WCDefenseCA

Sit back, dear reader, and listen to the story of the case of Sandra Malvesti v. Round Valley Unified School District.  The issues of the case in chief aren’t nearly as important as what followed, when applicant’s counsel hungrily pursued the attorney’s fee.

The case had previously settled by way of stipulation, with future medical treatment included, but when applicant claimed a (quelle surprise!) new and further disability, the case eventually resolved by way of compromise and release.  Applicant’s lawyer requested a fee of 12% of the new settlement amount ($14,202.00).

Stick with me folks, here’s where it gets interesting.

The workers’ compensation Judge initially refused to approve the compromise and release, reducing applicant’s attorney’s fee because the future medical treatment was already acquired with the prior stipulations, for which applicant’s counsel already received a fee.  The WCJ was also concerned with some of the terms of the method of payment, including an annuity company.

The applicant’s attorney then produced a letter signed by applicant, begging the WCJ to approve the settlement so that applicant would not lose her house – she really needed the money!  In the letter, applicant made clear that she had no objection to the attorney fee, and just wanted the matter settled and paid.

The WCJ approved the settlement with the reduced fee, and applicant’s counsel promptly petitioned the Workers’ Compensation Appeals Board for reconsideration.  In reviewing the case, and please keep the above video in mind, the WCAB noted a letter from applicant (and not applicant’s attorney) which “accuses [applicant’s attorney] of engaging in what may be unprofessional conduct to obtain her consent to his fee request.  In substance, applicant is alleging that [her attorney] used both his claimed financial situation and that of applicant to coerce her to consent to his fee request as a condition of getting timely action on the [C&R].”

And what is the reference to applicant’s counsel’s own financial situation?  The applicant wrote that her attorney “personally asked me to sign an additional letter during this phone call stating he had not paid his house payment for 5 months, could not pay his staff and could not afford groceries for his family, … I was afraid if I did not sign the letter I would once again be put on the ‘back burner’ and my case would still be ongoing.”  (Pack your bags, boys!  We’re going on a guilt trip!)

The WCAB ordered the matter returned to the WCJ to determine if the applicant’s story holds water.  If it does, then questions of the ethical practice of law need to be explored.  If, however, it doesn’t, then applicant’s attorney is to receive the full fee, including a portion of the Medicare Set Aside, as held in the case of Robert Viale v. Lockheed Martin Corporation.  (It looks like applicants’ attorneys can expect a slice of the MSA pie as well).

As always, WCDefenseCA has declined to name names, but if your humble blogger was in this attorney’s shoes, he would drop this issue immediately and forfeit the seven thousand.  Every lawyer wants to be known by all, but not for this, one way or another.

The times, they are a-changing.  It looks like reform might be coming down the pipe pretty soon, and, courtesy of the Business Journal, your humble blogger has gotten his hot little hands on a summary of proposals.

Reviewing this summary of the proposed changes to the law, one must wonder about what fate awaits us in California.  For example, one of the proposed changes is the Independent Medical Review system, which would apparently resolve Utilization Review disputes while also narrowing the Workers’ Compensation Appeals Board’s jurisdiction over medical treatment disputes.

Other proposals include the Independent Bill Review process, which appears to be aimed at cutting down on the insane flood of liens that are strangling the workers’ compensation system; eliminate the spinal surgery second opinion process and refer the matter, instead, to the IMR; provide a minimum filing fee for liens, recoverable should the lien claimant prevail, and other excellent ideas.  An amendment to the California Constitution making this blog required reading is strangely absent from the list… lobbying dollars wasted once again!

Another one of the interesting ideas present is found in bullet point 16 of the summary – “Streamline the Agreed Medical Evaluator (AME) and QME process to eliminate unnecessary delays and friction in the system.”  Almost every contested case has a hearing on the QME specialty.  Applicants want chiropractors and pain specialists, defendants want orthopedists.  The rule clearly states that the treating physician specialty should control the specialty of the QME.

One can only hope that part of these reforms will be to give teeth to Rule 31.1(b) so that these needless hearings can be avoided.

Your humble blogger intends to keep his keen eyes on this one, because there is a good chance that several of our gripes and complaints may end up being resolved should these reforms go through.  After all, what better sign could we have as to the practicality and good qualities of these  reforms than the opposition of the California Applicants’ Attorneys’ Association?

And your humble blogger also hopes his beloved and much-appreciated readers will keep their keen eyes glued to this blog for the weeks to come for more thoughts of these (potential) reforms.

The Court of Appeal recently denied applicant’s petition for a writ of review in the case of Sharon Dunnigan v. City of Inglewood.  Applicant has engaged in a long and drawn-out quest for free home health care services, including cleaning services, following her injuries which resolved by way of stipulation to the tune of 50% future medical treatment.

