WCDefenseCA

Part of SB-863 was the reform to section 4603.2(b)(1), which imposed on “[a]ny provider of services provided pursuant to Section 4600” to submit its request for payment with an itemization of services … and a copy of … the prescription or referral from the primary treating physician.”

This was great idea – a bill processor could put the prescription and the bill side by side and refuse to pay for any medication not on the prescription.

About that… Governor Brown has signed into law Senate Bill 146, which gives pharmacies a pass.  No longer will pharmacies have to submit the prescription they filled with their bills, and those that had their bills denied in the past will have until March 31, 2014, to resubmit those bills.

Now, your humble blogger has to wonder, doesn’t a pharmacy need a prescription to give out the drugs? Or do they just have the pills sitting on the counter for anyone to pick up?

If you have the prescription when you hand out the meds… why not keep a copy in your file? And then, why not just produce it with your bill?

In any case, this is just one of many efforts we can expect to slowly chip away at the ground gained by SB-863.  The surprising thing for your humble blogger is that this came from the legislature – couldn’t you guys have figured this out while you were drafting SB-863 to begin with?

There were endless – ENDLESS – cases, opinions, factual scenarios, theories, revisions, etc. under the previous Labor Code section 4658(d).  What if the worker didn’t miss time? Do the 60 days run from receipt of the report or its issuance? If the employer knows it can’t offer work and advances the entire PD amount before the 60 days… does it pay a 15% bump?

One of the most reasonable results from the insanity that lead to SB-863 being signed into law was that someone at the table said “guys, I know we’re making stuff up as we go, but this 15% bump has got to go.”  And go it did.  The Labor Code has done away with the bump up or bump down, but instead, thanks to Labor Code section 4650(b)(2), no advances are due until there is an award if the employer has offered the employee a position that pays at least 85% of the wages and compensation paid at the time of injury (or the employee is working for someone else making as much or more as at the time of injury).

Note, dear readers, that the language here is distinct from the language of Labor Code section 4658(d), which requires the offer to be made “in the form and manner prescribed by the administrative director.”  So, perhaps no more silly form technicalities – I would submit to you, dear readers, that the Legislature is telling us that strict adherence to the provided form is no longer required?

On the other hand, please note that there is a form (10133.35), which should probably be used, but perhaps something as simple as the interactive process would suffice?  Regulations 10133.34 requires the use of Form 10133.35, but if you find yourself having made the offer but not used the form, perhaps this argument will save your defendant pelt from applicant’s counsel’s hunting-lodge wall?

And here’s another fun fact – because 4650 applies to all dates of injury, you could easily take advantage of both – secure a 15% drop in permanent disability and not have to make any advances because the offer was made.

I’m sure we’re all going to see cases that address this issue – was the form properly filled out? What if part of the form was missing? What if the injured worker claims he never received it?  What if the worker is working, but the employer/insurer can’t produce a signed proof of service for the offer? (A headache reminiscent of pre-SB-863 section 4658(d)).

So, your humble blogger suggests that the regulations should be interpreted as one method of making the “offer” contemplated by Labor code section 4650(b)(2), rather than the  ONLY method of making the offer, as the language in 4658(d) makes clear.

If this argument works for you, please let me know!

Star trek fans will recall the fact that on the Enterprise, a crewman (or woman) could order any meal, or really any object, and the replicator would instantly make it.  How many times have doctors (and patients) wished that they could just have whatever they needed appear in a flash of light.  Well, picture if you can, dear readers, the following:

Carl the carpenter loses a hand on the job.  Larry the asbestos taste-tester has lungs that are giving out.  Drake the professional bartender needs a new liver from drinking with customers on the job (as his boss encouraged him to do).  All three of these poor guys are sitting on a bench in a clinic, waiting for their appointment.

By the end of the day, they have each ended up in the recovery room following the surgical insertion of replacement organs – organs “printed” with a 3-d printer.  The wait list is now for operating rooms and surgeons, not organs.  The limits are now litigating causation, not the realm of the scientifically possible.

