WCDefenseCA

Your humble blogger may often come off as a cynic – and in all fairness, he does have a cynical streak about him.  But note this, dear readers, your humble blogger is also a hopeless romantic.  He believes that love conquers all, and the healing power of love cannot be overestimated or overlooked.  In fact, he brings proof of this very concept to your, his loyal and steadfast readers (and the Google bots who crawl this blog in search of web statistics, and just maybe, true love…)

Modupe Adunni Martin worked as a custodian for a high school in Hayward when she allegedly sustained an industrial injury to her ankle.  The pain and impairment from this injury was so great, that she required crutches and couldn’t even walk or work without pain.  In fact, the San Mateo County District Attorney’s Office callously believed that she was faking the injury, so surveillance was conducted and Ms. Martin was recorded painfully entering a doctor’s office using crutches.

The doctor’s appointment being concluded, she looked to the next item on her agenda, which was, what the San Francisco Chronicle called, a “meet up with a boyfriend for a romantic tryst in a public park.”

In preparation for this meeting, as her heart overflowed with thoughts of her boyfriend and the air carried the sweet scent of romance, she gingerly threw her crutches in her car, put on high heeled shoes, and ran to meet her gentleman caller.  Coincidentally, this was also caught on tape and is the basis for the DA’s case in prosecuting Ms. Martin for workers’ compensation fraud.

Some sources have reported that Ms. Martin also engaged in another activity in the park, one which this family-friendly blog dare not mention.  Need you any more proof of the healing power of “love”?

Ms. Martin has plead not guilty and the trial is set for October 22, 2012.

As always, WCDefenseCA wishes San Mateo County District Attorney Steve Wagstaffe good hunting and good luck in seeing justice done.

Boilerplate pleadings should be discouraged in workers’ compensation.  They might save a little time for the party filing them, but they end up wasting the time of opposing counsel and the Board.  If Labor Code section 132a is an issue in this case – go ahead and raise it.  If it isn’t, refrain.  But if you’re going to raise 132a, then run with it – don’t stamp 132a on every single application.

For example, a worker might return to his job after an injury, get promoted, get a raise, and be held up as an example to his co-workers as a model employee – one who meets misfortune head on and works hard to get past it.  Some applicant attorneys would include 132a in their application.  Why?  Because it’s easier to kitchen-sink a form rather than do a full investigation of a case at intake.

Which brings us to the case of Edwin Mendoza v. J & S Auto Hand Wash.  Applicant worked for Auto Hand Wash and sustained injury to multiple parts of his body over a six-year period ending in May of 2011.  Applicant filed a claim in August of 2011, and (wouldn’t you know it) raised the issue of 132a in his application.  The actual petition for increased benefits was not filed until January of 2012.  A Declaration of Readiness to Proceed was filed by applicant ten days later on all issues except the 132a claim.

Should the 132a claim have been set for trial on the same date as the case-in-chief?  Applicant’s position was that it should not and that discovery had not yet been completed.  But, at the time of the Mandatory Settlement Conference, applicant had almost seven months since raising the issue in his application, and had not begun to conduct discovery on the matter.  The workers’ compensation Judge set all issues for trial, reasoning that applicant has had plenty of time to conduct discovery and has chosen not to.  The clock began ticking when the issue was raised on the application, not when the petition was filed.

Unfortunately, the Workers’ Compensation Appeals Board sided with applicant’s position, granting his petition for removal.  The Board responded to applicant’s claim that he “will be severely prejudiced if a final decision is made on his claim if he has not had the opportunity to conduct discovery.”   With this sentiment, your humble blogger agrees…

If applicant had not had the opportunity to conduct discovery, setting the matter for trial would have been prejudicial.  However, applicant had ample opportunity from August 2011 to March of 2012 to depose the employer or subpoena records.

In the WCJs report and recommendation, it is noted that “[t]he Petition for Removal gives no explanation for the applicant’s not having conducted discovery on the 132a claim.”

I understand the concern of giving applicant a harsh result, but shouldn’t we be trying to move things along?  After all, the allegations forming the basis of the 132a claim were not a surprise – the issue was raised in the application.

On the bright side, an EAMS search reflects that the case has settled by compromise and release.  So perhaps there was a happy ending after all?

It is no secret to anyone that your humble blogger loves cases where lien claimants get their comeuppance.  Such was the case in the relatively recent panel decision of Kathy Capone v. First Bank & Trust.

There, the case-in-chief had resolved and the issue of a lien was set for lien conference – lien claimant blew off the hearing date and blew the deadline by which to object to the Notice of Intention to Dismiss.  The workers’ compensation Judge ordered the lien dismissed and lien claimant filed a petition for reconsideration, arguing that (1) it didn’t get a call from the defendant on the day of the status conference; (2) the failure to appear was inadvertence; and (3) it is entitled to a hearing on the merits.

