Archive for August, 2011

On Spinal Surgery Requests

August 31st, 2011 2 comments

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.

Categories: Medical Treatment Tags:

Medical Records of 300k Californians Posted Online

August 30th, 2011 No comments

The San Francisco Chronicle has an interesting article on the state of medical records in California.  Apparently, “medical files belonging to nearly 300,000 Californians sat unsecured on the Internet for the entire world to see.”

It appears that a consulting firm working to collect unpaid workers’ compensation bills for doctors and hospitals, mercifully to remain nameless, put the files online.  The firm mistakenly believed that only its own employees could see the files.

I’m a big fan of modern technology in general and the paper-less world especially.  That being said, even though fire was a wonderful invention, it came with its own dangers and to this day it must be handled with care.

Defendants and defense attorneys can benefit greatly from paperless environments – no more coffee-stained original documents; access for the entire office at the same time to any file; service of all medical records by CD or e-mail.

At the same time, records get accidentally attached and sent; e-mails are dispatched that should have been filtered (read: censored) by cooler heads; and, as here, the medical records of unsuspecting individuals are made available for the world to see.

Given the facts of this story, the defendants in the victims’ respective workers’ compensation cases are blameless (and probably safe from liability).  However, such a slip-up could have easily happened to a private investigator firm hired by a third-party administrator or a careless Agreed Medical Evaluator’s office.

In other words, the modern professional need not fear technology or the paperless environment any more than he or she fears a camp fire; but the same attention and care that goes into keeping a camp fire safe and contained should go into keeping that precious information neatly under a tight lid.

As your caveman author chisels this blog post into a stone tablet, he wishes you the safe and successful use of modern technology to increase your efficiency and reduce your costs, hopefully without the price of a privacy and security breach.

Categories: Liens, News Tags:

On The Inclusion of Medicare C&R Language

August 29th, 2011 2 comments

Centers for Medicare and Medicaid Services’ (CMS) regulations regarding Medicare Set-Asides have had a devastating effect upon California Workers’ Compensation practice.  Even when the parties want to settle a claim for a legitimate, good-faith amount, the nature of CMS’ approval system makes this nearly impossible.

Presently, CMS will not review set-asides for settlement amounts under $25,000, citing a shortage of man-power.  This means that the parties can settle a claim by compromise and release for under $25,000, only to have CMS later recoup costs from the self-insured employer or the insurer.  Naturally, this proves a strain to settlement negotiations.

Some parties have been adding language as an addendum, shifting the responsibility of all future medical costs to the applicant as part of the Compromise and Release.  A vendor is usually hired (Gould and Lamb is one example, Carr Allison is another) to perform a Medicare Set-Aside Analysis report, providing an estimate of how much future medical treatment will cost.  This figure is ear-marked for that purpose.

In one recent case before the Workers’ Compensation Appeals Board, Isaac v. Paramount Pictures, the validity of this addendum language was tested.  The Workers’ Compensation Judge rejected the addendum language, yet still held the rest of the compromise and release binding upon the parties.

Defendant filed a petition to set aside the order approving the compromise and release.

The skinny:  an addendum to a compromise and release agreement addressing the interests of Medicare may not be rejected by a WCJ without rejecting the entire agreement.

The WCAB ordered the approval of the compromise and release with the CMS addendum included.  The extent to which the addendum language will be binding on CMS down the road is questioned by the WCJ, WCAB, and most likely the parties as well.

But, if nothing else, the efforts on the part of the defense in this case firmly establish that the interests of the Federal Government have been fairly considered, and efforts have been made not to shift any of the burden of applicant’s treatment to Medicare.

If the applicant is on Medicare or is soon to be on Medicare, it’s probably a good idea to include some language in a compromise and release agreement addressing future medical costs.

Categories: Medical Treatment, Medicare Tags:

Liability to Contractor’s Employees

August 26th, 2011 No comments

The California Supreme Court recently issued an opinion addressing the extent of liability parties have to the employees of hired contractors.

Jack hires Jill Inc. to have his lawns mowed.  When Jill’s employee hurts himself on Jack’s lawn, is Jack liable?  What if Jack had violated Occupational Safety and Health Administration (OSHA) guidelines on how razor-sharp he can keep his blades of grass?  What if Jack’s own employee, Albert, hurt himself in the same way as Jill’s employee and received workers’ compensation benefits?

The skinny:  a party owes no duty to the employees of its contractors.  Even if two workers get hurt in the same event, the big boss is on the hook only for his own worker, not the employee of the contractor.

US Airways hired a contractor to maintain and operate a conveyor at San Francisco International Airport.  One of the contractor’s employees injured his arm inspecting the conveyor.  As it turns out, the conveyor “lacked certain safety guards required by applicable regulations.”  Fortunately, it wasn’t a back sprain while gently removing luggage from the conveyor.

The Court of Appeals held that the violation of an OSHA safety regulation imposes liability upon US Airways.  According to the Court of Appeals, observing OSHA safety regulations is a non-delegable duty.

The Supreme Court reversed, relying on its opinion in Privette v. Superior Court.  The Court re-affirmed the rule that a hirer owes no duty to the employees of the contractor.