Imagine a fee schedule which lists the reimbursement allowed for a printed heart, lung, eye, liver, or hand.  That’s the future, and it looks to be getting closer.

Workers’ compensation is slow to pick up on changes in the outside world, primarily the market is not present here: the legislators decide what a gallon of milk costs, and a Judge decides what an hour of time is worth (in case you’re curious, ask around what applicants’ attorneys are allowed to charge for an hour of deposition time, and then ask around what the average defense attorney gets to bill by the hour).

But eventually, when this science fiction miracle becomes a reality, some things will have to change: amputations may become irrelevant, diseases of various organs won’t need to be cured but simply the organ will be replaced, and the labor code will need to keep up.

This tech is years away from being applied and in large enough numbers to make it worth-while.  But we in the workers’ comp community, especially on the defense side, need to be aware of this for the simple reason that effective treatment in this form may replace permanent disability impairment and the need for future treatment.

Think also what this will do to the industry of turning injured workers with dull or sharp pain into drug addicts – instead of doping the injured worker into Cracky McDopeAlot, what if we could replace his injured shoulder with a new one, fresh off the 3-d printer?  And, of course, we’re not talking about mechanical metal or plastic joints replacing once-living tissue, but living tissue replacing living tissue.

Just keep your eyes on the horizon, dear readers, science may find a way to put a good amount of parasite-snake-oil-salesman-doctors out of work, and workers back to work.

Live Long and Prosper!

Hello dear readers!

As another week draws to a close, I bring you glad tidings from our dear friends at the Department of Workers’ Compensation, which seeks public comments for the Medical Provider Network regulations.

You all know the drill by now – attend the hearing on 9/30/13 at 10:00 a.m. or get your comments in before 5 p.m. in writing.

At this point, the draft of the regulations can be reviewed here.

Do you have suggestions for how the MPN system can be improved?  I have one:

Presently, regulation section 9769.5(b) says that an “MPN must have a primary treating physician and a hospital for emergency health care services … within 30 minutes or 15 miles of each covered employee’s residence or workplace.”

As my loyal and learned readers will recall, in the matter of Miguel Robles v. Evolution Fresh Inc., the Workers’ Compensation Appeals Board held that this regulation is in conflict with Labor Code section 4616(a)(1), which requires the MPN to offer treating physicians within the geographic area where the employees are employed.

Because we’ve already had our reform madness season, and can wait up to five more years for the next one, I suggest the regulations be amended to reflect that the MPN must have PTPs 30 minutes or 15 miles of each employee’s workplace (and remove the residence provision).

Why? Because so long as this regulation is on the books, the MPNs are not put on notice of this theory of attack.  By getting rid of this potential conflict, the MPNs can adjust accordingly and recruit more doctors in the areas where the employees are working.

That’s your humble bloggers suggestion – what’s yours?

Have a good weekend!

Do the names Anton Buitendag or Yolandi Kohrumel sound familiar? Perhaps they should.  Almost every defense attorney and adjuster has a Buitendag or Kohrumel in their history.  Both were recently sentenced to jail terms for an insurance fraud scam that cost insurers (you can read that as consumers, by the way, because they will ultimately pay the price for this) $1.5 million.

Here’s the adventure, for background: Kohrumel has a box fall on her toe.  She undergoes surgery, but says she can’t use the crutches she’s given, so she gets a wheel chair.  The wheel chair then gives her carpal tunnel syndrome, so she got an electric wheelchair.  She also claimed her feet continued to be hypersensitive and that she was experiencing complex regional pain syndrome, depression, and anxiety (bring on the pills!)

After her temporary disability benefits dried up, she claimed she needed round-the-clock care, which was provided by her husband and then her father (how much does in home care with 8 hours regular pay and 16 hours overtime get you?)