Now the comeuppance:

The WCJ initially pointed out that lien claimant’s petition is nothing more than a boiler plate “Points and Authorities” in which the contentions are generally irrelevant to the facts of the case.  As it turns out, the WCJ recently reviewed an almost identical P&A from the same lien claimant.

As to the claim of inadvertence, the WCJ describes this as “cavalier” and notes that the failure to appear is a pattern and recommends the penalty of $1,000.  Furthermore, citing California Code of Regulations section 10240, the WCJ noted that lien claimant could not have appeared by telephone, but even if it could, it should have notified the defendant of its intention not to appear and provided its telephone number.  Defendant has no obligation to spend all day at the Board staring longingly at its phone, wondering why lien claimant is playing hard-to-get.

In response to lien claimant’s petition for Reconsideration, the Workers’ Compensation Appeals Board adopted and incorporated the WCJ’s report, denied the petition, and noted that the WCJ may consider the question of sanctions.

To the handful of lien claimants who read this blog – you need not fear this treatment of your humble blogger’s scathing quips if you don’t waste defendant’s time with failures to appear or showing up to lien conferences without preparation or authority.  If you have just too many cases to keep track of, then (1) hire more people; or (2) take fewer cases.  As a defense attorney, I am not responsible for subsidizing a failed business model.

WCDefenseCA gives a hearty “Huzzah” to the WCJ for an excellent report – this is how the lien abuse of the workers’ compensation system gets pared down.

Dearest readers, do you like word association games?  I do, because you can never give a wrong answer, as demonstrated here:

So let’s try it now:  Dr. Sana Ullah Khan.  Dr. Alexander Zaks.  Accident Help Line Medical Group.  Does Fraud come to mind with any (or all) of these?

State Compensation Insurance Fund, affectionately known as SCIF by those who are “in the know” (or can form names from the first letter of every word in an entity’s title) is claiming that Drs. Khan and Zaks participated in “patient mills”, submitting fraudulent claims and inflating workers’ compensation bills, even cooperating with Bruce McIntyre Roth, a SCIF in-house attorney at the time, to inflate settlement amounts.

Here’s hoping that Roth did not breach his duty of loyalty to his client/boss, SCIF.  Not that I know Mr. Roth personally, but the last thing any attorney in California wants to see is his profession smeared by a person who betrays the trust of his client – either through willful deception or through incompetence and neglect.  Rest assured, dear readers, the alleged conduct is by no means the norm, and the honor of the profession overall remains intact.

The numbers involved in this case are pretty big – we’re not talking about peanuts once the amounts claimed by SCIF include $2.4 million for translation services (which were not rendered) and additional bills for deep massages not offered by the doctors.

Have you had dealings with any of the players in this case?  If the defendants, Zaks, Khan, and Roth, actually did everything as alleged, it’s possible that they ripped off more insurers/employers than just SCIF.  After all, it has been alleged that employees were given bonuses based on the volume of procedures they assigned/prescribed/performed, regardless of the need or complaints of the patients.

So check your treating physicians and lien claimants – you might be able to knock out a few bills or at least hold off payment until this case is decided.

Lexis has a great blog post about Labor Code section 4061 and the timeline for a request for a panel.  Labor Code section 4061 subsection (b) provides an opportunity for the employee or the employer to object to a determination of a medical treatment with respect to the existence or extent of permanent impairment or limitations or the need for continuing care.  But, for whatever reason, there is no time limitation imposed upon the parties for when to object.

An applicant on the receiving end of an adverse utilization review report has 20 days, if represented, and 30 days, if unrepresented, to object.  (Labor Code section 4062)  But what about objecting to a treating physician’s determination with respect to whether an injury has been sustained at all, or the extent of the disability caused by the injury? (Labor Code sections 4060 and 4061)

The Lexis post brings to light the case of Kathryn Benson v. City of San Diego, in which a split panel ruled that applicant’s request for a panel under Labor Code section 4062.2, three years after being declared permanent and stationary with no impairment by her treating physician,  was timely and the PQME report was admissible.

Defendant argued that the request was untimely and that applicant should not be able to revisit a treating report that had so long rested undisturbed.  In reviewing the arguments, the workers’ compensation Judge relied on the case of Strawn v. Golden Eagle Insurance Co., a 2000 panel decision.  In that case, the panel held that a 4-month wait to obtain a Qualified Medical Evaluator was unreasonable.  Although there is no express time limitation, an objection must be made within a reasonable amount of time.

The split panel in the Benson decision rejected the WCJ’s reasoning, relying instead on the facts of this case Benson case.  Of particular note was the fact that applicant wanted to return to full duty and was following the treatment regimen of the treating physician.

However, the panel does note that “[o]ur conclusion in this case does not mean that there are no circumstances under which a QME report should not be allowed into evidence because of unreasonable delay in objecting to a treating physician’s opinion.”