Will this apply to the Workers’ Comp world?  Time will tell how Workers’ Compensation Judges respond to this ruling.  But I have a feeling that the world of Serious and Willful defense will never be the same.

Categories: Defenses Tags:

AB 947 Progresses Further

August 25th, 2011 2 comments

SB-899 and the reforms of 2004 were a triumph for the State of California.  By no means did these reforms fix all the problems in California Workers’ Compensation, but at least some efforts were made to make California semi-profitable (read: survivable) for employers.

One of the regular targets for the chipping-away efforts of applicants, their attorneys, and their treating physicians, is Labor Code § 4656.  § 4656 limits applicants to 104 weeks of temporary disability within a 5 year period.

Temporary disability is meant to provide some semblance of income, 2/3rd of the injured workers’ average yearly wages, while the worker is recovering – treatment, improvement, etc.

That means that someone is paying the employee 2/3rd of his or her income and receiving no labor or benefits in return.

Assembly Bill 947, being pushed by Assemblyman Jose Solorio, would increase the cap on temporary disability to 240 weeks.  You can read the amended text here.  That means the self-insured employer or insurance company would be paying the worker three years worth of salary over the course of five years without seeing any productive labor in return.

Today, the Senate Appropriations Committee will have a hearing on the bill.  Having already worked its way through the Assembly your humble author can only hope that this bills finds a sudden and tragic demise somewhere in the Senate.

Categories: Legislation, News Tags:

Are §§ 4663 and 4664 Mutually Exclusive?

August 24th, 2011 No comments

Is it possible that the California Legislature, in enacting Labor Code §§ 4663 and 4664, intended for them to be mutually exclusive?  I don’t think so.  In fact, not only did the thought never cross my mind that the two couldn’t be applied in the same case, I never thought the Legislature would limit a defendant’s options to a choice between the two when the two could both easily exist in one case.

Then, I read Robinson v. Workers’ Compensation Appeals Board, a writ denied case.

The skinny:  §§ 4663 and 4664 can both be applied in the same case.

[Just a note – before you begin raining abuse upon your humble author for wasting your time with the obvious, with all due contrition I point out that common sense has consistently proven a weak source of authority in California Workers’ Compensation practice; and even a Writ Denied case from the Court of Appeal places an iron fist within the velvet glove of basic reading comprehension.]

In Robinson, the Workers’ Compensation Judge applied § 4663, apportioning some of applicant’s impairment to non-industrial causation, and also applied § 4664, apportioning some of applicant’s impairment to his prior award from 2004.

Applicant petitioned the Workers’ Compensation Appeals Board for reconsideration, arguing that the legislature did not intend for §§ 4663 and 4664 to be applied to the same case.  The WCAB’s answer?  “[w]e see nothing in the language of the statutes or in their legislative purpose to support such a conclusion.”

The WCAB continued, citing Brodie v. WCAB to hold that impairment must be parceled out into (1) non-industrial causation (§ 4663); (2) prior industrial causation (§ 4664); and (3) current industrial causation.

[Even part (3), current industrial causation, should be parceled out into the various injuries (specific vs. cumulative trauma, multiple specific injuries, or multiple cumulative traumas).  This issue is discussed in a prior post.]

Applicant’s petition for a writ of review was denied by the Court of Appeals.

Categories: Apportionment Tags:

Workers’ Compensation Daze

August 23rd, 2011 No comments

Having Workers’ Compensation Insurance, or self-insuring, is required by the State of California.  An employer typically can’t avoid this requirement, not even a marijuana dispensary.

After law enforcement officers raided NBD Collective in Newark, the owners were slapped with several charges, including conspiracy to possess marijuana for sale, conspiracy to sell marijuana, selling marijuana, and (you guessed it!) failure to obtain workers’ compensation insurance.

In the words of my dear friend Kermit, “it’s not easy bein’ green.”

Perhaps California Workers’ Compensation can be used in the same way that Eliot Ness used tax violations to catch Al Capone – a foot in the door to prevent other criminal activity.

In any case, the NBD Collective had an unfair pricing advantage over honest, law-abiding marijuana peddlers (ha ha) in not getting workers’ compensation insurance.  And in this case, Workers’ Compensation worked to assist in the enforcement of other laws.

So remember, even criminals can get hurt on the job, and when they do, it pays to be insured.

Categories: News Tags:

When “Employment” Begins

August 22nd, 2011 No comments

A recent writ denied case addressed the details of one of the defenses to psyche claims.  Labor Code § 3208.3 provides that psyche claims can not proceed if the employee has been employed less than (not necessarily continuous) six months.  The exception to this is a sudden and extraordinary event.  An earlier blog post covers this exception.

The skinny:  Employment starts with the first day of actual service – not the technical hire date, preparation dates, or anything else.  If Employee is “hired” and begins work the next week, the next week is the first day of employment for purposes of § 3208.3.

In the case of Hamilton v. WCAB, applicant Jill Hamilton was hired on September 14, 2008 to work as a home mortgage assistant, and began work on September 15, 2008, all after filing an online application for the job on August 6, 2008.  Applicant’s last day of work (and earning wages) was on March 12, 2009, and she was taken off the company books on January 25, 2010.