But the fun didn’t stop there.  Kohrumel demanded a larger apartment (her two-bedroom was too small for her wheel chair), and Buitendag demanded to be paid even though he had no right to work in the United States (this argument failed previously in another case where the in-home-care/spouse was an illegal alien).

So here’s where the party ended: the insurance company hired movers to help Kohrumel move to her wheelchair accessible mansion but the lazy bums weren’t working fast enough, so Kohrumel summoned her super-human strength to get out of her wheelchair and move heavy boxes around.  “Gee, that’s odd…”

Now that we’re in the age of smartphones, everyone is a journalist, so the movers then videotaped Kohrumel showing the movers how it’s done.

In the investigation that followed 20 boxes were recovered from her garage with unused prescription medication.

In case you missed it… this all started with a broken toe.  But why would anyone be cynical about workers’ comp?

A riddle for you, my dear readers… Santa Claus, the Easter Bunny, and an injured worker who actually wants to use (instead of settle) his or her job displacement voucher are all walking down the street.  Which one of them makes it to the corner first?

About ninety-nine times out of one hundred, the answer is none, because all three are figments of the workers’ compensation system’s imagination.  But, that one time, there is actually a worker that wants to get retrained and go back to work.

Now, this blog is knowingly (and involuntarily) a home for cynicism.  Life in the workers’ comp swamp does not make one cheerful or optimistic about humanity, doctors, lawyers, or “gubmn’t,” state or federal (yes, CMS, I’m looking at you and your settlement-killing interference).  However that rare case does come up occasionally – but so rarely that, often enough, we’re all dumbfounded as to what to do.

If you’ve got an injured worker that wants to use the voucher instead of cashing it out, please add some logs to the little fire that warms this humble blogger’s heart and encourage him or her to do so.  Such an approach can quickly turn a victim of California workers’ compensation into a person moving on with his or her life, and less likely to enter the comp system yet again.

Direct them to the Bureau for Private Postsecondary Education’s website and have them search for an approved school in the field they are seeking to enter.  And don’t be stingy with the e-mails and the phone calls.

The intent of the voucher is noble and proper – it helps facilitate retraining and education so that a worker can enter a new field, perhaps one which does not require the violation of his or her work restrictions.

Here’s the problem: if you are an applicant’s attorney and you encourage your client to use the voucher, you get nothing.  If you encourage your client to cash it out at half value and spend the money on throwing him or herself a pity party, you get a cut of the lump sum which includes the voucher money.

Now dear readers, before you rise up as one and proclaim your humble blogger king with a mandate to reform workers’ compensation and make this blog mandatory reading for everyone (just an idea folks… think it over) there is no easy solution to this problem.

Workers are different, and so are defendants.  The incentive system in workers’ compensation often works into a conflict – some workers want to get better, some want to cash in on the “blue collar lotto”, some attorneys want to cash out, some want to see their clients taken care of before they get paid (you humble blogger personally knows a couple of applicants’ attorneys like this), some adjusters want to close the file as soon as possible, while some want to close it out for less money (even if it means keeping the file open longer).

Perhaps we should attempt another attorney fee schedule? For example, allowing the applicant’s attorney to take an additional percentage out of the permanent disability benefits for every $100 used as a voucher?  Since the client’s well-being is not a primary concern, perhaps some money on the table will do the trick?

It is well known that your humble blogger does not like to post cases in which the applicant is victorious and the defendant suffers defeat.  But, if this post serves to lull applicants’ attorneys into a false sense of security, or to help a defendant avoid relying on similar facts to proceed to trial, then your humble blogger is happy to do his part to make the world slightly more safe for employers.  To the seven applicants’ attorneys that read this blog – it’s not a false sense of security at all, go ahead and lower your guard…

The case I bring to you is that of Timothy Sabedra v. Magic Messenger, Inc., which was recently denied review by the Court of Appeal.  The attempted magic trick was to turn employee-truck drivers into independent contractors.  But a white rabbit went into the hat, and the same white rabbit came out.

