WCDefenseCA

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

Defense attorney:  No you didn’t!

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

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

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

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

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

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

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

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

This week, the California Labor Commissioner announced the launch of the Criminal Investigation Unit which will “investigate employers who perpetrate wage theft and other criminal activities against workers.”

Detecting lawbreakers and bringing them to justice is a worthy pursuit, of course, but aren’t there already law enforcement agencies who perform this very work?  And isn’t the nature of this sort of crime easily reported by workers?

These resources should instead be used to detect and prosecute frauds who fake injuries or impairments, and the “medical” facilities enabling them, billing for procedures never performed and over-billing for those actually done.

At present, it seems that employers must bear all the costs of investigating fraud, not only detecting it but also gather sufficient evidence to prove the fraud beyond a reasonable doubt, before local law enforcement will take over.

Certainly, this new unit will accomplish some good, but so long as its focus is the hunt of employers for real or imagined infractions, it will also serve as a vehicle for disgruntled employees to harass their employers with false reports and expensive litigation.  Hopefully, the maiden voyage of this unit will not signal a chill in the water for California’s employers.