Archive for December, 2012

Happy New Year!

December 31st, 2012 No comments

Tonight, as the clock strikes midnight, we will all find ourselves in 2013 – good luck to us all!

WCDefenseCA wishes all its readers good fortune in the coming year.  Maybe it’s the full tank of gas after visiting a gas station, maybe it’s the fact that all pennies found in the last two weeks have been heads up, or maybe it’s winter spirit… for whatever reason, your humble blogger feels that good things are coming in the 365 days ahead.

So, dear readers, let the defense community interlock its shields, tighten its belts, and meet the dangers looming the road before us head on.  And when the night seems dark, when the troubles seem overwhelming, when the lien claimants swarm and block out the sun, your humble blogger will be here by your side to see every last benefit denied and every last experience modification reduced. (At least that’s my new year’s resolution — what’s yours?)

So long, 2012 – hello 2013!

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Wolf Fraudster Goes Down!

December 28th, 2012 No comments

Hello Dear Readers!

Your humble blogger comes bearing a gift of good news – though he suspects his beloved readership has something better to do on the few days between Christmas and New Year’s than read these posts.

As my readers may recall, a certain fraudster “expert” by the name of Joseph Arthur Wolf, was charged with 16 counts of perjury by the San Diego District Attorney’s office.  This “expert” would testify in lien claim matters on behalf of Wolf & Associates, a lien recovery outfit down in Southern California.

To bolster his credibility, he would testify to various little accomplishments such as having been a police commissioner, a president of the Board of Health, and an Assemblyman.  Other lies were told too.

Well, it appears that the good people of San Diego does not take kindly the to the Mayor of Fantasy Land blowing smoke in their faces.  The DA’s office pursued this matter diligently and your humble blogger’s sources inform him the big bad Wolf huffed, and puffed, and plead to various perjury counts.  He was sentenced to 3 years felony probation, 20 hours of community service (they will verify where this community service was done, won’t they?) and court costs.

Unfortunately, Mr. Wolf will not see the inside of a jail cell, nor has restitution been ordered.  Your humble blogger is informed that when one robs a bank, even after a conviction, one does not get to keep the money.  Unfortunately, the same does not apply for the lien game in California’s workers’ compensation system.


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Why Wait to Strike? No More 10-day Conferral Period on Panel QMEs

December 26th, 2012 No comments

Some of my readers may recall an earlier post in the matter of Yesenia Guillen v. Adrid International, LLC, in which a panel of WCAB commissioners ruled that the 10-day waiting period to meet and confer is not mandatory, and that a party may immediately strike a name from a Qualified Medical Evaluator panel without “conferring.”  It looks like the Court of Appeal has denied review of this case (see 2012 Cal. Wrk. Comp. Lexis 154).  But, interestingly enough, this issue may be made entirely moot by SB-863.

The new Labor Code section 4062.2 is amended to read, in pertinent part, as follows:  “Within 10 days of assignment of the panel by the administrative director, each party may strike one name from the panel.”  (See section 29 of SB 863.)

And, as we know from section 84 of the same, this new procedure is effective immediately.

Say what you will about other parts of SB-863, but your humble blogger likes this very much – we all know the doctors and the quacks, the healers and the hacks, who has and who lacks… and we don’t need 10 days to “confer.”  In fact, if the parties want to go to an Agreed Medical Evaluator, they can do so even after the 10-day conferral period.

The 10-day delay in striking a name from the panel only served to create more litigation, with parties like the defendant in the Guillen case and applicants’ attorneys in other matters using it to twist the panel process based on technicalities.  It also lead to others in the practice putting in needless filler language such as “we strike the name of Dr. Quack effective on the first day the party has the right to do so as per Labor Code section 4062.2…”

Ho… Ho… Ho…


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Merry X-Mas from WCDefenseCA!

December 24th, 2012 No comments

Hello, dear readers!  Your humble blogger wishes you a very merry Christmas this year.  May Santa bring all the adjusters and defense attorneys presents this year.  And as for the lien claimants and the applicants’ attorneys: in some countries, coal is the best present and will warm you and your family for the winter season.

Here’s wishing you a safe and happy Christmas with the people who really matter in your life, before you have to return to the cold world of workers’ comp (where it’s winter all year round!).



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Discrimination Claim Defeated With Credible Testimony of Pre-Injury Intent to Fire

December 21st, 2012 No comments

Your humble blogger brings you news, dear readers, both good and bad.  The good news first – if you’re reading this, the Mayan Apocalypse has been cancelled, and now joins the ranks of other end-of-the-world myths, including Zombie outbreaks and the cataclysmic destruction of the world’s coffee supply (Zombies one can survive; coffee shortages? Not so much).  The bad news is, we still have applicants claiming they were fired because of their alleged workers’ compensation injuries, and not because they were poor quality employees.

I submit for your review the case of Lucas Marinics v. Gilmore Heating & Air Conditioning, a recent panel decision.  Applicant’s employment was terminated shortly after his industrial injury to the shoulder, so a Labor Code section 132a claim was filed.

Well, the defense put on its witnesses – employers managers and applicant’s supervisors testified to the fact that they had already planned to terminate applicant’s employment because of poor quality of work, but were delaying due to a temporary work increase.  So, at the time applicant was injured, his employer had already planned to fire him like a watermelon store might fire Gallagher.

Applicant’s retort was “you lie” and even cited a prior determination with respect to the issue of temporary disability, reasoning that since the insurer could not terminate his temporary disability benefits due to the termination of employment, he was home free on the 132a.

Well, the workers’ compensation Judge was not buying it – he observed the testimony of the managers and found them to be credible.  With respect to applicant’s argument applying the finding on the temporary disability issue, the WCJ noted that the prior determination was that the insurer had failed to show good cause for the termination, and thus did not carry its burden of being relieved of paying temporary disability benefits.  The WCJ ordered that the applicant to take nothing on his 132a claim.

Not discouraged, applicant sought reconsideration, arguing that the defendant’s witness testimony was not credible.  The WCAB, in a split panel, denied reconsideration, reasoning that the WCJ is best suited to determine credibility and had found the defense witnesses credible.  However, there was a dissenting voice in this one – Commissioner Caplane dissented, reasoning that the facts here are in favor of a finding of 132a violation.

Commissioner Caplane’s dissent makes a very interesting point – defendant claimed that applicant’s employment was to be terminated, but the month was far too busy and defendant’s disruptive behavior and attitude problems were being tolerated because of the large work load.  To quote the commissioner, “[after the injury i]t was still July, it was still the busy season, defendant still had too much work to do, applicant was still difficult to get along with, but one thing changed.” (Emphasis original).

Defendant was going to fire applicant, but didn’t because there was too much work to do and applicant could do the work.  The facts make it look like defendant fired applicant at that time because of his injury, even though he would have been fired later for his conduct.

Now, my dear readers know that their humble blogger is no poster boy for the CAAA, but this is a valid point.  Ultimately, the WCJ’s opinion should have been upheld – he was there, he observed the witnesses testify, and, being a seasoned WCJ, he was not some naïve babe in the woods to be fooled: the witnesses seemed credible and the WCJ’s findings were legitimate.

But, this can still serve a lesson to all of us – with the ease of an e-mail, defendants could have simply shown at trial that they had already planned to fire applicant on the day of his injury.  In fact, had this documentation existed, it would be a reasonable line of investigation to find out whether applicant had somehow found out about this plan, and decided to induce, fake, or report an injury on that date to avoid the termination of his employment.

In other words – don’t discriminate against employees for claiming workers’ compensation benefits; but also, keep good notes!

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No More Boilerplate PTP Objections?

December 19th, 2012 No comments

The legislators have changed the beat of the QME dance yet again, and now our foot-work must match the tune.  It looks like the boilerplate – “I object; here is a pro-my-side QME I am proposing as an AME;  I’ll file a panel request for a [chiro/ortho] in 16 days from today” will no longer work.

The new emergency regulations to be submitted tomorrow to the Office of Administrative Law, would require an objection letter to do more than just complain – section 30, subsection (b)(1) would require any request for a QME panel to “attach a written objection indicating the identity of the primary treating physician, the date of the primary treating physician’s report that is the subject of the objection, and a description of the medical dispute.”

So, what does that mean?  Applicants will have to put in some leg work in getting a panel, and blanket objections will not do.  Furthermore, it looks like the Valdez case will be considerably less relevant – a new timeline is included in Labor Code section 4062.2… and it doesn’t require the proposal of Agreed Medical Evaluators, just the first possible day to submit a request for a panel:

  1. In cases of requests for medical evaluations under Labor Code section 4060, the first working day that is at least 10 days after the date of mailing of a request for an evaluation;
  2. In cases of 4061 or 4062 medical disputes, the panel request shall be made “[n]o earlier than … the first working day that is at least 10 days after the date of mailing of an objection”.

So, once the proposed regulations are approved, keep an eye out for applicants’ objection letters – if you’re beaten to the punch and the panel is issued in an inappropriate specialty, perhaps the panel request can be invalidated based on failure to adhere to the regulations.  At the very least, we should see litigation on this issue in the coming months.


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New Regs on Request for Treatment Authorization

December 17th, 2012 No comments

Happy Monday, dear readers!  The Holidays are upon us!  Channukah (Hag Sameach to my Jewish readers!) came to a close over the weekend, and Christmas is just around the corner (Feliz Navidad!)

Always eager to please, your humble blogger has prepared this post to get you into the festive spirit with a lump of coal for all the naughty lien claimants in California’s workers’ compensation system.  Now, granted, in certain parts of the world, a lump of coal is a wonderful gift that will literally keep the family warm on Christmas, but in California, coal isn’t going to help pay for any lien claimant’s vacation home or golden back-scratchers.

What is this lump of coal?

Well, often enough, lien claimants complain and complain about unpaid “medical” bills even though the treating physician had prescribed there much-needed “chanting therapy” or “television-based rehabilitation.”

Well, California Code of Regulations section 97292.6, subsection (o), specifically lays out what the treating physician needs to do in order to request authorization for treatment.  That includes filling out the PR-2 form or a narrative report containing all the information on the PR-2 form with a “request for treatment” across the top of the first page.

Well, no more!  For injuries occurring after January 1, 2013, or requests for treatment made after July 1, 2013, any request for authorization will have to be made on the section 9785.5 Request for Authorization form.  Assuming the proposed regulations are approved, narrative reports will no longer be sufficient – the form will have to be used.  And, if the form is not used and filled out with all “mandatory fields” (proposed regulation section 9792.6.1(o)), the defense will not have an actual request for authorization of treatment.

Another interesting aspect of these proposed regulations is that, just over fifty years after the first e-mail was sent, the regulations now recognize that e-mail is an appropriate way of communicating information.  Reports and requests for authorization can now be transmitted by mail, facsimile, or e-mail (carrier pigeon ended up on the chopping block).

This is actually a negative for most of us on the defense side – your typical adjuster is overworked and swamped with letters, faxes, and e-mails… this may make it possible for more treatment requests to fall through the cracks.

There are more proposed regulations, dear readers, and more on the way, but hopefully we’ll have a grip on these “reforms” before too long!


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Too Disabled for the Postal Route, But Fit for the Ski Slopes

December 12th, 2012 No comments

Skiing is a wonderful sport.  It can do wonders for your entire body, allows you to breathe fresh, cool, air, and can even keep the worst of your symptoms in check.  Not really… Here’s a pro-tip: if you’re off work on workers’ compensation and the “gubmn’t” is paying you workers’ compensation benefits because you allegedly can’t work, DO NOT go skiing.

Mark E. Leung has been indicted on 11-counts of wire fraud, mail fraud, making false statements to obtain federal workers’ compensation.  What did this fraudster do to warrant the slow and steady hand of justice?  Apparently, after sustaining a work-related injury in 1987 while working for the United States Post Office near Tahoe, CA, he continued working until around September of 2007, when he began to claim that he was totally disabled.  He received roughly $160,000 between then and November of 2012.

So where’s the fraud?  Unless the U.S. Post Office established a mail route to the top of the Heavenly Ski Resort in Lake Tahoe, Mr. Leung was not so disabled.  He enjoyed at least 40 days on the slopes of each ski season, and was observed performing arduous physical labor on numerous days.

Does this bring to mind a certain “disabled” firefighter setting running records and competing in MMA?

Now, bear in mind, dear readers, your humble blogger does not expect anything less from fraudsters.  Mosquitoes suck blood, bees make honey, and fraudsters commit acts of fraud – nothing to be surprised about.  But for over five years this guy was enjoying the slopes and collecting benefits, while my postman had to carry more and more mail himself with less help around.  What took so long?

Often enough we’ve seen stories of benefits being paid out and fed-up business owners or diligent adjusters catching the fraudsters red-handed… but does the government not react until a disgruntled co-worker or feuding neighbor blows the whistle?


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Looking for Logic and Latin at the WCAB

December 10th, 2012 No comments

When your humble blogger was in law school, he was automatically enrolled in a class called Torts.  His dreams were hopelessly dashed when he discovered that, not only did the class have nothing to do with pastries, but the course was also to be taught in Latin (at least in part).  In fact, some of the Latin taught to this humblest of bloggers was “Res Ipsa Loquitor,” or the thing speaks for itself.

The case was an old one about a man walking down the street past a warehouse where workers were loading barrels out of the 2nd-floor storage onto trucks below.  Suddenly, a barrel rolled off the second floor and hit the man walking on the street, causing serious injury.  The court found liability because the facts established the outline of the fact-pattern, and the rest could be assumed as the natural course of events given the circumstantial evidence.

Your humble blogger feels a bit cheated – it turns out this doctrine has no effect in California Workers’ Compensation law, at least when the issue of an applicant’s intoxication is before the bench.

The recent panel decision in the case of Elvira Vasquez v. Del Monte Foods comes to mind.  Applicant was barred from recovery after sustaining an injury to her right hand because the workers’ compensation Judge found the claim barred by the intoxication defense of Labor Code section 3600(a)(4).

Applicant, a front-runner for the Darwin Award, decided that the best possible course of action was to take amphetamines and methamphetamines, prior to operating a forklift.  WCDefenseCA obtained exclusive footage of the event.

Applicant was taken to the emergency room where she provided a urine sample for a drug screening.  The safety coordinator overheard applicant ask her daughter to bring a clean urine sample, and told the nurse, so a second urine sample was taken and tested.  The panel QME found that those levels of Amphetamine and Methamphetamine in applicant’s blood were “certainly significant, and [were] very high, supporting a conclusion of a high probability of impairment.  This degree of impairment is sufficient to describe as performance impairing.” “Very high” is right.

So why is the defendant on the hook?

The Workers’ Compensation Appeals Board cited Pirelli Armstrong Tire Corp v. Workers’ Comp. Appeals Bd., a 1999 writ-denied panel case for the proposition that the burden remains on the defendant to show (1) applicant was intoxicated; and (2) the intoxication caused the applicant’s injury.

Your humble blogger respectfully disagrees – at a certain point we must respect an implied citation to common sense.  If applicant was seen eating a sesame seed bagel prior to being struck by lightning, and the autopsy showed signs of opium, perhaps there would be a real question of fact as to the intoxication defense (everyone knows that Zeus prefers blueberry bagels instead).  But, instead, in this case you have an applicant testing positive for Amphetamine and Methamphetamine right after the injury… and she tried to get her daughter to provide clean urine to conceal the fact.

Absent a confession, what evidence could the defense put on?  By interpreting the law to impose an unreachable standard upon the defense, isn’t the WCAB effectively overruling a state law?  Hopefully applicant can walk away from this experience with the lesson that work comes before play, and operating heavy machinery comes before hitting the friendly neighborhood meth lab.

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“He Started It!” Initial Physical Aggressor – Part 3 of 3

December 7th, 2012 No comments

So dear readers, there I was.  Sitting at Thanksgiving dinner, looking at poor cousin Milosh staring helplessly at his food as he pondered his fate at the broom factory.  Would his claim for workers’ compensation benefits, based on injuries sustained during his fight with co-worker “Nasty Nate” be barred by the initial physical aggressor defense (“IPAD”)?

In order for Milosh to survive the IPAD, Nate would have to be the initial physical aggressor.  When Nate taunted cousin Milosh and insulted his broom-making skills, it probably didn’t rise to the level of initial physical aggressor as articulated in the Mathews case.  So Nate was probably still in the “horseplay” arena.

What about the handful of broom-bristles Nate threw at Milosh?  Well, broom bristles can be fatal to dust, dirt, crumbs, trash, and messes, but it might be a stretch for cousin Milosh to claim that the handful of broom-bristles thrown at him put him in reasonable fear of bodily harm.  So Nate was still probably in the “horseplay” arena, and cousin Milosh was no closer to the workers’ compensation gravy train of paid time off, free opioids, and court-ordered ramps on his vacation home.

So what about Milosh spitting on Nasty Nate?  After all, in the cases of Thomas and Galindo mentioned in last-time’s post, spitting was a key factor in finding the “spittor” the initial physical aggressor.  Well, cousin Milosh aimed the spit at the floor and hit Nate’s shoe.  Hardly the same sort of aggression as spitting in a person’s face!  What happened next was a pretty clear sign of aggression, the act of Nate charging and kicking and punching and injuring.

As much as your humble blogger hates to say it, cousin Milosh just might have a claim that would survive the initial physical aggressor defense.  Cousin Milosh’s response was just what you’d think it would be when I reluctantly told him the good news.

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