The case essentially turned on the primary issue of whether the applicant was an independent contractor or an employee.

Applicant worked as a truck driver for Magic Messenger.  He signed an independent contractor agreement, provided his own truck and insurance, and paid for all maintenance on the truck.  He was paid a portion of the invoices he issued on his own letterhead, although the invoices were made payable to Magic Messenger.  On the other hand, he wore Magic Messenger’s logos and uniforms, and there was dispute as to whether he worked for Magic Messenger exclusively.

Interestingly, there was testimony from the defense to the effect that they recruited drivers with 24-26 foot trucks, and that Magic Messenger had no such trucks of its own.

The Workers’ Compensation Judge found applicant to be an independent contractor, but the Workers’ Compensation Appeals Board reversed.

Reviewing the record, the WCAB found that applicant was under such control of the defendant, so as to negate any claim of independent contractor status.  Of particular importance was applicant’s subjective belief that he could neither reject assignments nor conduct his own business in addition to the tasks set out by Magic Messenger.

But wait a minute – the WCAB has held that the subjective mental state of an injured worker does not affect the objective facts.  After all, remember the jail-house case?  The fact that the inmate in the Espinoza case wanted to work did not change the fact that he was a compelled worker and not entitled to workers’ compensation coverage.

The WCAB has held before that you can’t blatantly contract out of workers’ comp. this is by no means a clear-cut case.  A lot of the factors here were in favor of an independent contractor arrangement, and the thrust of applicant’s position was that he believed he couldn’t refuse assignments because he heard rumors he would be punished (mind you, he didn’t offer any witnesses or instances, but just his own gossip).

The WCJ was on the ground and watched the witnesses testify, and, in your humble blogger’s most humble of humble opinions, the WCJ should have received the deference of the WCAB on this one.

Now, here’s an interesting though – what if, as a condition of employment, Magic Messenger required all its drivers to get workers’ compensation insurance for themselves?  Just something to consider for all the employers out there looking to avoid “employing” every independent contractor they hire.

Your humble blogger is reluctant to find blame with grown men and women who have a tender spot in their heart for the Easter Bunny, or a secret desire for a particularly generous visit from Santa Claus.  But your humble blogger finds it harder and harder to find folks that have a sincere belief that the California workers’ compensation system does not expose employers, insurers, and injured workers to some horrible, horrible consequences.

A Superior Court Judge recently unsealed a complaint making some pretty serious allegations, including the fact that a large group of hospitals, distributors, marketers, surgeons, chiropractors and other evil-doers have been manipulating, lying, coercing, etc. to get injured workers under the knife and needlessly operated on.  But what the procedures lacked in necessity, they compensated for in permanent consequences and expenses.  They have used counterfeit screws and rods, “runners, cappers and steerers,” and needless surgery prescription after surgery prescription to get injured workers to undergo operations that left them maimed and crippled.

Insurers and employers are forced to pay for these operations, injured workers undergo them and have to life with the permanent effects and… these conspirators enjoy restful nights on beds made of money.

Some of the defendants named in the complaint include:

Tri-City Regional Medical Center; Pacific Hospital of Long Beach; Riverside Community Hospital; St. Bernardine Medcial Center; Spinal Solutions LLC; International Implants, LLC; Comprehensive Intra-Operative Services, Inc.; Summit Medical Equipment; Platinum Medical Group; and the list goes on…

If you have a lien claim or even a medical bill from these facilities, perhaps it’s best to see where this case goes before sending a check.

Your humble blogger also has this thought to share with you: where are the lawyers?  Specifically, where are the applicants’ attorneys that flood the various Workers’ Compensation Appeals Board venues with their bleeding hearts and the plights of their clients.  Where are they when their clients are being pressured into undergoing an operation that will inflate their permanent disability rating (and, coincidentally, the attorney’s fee) but bring disaster to their prospects of future employment or even basic quality of life?