The workers’ compensation Judge initially awarded applicant home care services as a form of reasonable medical treatment, but the defendant sought reconsideration by the Workers’ Compensation Appeals Board.

The WCAB, in a November 21, 2011 decision, found that defendant had a valid point – applicant failed to prove that home health care services were reasonably necessary.  At his deposition, the Agreed Medical Evaluator responded to questions about applicant’s need for home health care services by requesting additional information about what needs to be cleaned and how often it is cleaned.  The key line from the WCAB opinion?

“Although, when read in isolation, portions of [the AME’s] testimony appear to support a need for certain undefined housecleaning services, [the AME] admits over and over in his deposition that he has insufficient information to render a valid opinion.”

Because the good doctor never expressly stated that any specific housecleaning services were reasonably required to relieve the applicant from the effects of the injury, applicant failed to carry her burden of proving entitlement to a butler and maid.  And now, it appears, the Court of Appeal is of little help to her either.

Now, before you start calling your humble blogger cruel and heartless, I tell you that I take no pleasure from the suggestion that the poor applicant will now have to live in a dirty house covered in dust and cobwebs, with garbage piling up around her.  That being said, my lawyer’s mind sees this situation as one of two possible fact-patterns:  either applicant can clean the house herself and is just lazy, or applicant really can’t clean her home because of her impairment and needs the help.

If she’s just being lazy, I have no sympathy for her, and neither should you – she’s just milking the system and trying to shake down the defendant for unwarranted money.

If she’s not just being lazy, and her impairment prevents her from cleaning her own home, then why didn’t she pay attention to the AME when he was testifying at deposition?  The good doctor is clearly saying that he needs more information before he can provide an opinion – so why not give it to him?  Schedule a re-evaluation (defendant is paying for it anyway) or provide a letter describing the house and the cleaning activities it requires.

The fact that applicant did not follow up with the AME restrains my typically bleeding heart from gushing forth over and equally keeps my sharp attorney’s eyes from crying my dear readers a river over her plight.

Check the tags on your clothes.  Depending on where they were made, you might very well be wearing the bitter fruit of a law-breaking business, one which was investigated by both federal and state labor offices for, among other sins, failing to obtain a workers’ compensation policy for its employees.

10 garment factories in Southern California have been investigated, revealing some 11,000 workers pulling 10-12 hour shifts making garments without workers’ compensation coverage.  Can you imagine the cumulative trauma, psyche injury, and laundry-list of claims that could be generated by 11,000 workers spending exactly half of each day hunched over a table working?

There are many employers that do not get workers’ compensation insurance for their employees.  Sometimes, these are small operations or family businesses that don’t know about the law, or are under the mistaken impression that their employee is actually a contractor.

Although you have cases such as this one where the employer knowingly doesn’t get insurance.  This provides an unfair competitive advantage when it comes to lower prices, and drives the law-abiding businesses into the red.

From time to time, dear readers, your humble blogger has been asked why he does not comment on unpublished decisions.  As you know dear, readers, unpublished decisions are un-cite-able (although your humble blogger has a crackpot idea on how to get around that one and is waiting for an opportunity to try it).  This fine workers’ compensation defense lawyer asks you to take Hart, as you read the following employer-unfriendly post.

In the case of Hart v. Workers’ Compensation Appeals Board and Chief Auto Parts Auto Zone, applicant had a string of defeats until the case came before the Court of Appeal.   Applicant claimed he sustained an injury in 1999, and the matter was initially resolved, only to be reopened in 2004 for additional impairment both in the form of pain and to applicant’s functionality.

The parties stipulated to temporary disability for a time, primarily based on applicant’s injury to his shoulders (this was one of those cases where one shoulder was injured, leading to over-use and subsequent injury to the other).  The parties convened for a trial in 2009, at which time the workers’ compensation Judge issued a ruling on the raised issue of right to medical treatment for the shoulders.

However, when applicant sought additional temporary disability benefits because of impairment due to the cervical spine and neck, the defense cried havoc and let slip the dogs of war.  The cut-off date to claim new and further disability had been 5 years since the date of injury (1999) and had never raised the cervical spine or neck as a claimed body part until the 2011 trial on the issue.  If your humble blogger knew how to math (yes, math is a verb in this case), he could tell you exactly how many years has gone by since the date of injury.  However, using his fingers, he can estimate that at least five years had passed since the 1999 injury by the time the cervical spine was being claimed in 2011.

So when the issue came before the WCJ, the ruling went in favor of the defense and barred this late addition of a new body part.  The WCAB adopted the WCJ’s reasoning.  Unfortunately, the Court of Appeal did not agree.  The Court held that because the 2009 trial did not address the issue of applicant’s cervical spine claims, the matter was not properly heard before a decision on cervical spine-based TTD was made.

Additionally, the Court reasoned that temporary disability is a benefit made available in place of lost wages until the applicant’s condition is stabilized.  If applicant’s original injury is still causing applicant to not be permanent and stationary, even if it is in a new body part, then the applicant is still entitled to TTD.

On the bright side, however, the Court ultimately held that it “expresses no opinion as to what the ultimate ruling should be” with respect to applicant’s entitlement to temporary disability, so the defense will still have a chance to escape liability for more TTD.

It hasn’t been a good week for lien-claimant Alan Moelleken, M.D., on this humble blog of all things workers’ compensation.  In the case of Ricardo Zuniga v. Barrett Business Services, Inc., Dr. Moelleken had just recovered the cost of medical treatment through an award given by the workers’ compensation Judge on the case when the defendant petition the Workers’ Compensation Appeals Board and won a reversal.

Dr. Moelleken filed a lien for almost $9,000, after defendant had paid only $666.80 of the bills on the grounds that there was a valid Medical Provider Network in place and Dr. Moelleken was not in it.

The workers’ compensation Judge had reasoned, to Dr. Moelleken’s unending delight, that, although the defense had entered into evidence copies of letters sent to applicant (notifying him of the MPN) and to lien claimant (objecting to any treatment and putting it on notice that its bills would not be paid), there was no evidence that the letters were received.  Furthermore, the defense failed to put into evidence a value for the services provided other than zero.

The WCAB took a different approach.  With respect to the defendant’s burden of proof in showing that letters were received, the WCAB held that the “letter from defendant to applicant … is prima facie evidence of delivery of required notice to applicant of his rights under the MPN.”

But, the issue of the MPN defense aside, the WCAB went further to note that the lien claimant failed to carry its burden.  The burden of proving all elements of a lien fall on the lien claimant, including that the medical treatment provided was reasonably required to cure or relieve the injured worker from the effects of an industrial injury and that the claimed fee is reasonable.

Perhaps this goes to show that the one remaining tooth after the sad reversal in the Valdez case remains firm and sharp – even if an applicant ventures outside of an MPN, the defense does not have to pay the bills for it.

An exciting development in the ongoing insanity that allows non-California athletes, and by extension, all visiting employees, to file workers’ compensation claims in California.  In the case of Bruce Matthews v. National Football League Management Council, the 9th Circuit Court of Appeals ruled that applicant Bruce Matthews does not have the right to file a workers’ compensation claim in California, despite the fact that he did play 13 games in the Golden State.

Matthews had tried to exploit a loophole in California’s workers’ compensation system to pursue his claim in California, despite never playing for a California team in his over-twenty-year career.  His team and the NFL Management Council sought to enforce an arbitration agreement to require Matthews to bring his claim in Tennessee.

The 9th Circuit Court of Appeal was not impressed.

The reason?  “In his application for workers’ compensation benefits, Matthews asserted that he suffered cumulative injuries incurred at “various” locations between 1983 and 2001. He did not allege any specific injury in California … Indeed, Matthews did not even allege that he played football in California, although we take judicial notice of the fact that Matthews’ teams played 13 games in California during Matthews’ 19-year career.”

So what’s the 9th Circuit looking for?  Well, it looks like an applicant needs to show signs of a discrete injury, the use of California’s medical treatment system, and perhaps the use of California’s legal system in pursuing the case.  But perhaps this means that the 9th Circuit does not recognize the legal fiction of the cumulative trauma?  After all, several states only recognized “discreet injuries.”

But, most important of all, the 9th Circuit reasoned that the claim would be barred in California…  Obviously wcdefenseca is still not considered a learned treatise.

What is the extent to which a lien claimant can litigate the causation of an industrial injury?  In the case of Travis Brock v. Ron’s Plumbing, Heating and Air Conditioning, lien claimant Alan Moelleken, M.D., sought to re-litigate the issue of AOE/COE in an effort to enforce its lien.

That issue had been one of several at a trial which the applicant lost and the defendant won – applicant had failed to carry his burden of proving that the injury he allegedly sustained arouse out of employment and was sustained in the course of employment.

Well, if there was no industrial injury, and defendant is not liable for applicant’s medical treatment, then what rights does a medical treatment lien claimant have to any such recovery?

According to this case – none.  Not even, much to lien claimant’s dismay and your humble blogger’s delight, the right to litigate, or rather re-litigate, the questions of causation.

Lien claimant in this case presented the argument that, even though applicant failed to prove that the injury was industrial in nature, lien claimant could do a better job and get the job done.

Fortunately for the defense, the workers’ compensation Judge and the Workers’ Compensation Appeals Board both saw this claim for exactly the maneuver that it was.  Lien claimant was attempting to wear down the defense by forcing it to pay the litigation costs of a second trial.  The WCJ’s response was correctly stated:  “Lien Claimants are collaterally estopped from again litigating the issue of injury AOE/COE.”

Good news, dearest readers, good news!  Workers’ compensation defense attorneys often enough have to provide bad news, but today is an exception.

Bearing the hopes and dreams of the defense community, the defense in the Valdez case has filed a petition for a writ of review before the California Supreme Court.

As you may recall, the Valdez case has been an emotional and legal rollercoaster for all the lawyers and adjusters in California, as it first gave the Medical Provider Networks considerable teeth in an en banc decision before making it once-more toothless in a subsequently published Court of Appeal opinion.

If the Supreme Court elects to review the case, it will have to decide what the legislature intended in allowing for MPNs.  Was it just an effort to limit the medical expense imposed on the defense by pre-negotiating the costs of medical treatment for (allegedly) injured workers?  Or did the legislature intend to provide a middle-ground of medical-legal opinions?

It is my understanding that the Supreme Court Justices are regular readers of this blog, so I shall offer my reasoning and submit it to those Justices for consideration.

Prior to the “big reform” of 2004/2005, the parties used to retain their own Qualified Medical Evaluators; now there is a panel process that removes some of the choice from the parties.  The legislature most likely intended to do the same thing with the treating physician.  After all, the defense can create a medical provider network and the applicant may choose a treating physician from within that network, which should include at least 3 physicians of every specialty.

If, as the Court of Appeal found, reports of non-MPN treating physicians are admissible, hasn’t the applicant’s right to an Applicant Qualified Medical Evaluator survived the reforms and the defied the Legislature’s intent?  After all, an applicant with no exposure to the workers’ compensation system will likely defer to his or her attorney in terms of treating physician, and the applicant’s attorney probably knows a few physicians in each specialty that tend to… well… give undue weight to subjective signs of impairment.

Here’s hoping that the Supreme Court grants review and gives the MPN its teeth back!

Happy Friday!

This is going to be a fantastic weekend for all of your humble blogger’s wise and loyal readers.  Years of exposure to the radiation of workers’ compensation has gifted this workers’ comp. attorney with foresight, and he is sure that good times will be had by all these coming days.

With that, allow his humble blogger to send you off with an interesting story.

Recently, through the generous consideration of a reader, I have gotten in my hot little hands the opinion of a workers’ compensation Judge disallowing the lien of a medical group.  Now, to protect the innocent, and to some extent the guilty, I’ll have to refrain from naming names… as much as I might like to.

That being said, the opinion is a fantastic one for highlighting some of the red flags that should go up, especially when dealing with lien claims.

In this case, the allegedly injured worker claimed a pantheon of hurt body parts from head to toe after lifting a tire.  These body parts, of course, included head, neck, shoulders, chest, ankles, hearing problems, abdominal pain, psyche, sleep disorder, depression and sexual dysfunction.  (Folks, again, I do not make these up.  I don’t think I could come up with wackier stories than those that actually go on in the workers’ compensation system.)

Within eight days of this alleged injury, the lien claimant had already run up a bill of over $2,000, including EMG and NCV studies, multiple toxicology studies, and ten supplemental reports as well as 5 PR-2 reports.

Then the referrals started.  Pain management, sleep latency testing, more sleep studies, internist evaluations, etc.

So what were the red flags for the workers’ compensation Judge?

Legalese – in his initial report, the “injured” worker claimed several body parts as compensable consequence.  Legal terms at this stage of the claim should give rise to a lot of concern as it indicates that someone is trying to “game the system” as the kids say.

Laundry-list of body parts – from lifting a tire, which could perhaps be granted as a back injury, every conceivable body part was claimed as injured.  The WCJ aptly noted that the “account of symptom development strains credulity.  There is no plausible explanation of how lifting a tire… caused injury from neck to ankles and chest to hands.”

Applicant didn’t testify – the fact that the applicant did not testify at trial is not always a red flag, but it is definitely worth noting.  When a party refuses to testify, my natural assumption (rebuttable though it is) gravitates towards the fact that the testimony is under penalty of perjury.

Russian Novel of Medical Reports – There is no conceivable reason why there should be more reports than days following an injury.  The fact that fifteen reports were generated eight days after the injury suggests a feeding frenzy for medical bills.

So keep alert, dear readers, because when you’re able to point these red flags out to the WCJ, you’re more likely to get a gem of an opinion such as the one that graces my work desk as this post is written.

Have a good weekend!