It can be so difficult to watch the clock waiting for applicant’s right to request a panel evaporate slowly… slowly… and never knowing when that poisoned well is really dry.

So what can a defense attorney do to keep a panel request from coming out of the wood work?  Well, here are some factors to consider:

• Have 20 or 30 days passed since the treatment report issued?  Although there is no firm restriction of 20 or 30 days (depending on applicant’s representation) for 4060 or 4061, the 20/30 time limit certainly provides grounds for what the legislature considered “reasonable.”
• What is the reason for the delay?  Was the applicant being strung along, as the WCAB found in this case, or is this simply a case of workers’ compensation laches.
• Is the applicant a repeat player?  Is it reasonable for a person who has had workers’ compensation claims in the past, claims that have run the gauntlet of the workers’ compensation system.  An applicant that has been represented in the past has no reason to claim that he or she didn’t know the benefits of hiring an attorney.  And, once the applicant is represented, there should be no excuse for a failure to timely object and request a panel.
• Has the defendant sustained some sort of prejudice because of the delay?

Do you have a story where you’ve tried this argument one way or the other?  Was the result unreasonable? Unreasonably unreasonable?  Or perhaps reasonably unreasonable (it is comp, after all!)

I have another story for you, my dear readers, from Texas.  Now, before you close your laptops, turn away from your screens, or shake your fist at the sky while cursing the name of your humble blogger in the language of your forefathers, I ask that you consider the story from the Lone Star State to compare and contrast, as we all did in grade school, with our quiet world of California workers’ compensation.

Comp is an interesting balance for attorneys in terms of where loyalties lie.  After all, some attorneys represent self-insured employers, and in those cases do not encounter any sort of gap between the employer and the workers’ compensation insurer.  Other lawyers represent workers’ compensation insurers, and not necessarily the employer.

A recent opinion handed down by the Texas Supreme Court holds that there is no attorney-client privilege between the workers’ compensation defense attorney and the insured employer.  In that case, the Supreme Court of Texas (or Scot) held that when an attorney sends regular updates to the employer, third-party administrator, and insurance company as to the proceedings in a case, the communications to the employer are not privileged.  Your humble blogger reached out to a nearby Texan for his reaction:

  Perhaps he was an applicant’s attorney?

So imagine that: your humble blogger sits comfortably in his office in Texas (I did say “imagine,” I haven’t closed shop and moved out on all y’all just yet), with cowboy boots on his desk and an (awesome) cowboy hat on his workers’-compensation-focused-head.

As he dreams of what life must be like in San Francisco, his insurance company client comes in and the two discuss everything under the sun about a particular case.  Then, not fifteen minutes after the insurer client leaves, the employer from the same case, still holding the insurance policy in its hand, comes in to discuss the injury, the nature of the return-to-work program, etc.  The conversation with the insurer is privileged and the conversation with the employer is not.

Furthermore, the very impressions, thoughts, strategies, etc. when put on paper and sent to both the insurer and employer would be discoverable.  And your humble attorney, after politely commenting to applicant’s counsel that he likes his “lawyer jeans” and then tells his client that jeans aren’t really appropriate for the Board (you know who you are!) will have more explaining to do.

California’s take on this question is… well… different.  For example, in the Court of Appeal case of Gregory Martin v. Workers’ Compensation Appeals Board (1997) the Court of Appeal held that when an employee speaks to the workers’ compensation defense attorney as a representative for the corporation/business, then the communication may be privileged.  However, when an employer simply instructs an employee to provide a witness statement, the communication is not.

So, at least in theory, when the attorney speaks or writes to the employer as opposed to a particular officer employed by the employer, the communication should be privileged.

Are you unhappy with the workers’ compensation Judge assigned to your case?  Want to try to get a different one?  What argument could you try that has never been tried before?  What maneuver worthy of a John Grisham novel or an episode of Law and Order: Workers’ Comp. (some day, dear readers, some day) could be used to change the tide and swing the case back in your favor?

Why not cite Labor Code section 123.5 and get rid of any workers’ compensation Judge that seems to be inclined against your case?  Wait, you mean you’re not familiar with section 123.5?  But it’s the keystone to workers’ compensation!

In the case of Olga Garau v. State of California, Department of Industrial Relations, applicant argued that her case could not be assigned to a WCJ because section 123.5 requires all WCJs to be active members of the California bar.  (It doesn’t; candidates for judgeship have to be members of the bar and must maintain membership with the State Bar during their tenure but there is no requirement that WCJs moonlight as attorneys to keep their robes.)

The Workers’ Compensation Appeals Board rejected applicant’s argument, as even inactive members are still members of the Bar.  The Court of Appeal wasn’t impressed with this “rabbit” out of applicant’s legal hat either, denying applicant’s petition for a writ of review.

So relax, dear readers, the crazy world of workers’ compensation, for lawyers, attorneys, lien claimants, and employers, remains just as crazy as before but no crazier.

Now dear readers, remember, your humble blogger is an attorney who loves crackpot ideas and tactics.  Crazy strategies are not far from this lawyer’s mind and new tactics are the reason he opens his heart and his brief case (yes, people still have brief cases) and goes to work hacking at monotony. 

But really?  Disqualifying a WCJ this way? Are there any WCJs that are “active members” of the bar in the sense that they maintain a legal practice?  Even if applicant’s theory had worked, when she finally got to a WCJ she could be happy with, wouldn’t the defense attorney use the same tactic and keep her case from ever being concluded?

We have all read the Court of Appeal opinion in the Valdez case.  Applicants can treat where they like and choose a quasi-QME to write admissible reports.  No doubt, applicants’ attorneys will guide their clients towards a balanced and honest physician with the sole aim of making applicant healthy enough to return to work, and not to inflate applicant’s impairment rating.

So, the defense is stuck with the consolation prize of not having to pay for treatment, even though it will be showered with report after report saying that the paper cut sustained at home is industrial and has caused 100% disability.

Enter the Fernando Sarmiento case.  Mr. Sarmiento filed two claims against Payroll Management Group/Blue Chip Recycling.  Applicant treated outside of the defense’s medical provider network, and defendant’s efforts to compel treatment within the MPN were met with stiff judicial resistance.

Taking its case to the Workers’ Compensation Appeals Board, the defense rightly argued that the Valdez en banc case entitled the defense to at least some protection through its MPN.  Mind you, dear readers, that this panel decision pre-dates the Court of Appeal decision by about two weeks.

But the WCAB was of little help to the defense, denying the petition for reconsideration, it treated defendant’s petition as one for removal and denied it as well.  Apparently, the defense had not (yet) proven that it had a properly established and noticed MPN.

But, the WCAB did provide a method by which the defense could prove the validity of its MPN and reap the limited benefits of the MPN and what the Court of Appeal left standing from Valdez.

Reasoning that “a defendant, as a party, is entitled to file a declaration of readiness to proceed to an expedited hearing to determine the employee’s entitlement to medical treatment,” the WCAB held that the defendant must file a declaration of readiness to proceed to expedited hearing, and prove that it has a properly established and noticed MPN.  (See: Breanna Clifton v. Sears Holding Corporation).

Lock and load, dear readers, there is yet another step in the workers’ compensation dance.

Welcome back from your Independence Day Holiday!  For some of us, it was a day of continued labor and work, honoring the tireless efforts of the founders of the nation.  For others, it was a day filled with middle-of-the-week revelry, lighting BBQs (hopefully you’re using charcoal!), grilling burgers, and celebrating the country’s independence by blowing up a small piece of it with fireworks.

However you spent your 4^th, your 5^th awaits you eagerly with work to do and a blog post to read!

Insurance Commissioner Dave Jones recently announced the grant of $600,000 to the Monterey County District Attorney’s Office to fight workers’ compensation fraud.  The DA’s office is no doubt happy to have the extra funds.  As your average level-one deputy DA makes between $56-$77,000 per year, this money could be spent to keep a few deputy DAs and investigators focusing on nothing but insurance fraud investigations and prosecutions for over a year.

However, and I believe I’ve made this point before, the press release should have read more along the lines that California’s employers have provided funds for the Monterey County District Attorney’s office.  Insurance Commissioner Dave Jones, despite his diligence in discharging the duties of his office, did not write a personal check to Dean D. Flippo, Esq. and say “good hunting!”  He collected money from California’s employers and insurers (on top of their tax payments shared by all Californians) to fund this grant.

California’s employers and insurers are right in feeling under-appreciated.  Their needs go unnoticed in Sacramento, and their efforts go unrewarded in the press.  Unless we want to send a message that the last business in California should turn off the lights on its way out, a bit more respect and appreciation should be shown to the steam behind the California machine.  We could start by acknowledging, once in a while, where the government gets these golden eggs it is so happy to hand out.

Well, your humble blogger wishes Mr. Flippo’s office the best of luck in bringing workers’ compensation fraudsters to justice.  He only hopes that Commissioner Jones will give credit to where it is due in the future!

Dearest readers, a very happy Independence Day to you all!

In honor of this holiday, I relate to you the story of Samuel Whittemore.

At the age of 80, he left his farm and family to fight in the revolutionary war, valiantly defying the red coats and their mercenaries.  At one point, he was “shot, bayoneted, beaten and left for dead, but recovered and lived to be 98 years of age.”

I only know of one person who is a modern-day Samuel Whittemore, and he is a workers’ compensation defense attorney.

So light the fires, grill the hot dogs, and watch the fireworks!

Happy 4th of July!