Archive for November, 2012

WCAB Powerless to Redact PTP Reports; Make Defense Pay for Non-Report Treatment

November 30th, 2012 No comments

Sit back, dear readers, and hear a wonderful story – one that will warm your hearts and soothe your hurts after another week of the senseless mayhem that is California workers’ compensation.

Imagine a worker sustaining an injury and receiving an award for future medical treatment.  As the award is often the end of the contest for many defendants, it was just the beginning for the worker’s self-insured employer.

Years of litigation would follow, disputing what was reasonable and necessary at every step.  The injured worker, representing herself, regularly shirked procedure and regulation alike, increasing the chaos involved.

During this non-stop rampage of workers’ compensation treatment battles, applicant, defendant’s attorney, and the workers’ compensation Judge became well acquainted with each other.  Meanwhile, applicant switched her primary treating physician again and again (by her choice because she wasn’t happy with the physician, and then by the actions of the defense because her preferred physicians were not complying with reporting requirements).

After applicant reluctantly returned to her old PTP for a couple of visits, she went AWOL and began treating with the physicians that had been administratively removed for not providing timely treatment reports.

The WCJ eventually came up with a solution to the problem – he ordered defendant to reimburse applicant for self-procured treatment with the administratively removed physicians, and also ordered defendant to help find a new primary treating physician that would accept a workers’ compensation patient and could keep to the reporting requirements.  Additionally, the WCJ ordered that the reports of the treating physician applicant so despised and disagreed with be redacted, so as to prevent the disputes of the past from poisoning the treatment relationships of the future.

So defendant was faced with the prospect of paying for physician visits and treatment which it could not review or monitor, and wasting the money paid for the treatment received by applicant’s previous primary treating physician.

Naturally, defendant had a problem with this – and decided to appeal.  The Workers’ Compensation Appeals Board decided to let the matter stand as it was and denied defendant’s petition.  Then, something miraculous happened – the Court of Appeal chose to grant defendant’s petition for a writ of review, and ordered the WCJ’s order rescinded.

With respect to reimbursement, the Court of Appeal correctly noted that “[t]he WCAB, by denying the petition for reconsideration, acted without authority when it condoned [applicant’s] return to the same office that had been administratively removed.  We agree with [defendant] that she should not be allowed to circumvent a proper and valid order by seeking treatment [with physicians who have not] complied with reporting requirements.”

With respect to the redacted reports, the Court of Appeal held that the WCAB does not have the power to remove the reports of a primary treating physician from the record, even in complicated cases or in cases where there is an ongoing feud between employee and physician.

So, what does that mean for your weekend?  For one thing, this case should send a clear message to the treating physicians out there that think the title “Dr. Fancypants” means they don’t have to issue timely and complete reports… the defendant might have to foot the bill, but it always retains the right to monitor the course of treatment and challenge it for reasonableness and necessity.  And even Dr. Fancypants has dry-cleaning bills to pay.

Additionally, the treating physicians’ reports stick to the record like white on rice.  Just because a treating physician gives the applicant a diagnoses that he or she isn’t happy with (ranging from “you can go back to work” to “you’re addicted to opioids.”)  So while the applicant forum shops for new treating physician every time the current PTP gets wise to the scam, the record grows and grows.

The case? Adventist Health v. WCAB (Evelyn Fletcher), recently ordered published by the Court of Appeal.

An interesting side note – once an injured worker has received an award for future medical treatment, there is little incentive for an applicant’s attorney to represent the injured worker for purposes of enforcing the award.  In fact, applicants often have a hard time finding representation for the purposes of enforcement of future medical treatment, unless they are willing to settle out their future medical treatment award so an applicant’s attorney can cash it.  Perhaps the next round of reforms could allow injured workers to hire attorneys to enforce awards (on an hourly basis or so)?

No Presumption of 132a Discrimination for Failure to Accommodate Restrictions

November 28th, 2012 No comments

California Labor Code section 132a prohibits discrimination against employees for their industrial injuries… not news, I know.

In the recent panel case of Craig Gonsalves v. United Parcel Service, applicant sustained an injury while employed as a delivery driver for UPS and, in addition to his case-in-chief, which was resolved by Compromise and Release, made claims of three instances of discrimination on the part of the employer.

The first was that Mr. Gonsalves was fired in 1997.  This was for an unauthorized leave of absence – his treating physician had released him to work but Mr. Gonsalves decided not to deliver on his obligations to go back to work.  (Get it? Delivery driver… deliver…)  The workers’ compensation Judge found no support for a claim of discrimination in this instance, but found instead that “[i]t would appear … that that termination arose from necessities of doing business, and I find no evidence to the contrary.”

After applicant’s complaints, some based on additional medical evidence, defendant rescinded the termination notice, but then provided another termination notice because of the work restrictions imposed by his treating physician.  The work restrictions required applicant to work no more than eight hours a day for two weeks, and apparently UPS was unable to accommodate this as UPS drivers tend to work ten-hour days or more.

This time, the WCJ found UPS’s position less than persuasive, reasoning that UPS is a “large, national employer with considerable resources, and it is difficult to imagine how it would be a hardship, undue or otherwise, to relieve one driver after eight hours in each of ten working days.”  Finding no basis for a business necessity defense, the WCJ found that the employer did violate Labor Code section 132a in this instance.

Now, my dear beloved readers know that their humble blogger is never inclined to agree with any decision that disfavors the defense, but in this instance, the WCJ has a legitimate point.  What UPS should have done, and what it apparently did not do in this case, was show that such an accommodation would be an undue burden.

Basically, it would need to show that in a business model that requires 10-12 hour delivery routes, it would be impractical to assign a different driver for just 2-4 hours for 10 days, and UPS would understandably have a standing policy against such accommodations – everyone would want one.  After all, even UPS’s website says it delivers between 9 in the morning and 7 in the evening, so 20% of the packages would have to be delivered the next day or later based on a 9 to 5 schedule.

The Workers’ Compensation Appeals Board reversed, however, reasoning that: “[t]he WCJ’s assessment that ‘it is difficult to imagine how it would be a hardship, undue or otherwise, to relieve one driver after eight hours in each of ten working days’ is speculative and not supported by evidence.”

Additionally, applicant failed to carry his burden under Lauher to show that he was singled out for disparate treatment because of the industrial injury.  Presumably, Mr. Gonsalves would have to show that his co-worker Jack, who hurt his back on a camping trip, was provided an eight-hour delivery route.

Categories: 132a Tags:

Falcons Score! NFL Players Barred from CA Comp

November 26th, 2012 No comments

Sweet Golden Falcons of Justice!

Last week, California put aside its workers’ compensation squabbles and focused instead on some non-workers’ compensation gobbles – turkey!  Thanksgiving tables were set, football was played and watched, and a fun time was had by all.  No one realized it, but football became more possible because of a small victory against those who would use workers’ compensation in California to make football unplayable (or at least more expensive).

My beloved readers (for whom this humble blogger gives endless thanks all year round) will recall an earlier post discussing the National Football League and the Falcons’ efforts to sue former players to force them to abandon their California workers’ compensation claims and bring them instead in Georgia, as per their players’ agreements.

It appears, now, that U.S. District Judge Thomas Thrash found that the players cannot bring their claim in California, and must instead pursue their rights under Georgia’s workers’ compensation law in Georgia.  Ain’t that a peach of a ruling?  Judge Thrash “rejected the players’ claim that the award violated California public policy, noting that the players never proved they were explicitly injured in California, where they had played only two percent of their Falcons games. 

So what does that mean for your weekend?  Many professional sports franchises will be able to reduce costs by avoiding the bottomless pit of workers’ compensation liability found in California.  Additionally, if you’re an employer sending your employee to California for business (meetings, conferences, recruitment events, etc.) perhaps you can seek to duplicate the success of the NFL and the Falcons by including a workers’ compensation forum selection clause in your employment contract.

As for California, the victory is bitter-sweet.  On the one hand, the workers’ compensation system is overloaded as it is, and there is no need for more applicants, more cases, and more delays in access to the trial calendar.  On the other hand, attorneys on both sides of the divide are sad to see less business stroll through their doors.

Categories: Jurisdiction, Uncategorized Tags:

Happy (Early) Thanksgiving!

November 21st, 2012 No comments

To my dear, beloved readers, your humble blogger sends out his more heartfelt wishes for a happy Turkey Day.  Going to the stores, it may appear that there’s no Thanksgiving… only Halloween and Christmas.  But Thanksgiving is there.  All across California, tomorrow’s dinner tables will provide a forum for widely differing intra-family political opinions to come pouring out, for freshly minted lawyers to brag about passing the bar (or hearing “better luck next time”), and for turkeys to regret accepting extra helpings of food in the previous months.


Your humble blogger will eagerly await your return on Monday.

Happy Thanksgiving!

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Waiver of Re-Hiring Upheld by Court of Appeal in Unpublished Decision

November 19th, 2012 No comments

Sometimes, the item holding up a perfectly good settlement is the issue of whether an injured worker is willing to permanently sever his or her relationship with the employer.  After all, no all workers’ compensation claims are about real injuries – sometimes the they are just one other instance in a feud between an employer and an employee.

Labor Code section 132a prohibits employers and insurers from discriminating against employers for discriminating against employees who file for workers’ compensation benefits, but typically a resignation is a necessary part of settlement for the purposes of a Compromise and Release (as opposed to stipulations).  But what about issues of hiring and, more importantly, re-hiring?

The Court of Appeal recently issues an unpublished opinion in the matter of Homeport Insurance Services v. William Lundy.  Lundy had sustained an injury and sought benefits under the Longshore and Harbor Workers’ Compensation Act.  Part of the big cash settlement was that Mr. Lundy would never seek re-employment by any of Homeport’s insured employers again.

Mr. Lundy, after cashing his check, started taking jobs from his union hall for the same employers, and Homeport sued for specific performance of the agreement.

The Superior Court Judge granted plaintiff’s motion for summary judgment, and Mr. Lundy appealed, arguing that Labor Code section 132a and general public policy prohibits the enforcement of this clause in the contract.

In its (unfortunately) unpublished opinion, the Court of Appeal affirmed the trial Judge’s ruling, reasoning that a contract is a contract is a contract, and whatever public policies are stated by Labor Code section 132a fail to override the public policy of encouraging settlement and protecting the parties’ rights to contract for their mutual benefit.

Now, your humble blogger can’t help but wonder about the ripple effect of this opinion.  Granted, there is no citable authority as yet, but employers often have very good reason to be rid of a litigious employee.  Often enough, a good, solid employee that is the victim of an unfortunate accident at work has the support of his or her employer who wants him or her back – good help is very hard to find, after all.

But there are also lazy employees who resent their employers, and think of workers’ compensation as a form of “blue collar lotto” where the slightest paper-cut should entitle them to a life of jobless ease.

So, what’s to stop an employee from resigning as part of a Compromise and Release from immediately applying for his or her old job?  “Hey – you’re going to need someone to fill that post, and who knows it better than me? You won’t even need to train me… I did this job for five years already.  What? You won’t hire me?!?  That’s just because I filed a workers’ comp claim!  That’s discrimination!”

There have been past cases on similar facts.  For example, in the writ denied case of Lois Wood v. County of Alameda, the WCAB upheld the WCJ’s finding that employer had violated LC 132a in failing to return workers to vacant positions when objectively more qualified applicants were seeking that same position.

Similarly, in the writ denied case of Michael Phillips v. City of Rialto, the WCAB also affirmed the WCJ’s finding that the employer had violated LC 132a when it failed to follow its own policy of rehiring past employees after layoffs if the same position should become available.  But neither of these cases dealt with employees resigning as part of a settlement agreement and then re-applying for the same position.

Whatever results this effort might have at trial, the employer would still be faced with the prospects of potentially costly litigation.

Perhaps this is a strategy worth exploring – having the employee agree to never seek re-employment with the employer, or at least for a number of years (10-15).  At the very least, such a maneuver should take the issue out of the “fuzzy” law of workers’ compensation and into the cold, merciless review of the Superior Court. 

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WCAB Issues En Banc Opinion on Lien Claimant Burden of Proof

November 16th, 2012 No comments

Another blow for lien claimants in California, and a big boon for the rest of us!

The Workers’ Compensation Appeals Board has issued an en banc opinion in the case of Tito Torres v. AJC Sandblasting.  The case-in-chief had already resolved (in 2005) and a lien was filed by Green Lien Collections for a lien claimant in 2010.

Prior to proceeding to trial, the workers’ compensation Judge warned the lien claimant:  “should it choose to proceed to trial without benefit of evidence or testimony that the Court would sanction Petitioner for frivolous waste of Court time and assess costs against it.”

But, not heeding the warning of the WCJ, the lien claimant proceeded to trial, relying on one solitary scrap of evidence:  an unsigned insurance form from the lien-claimant.  No written description of goods or services was included… just a total bill.  In his report, the WCJ described lien claimant’s actions as a “cavalier use of the limited Court time and resources.”

The lien was disallowed and sanctions were imposed, so the lien claimant filed a petition for reconsideration.  Things only got worse for the lien claimant from there…

In its en banc opinion, the WCAB noted that, “[w]hile this decision does not annunciate any new legal principles, we deem it necessary to act en banc because of a number of lien claimants who persist in disregarding existing law as to their burden of proof and repeatedly proceed to trial on lien claims that are so lacking in evidentiary support and/or presented with such a total disregard of existing aw as to be frivolous.  These lien claimants overburden the system, waste the limited resources of the [WCAB] and squander valuable calendar time, which otherwise could be used to address the claims of injured workers.” (Emphasis happily added by your humble blogger.)

So, what’s the real skinny on the WCAB’s holding?  Well, first-off, the WCAB held that the 1993 amendments to Labor Code section 3202.5 and section 5705 invalidated the California Supreme Court decisions in Keifer and Garcia, “insofar as they held that a lien claimant can establish a prima facie right to recovery simply by introducing a billing statement showing that services were provided to a worker in connection with a claimed injury.”  Additionally, the WCAB held that bringing an evidentiary knife to a lien-trial gun-fight “is frivolous and constitutes bad faith within the meaning of section 5813 justifying an award of sanctions…”

Now, bear in mind, dear readers, your humble blogger has witnessed steadfast defense attorneys bearing verbal lashings from WCJs for refusing to pay up on “minor” liens and wasting the Court’s time by demanding that the lien claimant produce documentation sufficient to meet its burden of proof prior to payment.  (Your humble blogger invites you to contemplate the money being “wasted” and where it came from; only one party actually pays for the workers’ compensation system.  Here’s a hint – the name of this party begins with the letter “E” and rhymes with “lawyers.”)

So if you encounter a WCJ wanting a pound of flesh for keeping the lights in the courtroom on, point to this case and invite surgery upon the lien claimant.  Thanks to this case, the defense has citable, binding precedent for recovering attorney fees for frivolous trials.

Here’s another thought – if you’re in a situation such as this, you might not have the benefit of the WCJ warning the lien claimant that a beat-down is coming unless it can “produce the goods” at trial.  So, it might be a good idea after the deadline to serve exhibits has expired, to write a letter to that effect.  (Attorneys should consult Rule 5-100.)  This should help lay the groundwork for recovering attorney fees down the line.


Categories: Uncategorized Tags:

No UR? No Problem! Pharmacist Lien-Claimant Swallows Bitter Pill of Defeat

November 14th, 2012 No comments

What happens when the defense does not comply with Labor Code section 4610?  Well, if you ask a lien claimant or one of their reps, the answer is pretty clear – there may be good in the world, there may be evil; some things may be right, or may be wrong; it’s even possible for the world to be flat… but if the employer fails to go through the UR dance, the lien claimant automatically gets paid and the adjuster has to watch the lien-claimant drink a delicious milkshake and isn’t allowed to ask for a sip.

The Workers’ Compensation Appeals Board has a slightly different take on the issue.

Labor Code section 4610 lays out the general rules regarding Utilization Review.  In the case of Thomas Coffin v. Robert Munson, Inc., a lien claimant sought to have the employer’s insurance company pay out for various self-procured medical treatment items after the insurer declined to pay for Utilization Review.

Unimpressed with lien-claimant’s bill, the defendant allowed the matter to proceed to a trial and presented no evidence.  Lien-claimant, on the other hand, presented evidence of various physicians prescribing the medications that lien-claiming provided over a 25-month period.  As the trial was nearing a close, lien-claimant was dreaming of how it would spend its $27,411.35 as claimed in the lien… until that fantasy bubble was burst by the workers’ compensation Judge’s finding in favor of the defense.

Lien-claimant had failed to provide documentation that any of the prescribing physicians were applicant’s primary treating physician as required by Labor Code section 4600.  In fact, lien-claimant failed to provide any documentation that any of the physicians prescribing the medication provided by lien-claimant were the primary treating physician at any point.

Furthermore, there was no evidence that the reports requesting the treatment were served on the defense or that they complied with California Code of Regulations section 9792.6(o).

In denying the lien-claimants petition for reconsideration, the WCAB incorporated the WCJ’s report.

Adjusters are often overworked and spend their days watching the piles of papers stack up around them as they scramble to keep up.  So, naturally, it is often easy to send everything to Utilization Review.  Sometimes, that doesn’t happen, but that doesn’t automatically mean that the defendant becomes liable for the requested treatment.

As this case shows, the burden is always on the lien-claimant to prove that the treatment was reasonable and necessary.  And for treatment to be reasonable and necessary (read: paid for by the defense) the primary treating physician needs to be in the picture.  That wasn’t the case here and the defense managed to dodge over $27,000 in bills.

Categories: Uncategorized Tags:

Touchdown For Employers on CA Jurisdiction Issue

November 12th, 2012 No comments

Some of your humble blogger’s readers really like football.  And some are interested in workers’ compensation.  For that narrow sliver of overlap, I offer the following post, which relates the story of the recent writ denied case of Michael Barrow v. Dallas Cowboys Football Club.  The issue raised in that case was whether California had jurisdiction of Mr. Barrow’s claim of cumulative trauma while playing for various football teams, allegedly sustained from 1993 to 2006.  Interestingly, Mr. Barrow had never played a single game in California, and so could not claim jurisdiction on those grounds.

So, what was Mr. Barrow’s theory?  How was he hoping to “score a touchdown” against his employers?  (Get it?  Because it’s a story about football?)  California sets its jurisdiction for out-of-state injuries based on where the contract of hire was completed.  (See Labor Code sections 3600.5(a) and 5305).  Therefore, an employee who signs his employment contract in California, or orally accepts the terms of employment over the phone while physically in California, can later invoke California jurisdiction.

But Mr. Barrow didn’t live in California, nor was he in California when he signed any of his contracts.  His theory relied on his attorney and agent, who had an office in Los Angeles.  This attorney negotiated all of Mr. Barrow’s contracts and communicated their terms to him by phone.  When Mr. Barrow became inclined to accept, he would tell his attorney, who would then call the team office and let them know.  Mr. Barrow was then flown out to that office and signed the contract in person.

Isn’t that enough?  After all, the lawyer was in California and there were phone calls made and shouldn’t California be able to give a proverbial arm and an equally proverbial leg from the football teams to Mr. Barrow?  After all, he’s suffered so much, just look at this video of him suffering as he takes what meager employment he can due to his severe injuries…

Well, the workers’ compensation Judge agreed.  The WCJ found that, in communicating his intent to accept to his lawyer, who was in California, and then having his lawyer communicate this intent to the team with which Mr. Barrow was signing on, California jurisdiction was activated.

The Workers’ Compensation Appeals Board, however, was not persuaded.  Although the WCAB recognized that California has jurisdiction over injuries sustained out of an employment contract accepted within the state, this requires the presentation of “sufficient evidence to show that the contract was actually accepted, and thus became binding, within California’s borders.”

The fact that, after all was said and done, applicant still had to fly out to and sign a contract, proves fatal to any argument in support of California’s jurisdiction.  The employment contract became binding somewhere other than California.

So, what lesson can employers take away from this case?  It doesn’t matter if you’re a professional sports team or a hospital or a widget factory – if you’re interested in hiring someone who resides in California for work outside of California, make sure they have to travel to the nearest town in Nevada, Arizona, or Oregon to sign their contract of employment.  It might sound silly to waste a plane ticket in our modern world of scanners, e-mail, and genetically engineered (and delicious) carrier pigeons – but it’s worth it.

California is one of the most expensive states when it comes to workers’ compensation, and the cost of litigation alone (not to mention medicals and permanent disability indemnity) will quickly outpace this simple precaution.


Categories: Jurisdiction Tags:

Happy Veterans Day 2012!

November 11th, 2012 No comments

Dearest readers,

Your humble blogger would like to take this opportunity to wish his readers a very happy Veterans Day.  Workers’ compensation can take its toll on a participant’s optimism, and can drive even the humblest blogger and the humblest blogger’s dearest readers into cynicism.

Fortunately for us, we have such national holidays as Veterans Day to remind us that there is a much bigger world and a much bigger picture out there.

WCDefenseCA offers a hearty thanks to all those who served and all those still in service – the men and women in uniform who make it possible for the rest of us to become preoccupied with problems petty in comparison to their own.

Thanks for your service!



Categories: Holidays Tags:

The Waaaaaaiting is the Hardest Part

November 9th, 2012 No comments

Are you ready for another boring post about how to properly perform an internal calibration of your task assignment system in workers’ compensation?  It’s very important for all adjusters to take notes on this post because it can get pretty complicated and math-heavy…

Now that all the applicants’ attorneys and applicants have stopped reading… on to the real post!

The other night, your humble blogger sat at a kitchen table with his elder cousin Jeffrey.  Through a mixture of adoptions, arranged marriages, one duel with pistols at dawn, and some babies switched at birth, Jeffrey became your humble blogger’s oldest cousin, and at sixty-five years young, remained eternally optimistic about all things.

Cousin Jeffrey related to me the news that had him extra-optimistic: he had finally decided to ask out the love of his life.  He had known her in highschool and had even asked for her phone number, but had been biding his time for the perfect moment to call her.  Now, after almost five decades, the time was ripe and he was going to make his move.

Your humble blogger has this advice to you, my readers:  in matters of the heart, do what feels right; in matters of workers’ compensation, do not hesitate and make your move early!

Such advice would have been of some use to the applicant in the matter of Elsa Serrano v. ITT Cannon Electrics.  Therein, the defendant had successfully sought dismissal of two cases, and a notice of intent to dismiss was served by the Board and the defendant in January of 2010.  The order was signed in June of 2010, and this time the defendant alone served the applicant and her attorney with the order.

Applicant attempted to file a new application in 2011 for the same injury, but was barred by the statute of limitations.  So, applicant attempted to contest the dismissal of her previous applications (some fourteen months after service of the Notice of Intention to Dismiss).  Applicant testified to never having been informed of the dismissal by her attorney until recently, and that the Proof of Service for the Order had an incorrect zip code (off by one digit).

Based on this, the workers’ compensation Judge ruled that the Order was not final (due to defective service) and allowed applicant to contest the dismissal.  When the defendant sought reconsideration, the WCJ cited California Code of Regulations section 10500(b), noting that all final orders must be served by the Board and not be designated to other parties for service.

The Workers’ Compensation Appeals Board, on the other hand, was not of the WCJ’s mind.  In granting defendant’s petition for reconsideration, the WCAB reasoned that a harmless error, such as an incorrect zip code, is not good cause to rule a previous order of dismissal as anything other than a final order.  The applicant did not even testify to not having received the order, but rather that she couldn’t remember if she had.

According to the United States Postal Service, an incorrect zip code will result in a delivery delay.

So, dear readers, while it is never too late for love, and never too late to try new things, workers’ compensation is a place where the early bird gets the worm, and for the defense, the waiting is the hardest part…


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