08/06/08– Applies for the job

09/14/08– Official hire date

09/15/08– First day of work

03/12/09– Last day of actual work/earning wages

01/25/10– Removed from company books

As in all things, timing is everything – had applicant started work just a few days earlier, her psyche claim would have survived § 3208.3.

Knowing this, applicant argued that in early September of 2008, she went, at her own expense, to an office in Ventura to pick up a laptop for her training program.  Although she was not compensated for her time, she claimed that this was her first work-related act, so her “employment” commenced sometime (any time that it might please the court) before September 12, 2008.

The Workers’ Compensation Judge found that applicant began working more than six months before March 12, 2008, and therefore was entitled to proceed on her psyche claim.

The Workers’ Compensation Appeals Board granted defendant’s petition for reconsideration, taking a position contrary to the WCJ’s.  Relying on previous case law, the WCAB found that employment begins with actual work, and does not include time off for disability.  Rather, what counts is the “days of actual service” and not those “days of employment where there was no actual performance of services.”

On appeal, applicant’s Petition for Writ of Review was denied.

Before you follow this next tidbit, bear in mind that this is a crazy idea and using it might incur ridicule, discipline, penalties, or even sanctions!  Of course, if you pull this one off, your name will live forever in endless glory.  When signing autographs, don’t forget to tell the fawning fans where you first got the idea for this maneuver.  That being said, let’s walk down “what if” road.

What if we took the language of this opinion one step further.  Averaging six months to 180 days, can we say that vacations, holidays, and weekends don’t count?  Can we argue that applicant is barred against a psyche claim until he or she has worked an actual 180 days (not counting weekends, holidays, etc.?)

After all, if the job is causing a psyche claim, shouldn’t not being on the job slow the progress of the injury?

It’s unlikely to work, but could provide an interesting chance to test the limits of § 3208.3.

Categories: 3208.3, Defenses, Tactics and Strategy Tags:

Are extra-PBN liens now valid? Maybe…

August 19th, 2011 No comments

In an earlier post, I mentioned the Valdez v. Warehouse Demo Services (en banc) case, in which the Workers’ Compensation Appeals Board first ruled that defendants are not responsible for treatment bills originating outside of a validly established Medical Provider Network, before deciding to take more time to consider the issue.

While we are in limbo, waiting to see who foots the bill for extra-MPN charges, a thought comes to mind about the companion arena to the MPN: what about the Pharmacy Benefit Networks established pursuant to Labor Code § 4600.2?

In the case of Brambila v. Vons, Inc. (2010), the WCAB denied a lien-claimants petition for reconsideration of the Workers’ Compensation Judge’s ruling that liens asserted by extra-PBN suppliers of drugs are not valid or enforceable.  The WCAB denied reconsideration, relying on § 4600.2.

(As an aside, I have had lien-claimant argue that because the injured worker didn’t understand the PBN network notices, the PBN does not apply to the worker and he or she can obtain drugs wherever he or she wants.  But even if the worker doesn’t understand the plain meaning of the notice, the pharmacist does, and the meaning of the objection letters that followed the first filled prescription as well.)

Since the WCAB now needs more time to consider whether or not insurance companies and self-insured employers are liable for extra-MPN treatment, is it possible that the same reasoning applies to extra-PBN dosages.  The Valdez case is newer and en banc, giving it controlling power over Brambila.

Until the Valdez decision comes out, Brambila is still good law.  If lien-claimants demand payment of extra-PBN liens, settle for token amounts or rush to trial before the WCAB changes its mind in Valdez!

Sanctions for a Bad UR Report? Not in My CA!

August 18th, 2011 No comments

Utilization Review, as previously discussed here and here, is an effective tool in filtering out unnecessary treatment.  However, Labor Code § 4610 has its own requirements to make Utilization Review reports valid, including deadlines and qualifications for reviewing physicians.

If a denial of medical treatment is based on UR, and the UR report does not comply with § 4610, can the denial give rise to sanctions?

Labor Code § 5813 provides that sanctions may be imposed “as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.”

Recently, an applicant took this issue up on appeal, finding no sympathy from the Workers’ Compensation Judge, the Workers’ Compensation Appeals Board or, ultimately, the Court of Appeal (Dominguez v. Workers’ Compensation Appeals Board).

There, the applicant claimed that defendant’s denial of dermatologic treatments based on a UR report was sanctionable conduct because the UR report was not timely and was prepared by an anesthesiologist, rather than a dermatologist or an orthopedist (the underlying industrial injury was an orthopedic one).

The WCJ and the WCAB both found that applicant’s contentions regarding the validity of the UR report were without merit.  But, even if applicant was correct on both counts, the denial does not rise to the level of § 5813 sanctions.  The applicant kept saying sanctions, and the courts responded with…

In other words, go with your gut, and stick to the UR report – at the most, you’ll end up paying the treatment, but no sanctions should be forthcoming.

Categories: Medical Treatment, Sanctions Tags: