provider Network limitations of Labor Code § 4616, the employee still has his or her choice of physician within the network.

As for the Qualified Medical Evaluator, the panel process outlined in Labor Code § 4062.2 controls that choice, with each party striking one of three panel physicians until there is only one left standing.  Yet the law is relatively silent as to who gets to choose the Nurse Case Manager.

Whoever controls the Nurse Case Manager controls the flow of information to the insurer and the treating physician (some of it at least).  Understandably, there is something at stake here.

In the case of Lamin v. City of Los Angeles (2004), the Workers’ Compensation Appeals Board addressed this issue, and, having procured a magician’s hat and wand, mystically waved the latter and pulled the following “preferred” process from the former:

1)      The defendant is to appoint a nurse case manager;

2)      If the applicant objects, the parties are to try to reach an agreement and appoint an “Agreed Nurse Case Manager”; and

3)      If no agreement can be reached, the Workers’ Compensation Judge is to appoint a Nurse Case Manager, considering each candidate’s (a) training, experience, qualifications, skills, and effectiveness; (b) potential conflict of interest; and (c) the recommendations of the treating physician.

It’s hard not to be cynical as a workers’ compensation defense attorney, and I’m trying my best, but the defendant is to have no control at all over this treatment?  A nurse case manager is supposed to be a professional and impartial observer, making sure the treating physicians get the actual facts and the insurer doesn’t get robbed.

Next, the applicant will demand to choose his own transportation company, his own adjusters, and (eventually) his own defense attorneys to deal with (exaggeration, I know).

The waters have been fairly calm on this issue of late, but sooner or later this issue will come forward again and hopefully we’ll get a different decision on appeal.   Have you ever had an applicant demand his or her choice in Nurse Case Manager?  Let me know:

Categories: Nurse Case Manager Tags:

Statute of Limitations With Teeth

July 21st, 2011 2 comments

In California Workers’ Compensation defense practice, the Statute of Limitations defense is always in the back of the practitioner’s mind.

Labor Code § 5405 limits “[t]he period within which proceedings may be commenced” to one year from (a) the date of injury; (b) payment of benefits; or (c) provision of medical treatment.

A recent Writ Denied case (Barragan v. WCAB) defines the meaning of commencement of proceedings and puts some fresh teeth into the jaws of that old SoL dog.

Applicant claimed an injury to his back and neck occurred in October of 2006.  Defendant provided some medical treatment, but denied the claim in January of 2007.

Defendant took applicant’s deposition in March of 2008.

Applicant claims to have filed an Application for Adjudication of Claim on July 3, 2007, but no record of this was in the Board file, served on defendant, nor added as an exhibit at the Mandatory Settlement Conference.  Nor was this 2007 application marked for identification at trial.

The Court of Appeals declined to review the WCAB decision that a deposition does not institute proceedings.  Only an Application for Adjudication of Claim can satisfy the requirements of Labor Code § 5405.

In other words, an applicant must file an Application for Adjudication of Claim within one year of the latest of parts (a), (b) or (c) above.

A deposition does not commence proceedings, nor a request for documents, nor a letter to applicant’s attorney, nor a get-well-soon card signed by every one of the applicant’s co-workers.

I like this case for yet another reason – the applicant did not put on all the evidence he could have, namely the allegedly date-stamped application that would have defeated the Statute of Limitations defense.

But the Workers’ Compensation Appeals Board did not send the case back to the Workers’ Compensation Judge to “develop the record” and allow applicant another swing at the ball.

The MSC came and went, discovery opened and closed, and that, as they say, was that.

In other words, the Statute of Limitations defense appears to have some teeth yet.  And to illustrate this point further, here is a short video on the Statute of Limitations defense.

Categories: Defenses, Statute of Limitations Tags:

Limiting Applicant to One Bite at the Apple

July 20th, 2011 2 comments

Have you heard the one about the applicant who tried for two bites at the apple?  The story goes like this:

The applicant claimed an injury.  His treating physician found relatively limited permanent disability, and the impairment he sustained was mostly not industrial in causation.  So he demanded a panel and got a list of three physicians.  He picked one (perhaps randomly, perhaps after an internet search of each doctor’s name).

The Panel Qualified Medical Evaluator confirmed the treating physician’s diagnosis, and the defendant-employer/insurer issued a denial notice.  So the applicant decided to call in the cavalry and lawyer up.

By the time this case reaches the applicant’s attorney’s desk, the applicant has painted himself into a corner.  With the treating physician and the PQME both finding against most of his claim, there is only one course of action – get a new panel, of course!

In California’s Workers’ Compensation system, the law is clear: only one bite at the apple.  Labor Code § 4062.1 specifically states: “[i]f an employee has received a comprehensive medical-legal evaluation under this section, and he or she later becomes represented by an attorney, he or she shall not be entitled to an additional evaluation.”

So applicant’s attorney will try to find some defect with the panel or some defect with the defendant’s conduct while applicant was unrepresented, and demand a new panel based on this.  Don’t let him get away with it!

Labor Code § 4062.3(f) gives applicant one of two mutually exclusive choices: either proceed with the evaluation as scheduled or demand a new panel.  Once applicant has set foot in the PQME’s office, the panel gravy train grinds to a halt (or should, at least, if the law has any control over the matter).

When applicant has waived every right to a new panel and proceeded with that initial evaluation, the fallback argument for the applicant’s attorney involves the following: “But my client didn’t know his rights! No one advised him!”

At that point, you take out your letters and benefits notices sent to applicant, showing the form language “you have the right to consult an attorney, etc., etc.” and you’re (hopefully) home free.

In any case, the defendant has already paid for one evaluation and had zero input on who the PQME would be.  After all, in unrepresented cases, no party gets to strike a PQME, the applicant just chooses one.  (Labor Code § 4062.1)  One bite out of defendant’s budget is plenty.

I’ve encounter some other arguments for why a formerly unrepresented applicant deserves a new panel, but that is material best left for another post.

As always, dear readers, your humble author wishes you luck in your coming trials, in court and out, and hopes this modest article has provided some assistance.

Categories: QMEs, Tactics and Strategy Tags:

The Defendant’s Burden of Finding a Treating Physician

July 19th, 2011 No comments

Let’s say applicant has managed to wring an award of permanent total disability out of the defendant-employer.  Future medical treatment is, of course, included.  The defendant wisely established a Medical Provider Network under California Labor Code § 4616, and the applicant’s treating physician is within this network.  What’s the problem?  Glad you (mentally) asked…

Applicant, after a few years of treatment, receives a phone call from her primary treating physician’s assistant.  The assistant explains that the PTP is no longer taking workers’ compensation cases.

The applicant calls her lawyer who calls the defendant who gets to work finding a new PTP for applicant.  Why is the defendant heading up the search?  Because Labor Code § 4600 says that “[m]edical … services … shall be provided by the employer.”

After several months of phone calls and searching, it appears that applicant’s (former) PTP was not the only one – none of the physicians in defendant’s otherwise valid MPN are taking workers’ compensation patients.

Before too long, defendant’s adjuster is staring at applicant’s declaration of readiness to proceed and the “present issues” field has the box “other: penalties” clearly checked.

These are the essential facts of Rodriguez v. Pea Soup Andersen’s Best Western (2011), a recent Workers’ Compensation Appeals Board case addressing the issue of who bears the burden of finding a physician for applicant.

The WCAB ultimately found that defendant’s MPN was defective in that there was no physician within applicant’s geographic area willing to treat her.  As such, defendant was obligated to pay for a PTP of applicant’s choice outside of its MPN.

Regarding penalties, the WCAB held that defendant had made reasonable efforts to find a physician for applicant, and that no unreasonable delay had occurred.

Ultimately, this case stands for the point that an MPN is, unfortunately, not a static thing but a creature that changes and grows this the seasons.  In order to retain the protections of the MPN, much like retaining the protection of a camp-fire in the outdoors, the MPN must be fed and tended to with regular maintenance.

If State Compensation Insurance Fund can restrict its doctors’ abilities to prescribe compound drugs, perhaps a contract clause regarding notification should be included as well?

When an MPN doctor stops accepting workers’ compensation patients, that doctor should notify the insurer so that a replacement doctor could be found while other doctors are still accepting workers’ compensation patients.

Even with this limitation, MPNs remain a great tool for protecting the applicant from unnecessary treatment and overmedication while also protecting the insurer’s reserves from being sucked dry.  But, as with all great things in life, their continued benefits require continued vigilance.

Categories: Medical Provider Network Tags:

On weekday desk-jocks and weekend furniture movers

July 18th, 2011 No comments

In California Workers’ Compensation law, there are a few  un-insurable area.  One of them is Labor Code § 132a – discrimination against an employee for filing a workers’ compensation claim.

Sometimes, however, the workers’ compensation claim provides the context for the employer’s action, but not the reason.

In a recent case, Sandoval v. WCAB (2011), Sixth District Court of Appeals denied applicant’s Petition for Writ of Review.

Applicant claimed to have sustained an injury to his back while working as a delivery driver and was put on modified duty riding a desk.  Someone saw him moving an object beyond his stated restrictions and the employer retained an investigator firm to gather sub-rosa videos.  The videos showed applicant moving heavy furniture on his weekends.

Naturally, the employer fired him.  The 132a claim was the result.  The Workers’ Compensation Judge found for the applicant, reasoning that the proper course of action would have been to bring the videos to the treating physician.

Just a thought: the employer can comprehend the physician-imposed work restrictions enough to assign a job within limited duties, but somehow can’t recognize when the worker is going beyond those restrictions?

The Workers’ Compensation Appeals Board granted defendant’s petition for reconsideration.  The worker was fired because the employer subjectively thought him a liar, and the evidence supports this reason as more than just a pretext.  In fact, the WCAB reasoned that “whether [defendant’s perception of applicant as a liar] was correct is immaterial for our purposes, so long as it was sincere.”

The lesson in this?  The employer is not stuck with a worker who is lying – if something, anything, seems fishy about the employee, don’t hesitate to retain a private investigator service.

Sub-rosa saved UPS (the employer) from having to accommodate someone who, from all appearances, was not the most trust-worthy, nor the least opportunistic, employee.

Categories: 132a, Defenses Tags: