Archive for June, 2013

Every Lien-Related Hearing is a Lien Conference

June 28th, 2013 No comments

Your humble blogger hopes that his beloved readers, thirsty for knowledge and patient in its method of delivery, would care to read this post about liens.  On the bright side – it is yet another opinion where the mighty fist of justice crushes the hopes and dreams of several lien claimants, so that’s something to be happy about.

In case your patience is running out, the basic thrust is this: it doesn’t matter who sets the hearing, or how the hearing is labeled – if the main subject of a conference is liens, then the conference is a lien conference, even if it is noticed as a Mandatory Settlement Conference, a Status Conference, or even Happy Hour at the Board.  Don’t believe me?  See rule 10770.1(c).

The panel decision of John Anderson v. Eco Building System addressed this very issue.  The Workers’ Compensation Judge set the claims of several lien claimants for what was noticed as a MSC, so, naturally, defendant’s request that the liens be dismissed for failure to pay a lien activation fee pursuant to California Code of Regulations section 4903.06 was denied.

But here’s the thing – whether or not the hearing is a lien conference, requiring the payment of a lien activation fee, is not up to the Judge.  There is no discretion, and lien claimants MUST pay to play, long before they waste defendant’s money with billable hours and travel expenses.

Also, the WCAB noted that the time to appeal – to petition for reconsideration or removal – starts to run from the date of a writing of an order: Order, Award, Minutes, something!  It doesn’t matter how clear it is to the parties what the decision of the judge is.  Until a writing is filed and entered into the record, the clock doesn’t start on any appeal.

So dear readers, as you head into your weekend, smile: there’s yet another pitfall for lien claimants on their way to extorting money from the defense.

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Sadly, Only One Activation Fee Necessary for Lien Claimants

June 26th, 2013 No comments

Unfortunately, the reforms of SB-863 decided that they must be at least somewhat limited in the wrath visited upon the lien claimant community – if there is more than one injury claimed, a lien claimant need only pay one activation fee pursuant to Rule 10208(a) (“where one or more liens or one or more costs filed as lien is filed in one or more cases involving the same injured worker and same service or services by the same lien claimant, only one lien activation fee is required.”)

Accordingly, in the case of Elia Hinks v. Pavlo, Weinberg & Associates, the Workers’ Compensation Appeals Board reversed the Workers’ Compensation Judge’s dismissal of a lien when the lien claimant had paid the activation fee in a companion case which had been dismissed (apparently without the lien claimant’s knowledge).

So the WCJ dismissed the lien, and the WCAB reversed… but the panel opinion doesn’t make clear whether the lien claimant presented proof of payment at the lien conference for either case.

Now, your humble blogger isn’t as dumb as he looks – he gets it: lien claimants don’t have to pay a separate fee for every ADJ number matching applicant’s name and date of birth to get a seat at the poker table.  That’s fine… except that the lien claimant seemingly failed to provide proof of any payments, even though one had in fact been made.

It’s entirely possible that in this case, the lien claimant actually did provide the proof of payment and it is just not specifically mentioned in the panel opinion.  In any case, even if the lien claimant pays the activation fee in another case, it is still the lien claimant’s burden to prove proper and timely payment at the time of the hearing.

If you find yourself in the same scenario, it might be a worthwhile argument to bring up.

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Bengals Escape California WC Jurisdiction

June 24th, 2013 No comments

Are you sick and tired of that gloomy intersection where pro-sports and workers’ compensation reluctantly meets?  Well too bad, because there’s more!

Now, I’m not going to bore you with all the details in the recent en banc decision from the Workers’ Compensation Appeals Board, Wesley Carroll v. Cincinnati Bengals.  Here is the skinny on that case: injured pro-sports player Wesley Carroll filed a claim in California after playing some 6 games in California (out of a total of 48; 12.5%).

The Workers’ Compensation Appeals Board found that one of the teams, the Cincinnati Bengals, was exempt from California’s crushing, ruthless, and back-breaking workers’ compensation system thanks to that coveted escape route of Labor Code section 3600.5.

As you may recall, section 3600.5 allows an out-of-state employer to escape California comp jurisdiction if:

  1. The employee is only “temporarily” in California;
  2. The employee is covered by extra-territorial insurance (meaning the policy applies to the worker even when he or she is out of the state in which he or she normally works);
  3. The laws of the state where the employee is normally employed are “similar” to those of California; and
  4. The state where the employee is normally employed has a reciprocity rule with California.  In other words, California keeps its hands off state X, and state X keeps its hands of California employees injured in state X.

Ok, so, why do you care?  After all, it looks like these claims might go the way of the dodo soon enough if certain legislation makes it through the Sacramento maze.  And, even if that fails, there are about 1,700 pro-football players in the United States, some of which are employed in California.  Compare that to almost 16 million people employed in California alone.  Why does this opinion matter to those of us who don’t represent or handle pro sports cases?

I’m glad you asked! (You did ask, right? This slowly unraveling blogger could have sworn he heard a voice ask…)

If we forget about the fact-specific ruling of the Carroll opinion, what is the average person left with?  The WCAB is telling us, in a binding authority opinion, the following:

A person who spent 12.5% of his time in California and the rest employed elsewhere is in the state only temporarily.  As is 15.7% (5 of 32 games played for the Bengals).  In fact, the language of the opinion lends itself to the theory that, even if applicant had spent 99% of his time in California, so long as he had the intent to leave California after his task was completed, he could still be regarded as only temporarily within the state.

Another holding to keep for future need is the WCAB’s opinion with respect to Ohio.  The WCAB here concludes that Ohio recognizes the extraterritorial provisions of other states; and that Ohio exempts California employers and employees from its own workers’ compensation system, thereby satisfying the elements of section 3600.5.

So, if you’ve got an Ohio employee temporarily in the state for a conference, recruiting, training, or a short-term project, you can rely on this opinion to help you raise the 3600.5 defense.  (Note: in a similar case, California jurisdiction was denied based on a forum selection clause.  See: Dennis McKinley v. Arizona Cardinals)

Now here’s something interesting – the WCAB ordered the Bengals dismissed and sent the matter back down to the Workers’ Compensation Judge for further action on this issue.  But what could be left to litigate about?  Well… there’s also the New Orleans Saints.  The opinion doesn’t offer much about the fate of the Saints, but it will be interesting to see the defense the Saints intend to mount (if any).

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Update: Police Officer Fraudster Sentenced

June 17th, 2013 No comments

My dear readers may recall the tragic tale of Edward Idukas who was accused of committing workers’ compensation fraud.  This former police officer was recently sentenced to 120 days in jail after pleading guilty to two counts of felony workers’ compensation fraud.  Former officer Idukas was also ordered to repay $120,000 in restitution and has lost his job.

(Special thanks to Mr. T K for the tip)

It is particularly sad to see a law enforcement officer engaged in such behavior – this man was entrusted with a badge and a gun.  He no doubt participated in several investigations, possibly testified for the prosecution in various cases, and was responsible for enforcing the law.

Given his lack of commitment to the truth and honesty, how many citations could we suspect were handed out to fill a quota instead of to punish an actual violation of the law?  How many dollars will the state now spend fighting conviction appeals from criminals who will claim that Mr. Idukas’s testimony in their respective cases was invalid?

Hopefully, future diligence will prevent such enormous costs to the public and such stains upon the reputation of law enforcement.

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Treatment Disputes to AME? Try and Stop Us!

June 14th, 2013 No comments

So, dear readers, how are we feeling about the Independent Medical Review process?  It’s a coming pretty soon, and it won’t be long before the independent medical review board is handling all cases.

Under Labor Code section 4610.5, IMR is now the name of the game – no more medical disputes to be put to PQMEs, and just Utilization Review and the IMR to decide whether applicants get those medically-necessary hot-tubs and large-screen TVs to relieve from the effects of the latest paper-cuts and stubbed toes.

Now here’s an interesting question to answer: how enforceable is Labor Code section 4062.2, subsection (f)?  After all, that section says that “[t]he parties may agree to an agreed medical evaluator at any time, except as to issues subject to the independent medical review process established pursuant to section 4610.5.”

So applicant and defendant are sitting there looking at a UR report which recommends that authorization for a recommended medical treatment be denied.  In theory, this can go to the IMR, but what if defendant or applicant proposes an alternative – “Hey, Jerry, why don’t we write a letter to the AME and have him address this instead?”

Well, why don’t they?

Sure, section 4062.2(f) says they can’t… but who is going to stop them?  If the applicant agrees, and defendant agrees, whatever the result will be, the time for conducting the IMR process will have passed by the time the AME report comes back.  And, after all, if either party goes back on its word… well… workers’ compensation is a fairly small community, and one doesn’t get many opportunities to break a promise to the same person.

After the panel process was forced on the workers’ compensation community as part of SB-899, many parties (even for injuries after 1/1/05) retained their own QMEs, and many workers’ compensation Judges turned a blind eye… perhaps we can expect the same thing for years to come?

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San Bernardino Pursues Another Fraudster Employee

June 12th, 2013 No comments

Your humble blogger, as a zealous advocate for the workers’ compensation defense community, often has feelings of frustration when law enforcement, both on the local and the state level, appears dedicate to driving desperate businesses towards extinction while ignoring the blatant fraud and exploitation practiced by certain workers’ compensation fraudsters.

Being a man of the world, your humble blogger gets it – business have money that can be taken through fines and penalties, and employees just have receipts for how they spent the ill-gotten money as soon as they ill-gotten it.  Money helps pay salaries and retirement funds and gourmet coffee in the District Attorney’s break room, while pursuing employees just gets an unenforceable verdict and (possibly) some incarceration.

That being said, San Bernardino’s district attorney’s office seems to take a different tack.  Recently, Roberto Carlos Mendoza-Lazo was charged with Identity Theft and Attempted Perjury, after the Workers’ Compensation Fraud Unit began investigating his activities.  It was discovered that he was fraudulently using someone else’s social security numbers (that’s numbers, folks, not number, because they came from more than one person) and was receiving workers’ compensation benefits as well.

This is a common enough occurrence – someone who is in the country illegally will fraudulently obtain a social security number (or numbers) to obtain employment and benefits.  This has several implications for the benefits to which that person would be entitled under California’s workers’ comp system, but it is also a crime, one which some DA’s offices are not interested in prosecuting and deterring.

San Bernardino’s DA’s office is not the only one to help protect the employers from this type of fraud, but it deserves honorable mention none-the-less.  Good luck to DDA Scott Byrd with this case!

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Voc Rehab Phone Interview Can Be Compelled

June 10th, 2013 No comments

Can an employer compel an employee’s attendance at an evaluation by a vocational rehabilitation expert?  In the case of Charles Holz v. Gottchalks, the applicant noticed his intention to present vocational rehabilitation expert testimony in an effort to rebut the Diminished Future Earnings Capacity schedule (a la Ogilvie).  But, applicant also refused to be evaluated by the vocational rehabilitation expert that the defense would have offered in rebuttal.

The Workers’ Compensation Judge denied defendant’s request for an order to compel applicant’s evaluation, reasoning that there was no statutory authority under which he could do so.  So, defendant filed a petition for removal (why not reconsideration? See here… )

The Workers’ Compensation Appeals Board granted defendant’s petition, reasoning that the Labor Code (section 5708) and the Code of Regulations (section 10348) both grant pretty broad authority to the WCJs to take care of business.

Furthermore, your humble blogger would be willing to wager a good amount that any award that did not allow the defense to engage in discovery, offer evidence, and make a rebuttal, would be running on the wrong side of both the California and the Federal constitutional guarantee of due process.

How can anyone claim that a defendant has been given due process when it cannot present witnesses?  And, of course, if an expert witness is not given an opportunity to examine the relevant evidence (in this case, the applicant), how can that expert’s testimony be relevant and admissible?  (Bear in mind, dear readers, that as per Labor Code section 5703(j) the testimony of vocational rehabilitation experts is to be made in the form of reports and not direct witness testimony).

In this case, it looks like the defense agreed to have the applicant examined only be telephone, but why should it?  Seeing the applicant in a face-to-face setting is a pretty good way to gauge honesty and credibility, and would tip of the voc-rehab expert to more questions to ask or to re-ask for purposes of consistency assessment.

Another question is this one – if you, as the defendant, were persuaded that the DFEC schedule should be rebutted and that the applicant is entitled to a smaller DFEC factor, can you still compel an evaluation?  Even if the applicant doesn’t want to go the Ogilvie route?  We’ve seen Almaraz/Guzman go the other way on a few cases, and perhaps Ogilvie could favor the defense as well.

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DIR Announces New TTD Rates

June 7th, 2013 No comments

A DIR “Newsline”  heralds the dawn of a new age – well, not really.  Starting with January 1, 2014, temporary total disability rates will go up less than one percent, setting the new minimum at $161.19 and the new maximum at $1,074.64 per week.

Under Labor Code section 4453(a)(10, TTD is based on the percentage of increase in the state average weekly wage increase.  So the good news is that California’s average weekly wages went up!

How do you plan to spend your extra 0.74% in wages?

Have a good weekend, folks!

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The Wait is Over – Toothless Interpreter Regulations are Here!

June 5th, 2013 No comments

At long last, dear readers, the mighty (in its clumsiness) and speedy (in the sense of a snail’s pace) reach of SB-863 has come to knock on the door of the interpreters.  All those injured workers who spent their entire careers speaking English to employers, co-workers, and customers, sustained injury in the form of not being able to speak said language for purposes of litigating their claims.

We’ve all seen this – an interpreter is necessary if settlement falls through, and no longer necessary once it’s time to sign the documents.  (Maybe next time the Defendant will know to give in to the applicant’s unreasonable demands!)

The Department of Industrial Relations has released proposed interpreter regulations for public comment (they’re in English, by the way, so you may need an interpreter to read them.  But how much does that cost?  If only there were regulations out there that set out how much an interpreter could charge for his or her services…)

Among other changes:

  1. Who can be qualified to provide interpreter services at hearings and depositions (section 9795.1.5); and
  2. Who can be qualified to provide interpreter services at medical appointments (section 9795.1.6).

If passed “as-is,” defendants will be able to get rid of a few interpreter liens based on qualifications.  But your humble blogger would like to see some more teeth given to common sense with respect to interpreter liens:

Section 9795.3, subsection (a) holds that “[f]ees for services performed by a certified or provisionally certified interpreter, upon request of an employee who does not proficiently speak or understand the English language, shall be paid for the following events:”

How about some more burden on the applicant to prove that he needs an interpreter?  Your humble blogger happens to know some people very near and dear to his heart that would take great offense at someone assuming they need an interpreter simply because they were born elsewhere.

Your humble blogger would suggest that the regulations include some sort of formal procedure by which an applicant must first prove that the services were necessary.

But, none the less, cheers to the DIR for moving forward with implementing the new legislation, even if it is six months later.

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Absent Proof of Intent to Self-Procure, No Recovery for Lien Claimants

June 3rd, 2013 No comments

Dark days, indeed, dear readers.  It just so happens that your humble blogger, in his cold, iron heart, has a pang of sympathy for the lien claimants.

Hold on, hold on! before you get to unsubscribing from the blog, burning my pictures in the streets in protest, and demanding that I return your subscription fee for all these years of your loyal readership (you get what you pay for, after all), hear me out.

Ponder, if you can, the case of Crispin Mendez-Correa v. Vevoda Dairy.  In that case, applicant self-procured medical treatment outside of a valid Medical Provider Network, and then the treatment provider came a-smilin’ with its bill.  The defendant naturally slammed the door in the lien claimant’s face and the matter proceeded before a workers’ compensation Judge.

The Workers’ Compensation Judge held that the defendant was not liable for the cost of the alleged medical treatment because of the MPN.  Accordingly, the WCJ put the lien claimant on the scent of the applicant, telling it to get its pound of flesh from the injured worker under Labor Code section 4605 (“Nothing contained in this chapter shall limit the ability of the employee to provide, at his or her own expense, a consulting physician or any attending physicians whom he or she desires.”)

Naturally, applicant became concerned – it’s one thing to play Scorched Earth and raise the costs for for the defense, tis another thing altogether to have to pay for such tactics oneself.

Well, upon his petition for reconsideration, the Workers’ Compensation Appeals Board decided that the date of the decision, May 13, 2013, shall henceforth be called “New St. Crispin’s Day,” and after a rousing and inspiring prelude, found, to some extent, both for the defendant and the applicant, although the meat of the holding appears to have been against the lien claimant for whom your humble blogger has some small amount of sympathy.

You see, the WCAB held that, because the lien claimant did not (or could not) prove that applicant intended to self-procure, section 4605 was not triggered.  At the same time, the defendant could not be held liable because of the valid MPN.  So, if the lien claimant cannot recover from the defendant and cannot recover from the applicant, it appears that the lien claimant cannot recover at all.

And here comes the most charming part of the opinion’s effect: lien claimants are repeat players, and know when there a self-insured employer or an insurance company has a valid MPN in place.  So, the lien claimant can risk going up against an MPN, or it can make the applicant sign a form acknowledging that the applicant is self-procuring.  However, if the applicant is knowingly self-procuring, as evidence by such a form or contract or note, then defendant is off the proverbial hook before the issue of an MPN is reached.

Buuuuuuuut… since no applicant is going to self-procure instead of treating for free within the MPN, the lien claimants can close their gold-plated, jewel encrusted, thieving, extorting, and workers’ compensation harassing doors.

Or, here’s another idea: let’s start treating liens like what they are, a lien on the recovery of the applicant.  Accordingly, when applicant settles a paper-cut claim for $50,000, let the cost of the $43 Neosporin and $65 Band-Aids for 35 consecutive visits come out of the recovery, as a lien would in any universe outside of workers’ compensation.

The long and the short of it is that when an injured worker is given access to an employer’s medical provider network, the non-MPN treators assist in the scorched earth and expert shopping of applicant’s attorney’s at their own peril.

And to think, if the lien claimant’s prices were reasonable to start, they would be part of the MPN and collecting on bills instead of litigating (and losing) them.

Sounds like being a lien claimant just got a lot tougher – oh how my heart bleeds for those poor folks!

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