The applicants’ attorneys who have been around the block a time or two know what their clients are going in for, but because your garden-variety AA won’t meet with a client until the date of the Mandatory Settlement Conference, he won’t provide any advice about what’s really going to happen to Joe Schmoe after the knife hits the spine.

It’s stories like these that make your humble blogger hope against all hope that no family member or loved one ever has the misfortune of entering the workers’ compensation system.

Tigran “Tony” Aklyan, of Van Nuys, California, was recently sentenced to 2 years in prison, 3 years of supervised release, and ordered to pay over $650,000 in restitution for his part in a conspiracy to defraud Medicare in a durable medical equipment scheme involving several clinics and fake prescriptions.

The San Gabriel based Las Tunas Medical Equipment would pay for fake prescriptions and then submit the bills to Medicare, charging over $900,000 and receiving over $650,000 over a few years.

Did you receive any bills from Las Tunas Medical Equipment?  Or how about one of the named clinics, Multiple Trading, Inc., doing business as Advanced Medical Clinic?

It’s not that far a jump to think that if a fraudulent outfit like this is submitting fake bills to Medicare for wheelchairs and diagnostic tests, it can do the same for workers’ comp insurers.  And it can take several forms too: overbilling can be dealt with by looking at bill review, but what about billing for services never provided?  It’s not every day that the injured worker will sit down with the adjuster and highlight all the services billed that the worker did not receive.

The complaint also generally refers to several medical clinics located on Rampart Boulevard and on Vermont Avenue in Los Angeles as co-conspirators known to the Grand Jury.

Have you had any dealings with Tony the Tigran or Las Tunas?  Or perhaps from Advanced Medical Clinic?

Do you think Batman has workers’ compensation insurance?  What about Bruce Wayne?  If Bruce is at an event promoting Wayne Enterprises, and jumps into action to fight crime, would Batman’s policy cover the resulting injury or Wayne Enterprises’?

I direct your attention to the recent writ denied case of Roy Ceja v. City of Los Angeles, in which an off-duty police officer sought benefits from the City of Los Angeles for injuries sustained while restraining a suspected criminal while the officer was moonlighting as event security for Live Nation (insured by New Hampsire Insurance Co.)

The workers’ compensation Judge found that the injuries were sustained in the course of Officer Ceja’s activities as a police officer and not a private security employee, because the nature of the duties trumped the time and place of the events.

Here are the facts:  Ceja was employed as a security employee during a live performance put on by Live Nation.  During his shift, he followed a patron who had been previously removed but then returned to threaten some of the Live Nation personnel with a knife.  Ceja identified himself as LAPD and arrested the patron.  During the handcuffing, Ceja accidentally shot himself! (EAMS reflects the injured body part was the hands and/or fingers.)

It doesn’t matter that he was at the Live Nation venue, or that it was during his shift, or that his duties to secure the Live Nation event overlapped with his duties as an off-duty police officer.  When Bruce Wayne puts on the mask and switched to the lifetime-smoker-angry-growl voice, he becomes Batman, regardless of what else he was doing at the time or where he was.

The Judge reasoned that, Officer Ceja’s injury was sustained while off the premises (remember, he followed the patron after he left the event); Ceja identified himself as LAPD; and the actions were to protect the general public.  Finally, LAPD had conducted an investigation and paid Ceja from the time of the injury, through the time at the hospital and the interview with LAPD.

Could such reasoning be applied to non-peace officer occupations?  Imagine if Jill works for Widget Corp managing its online presence, responding to “tweets” and Facebook postings for the company.  While crossing the street and engaged in the service of another employer, she takes out her iPhone and replies to a “tweet” aimed at @widgetcorp, only be get hit by a car… is widgetcorp paying her benefits or the other employer?  What if the other employer is paying her by task and not by the hour, and she is on salary for Widget Corp?

Overlaping duties and multiple employment is a tricky issue, but the guiding light is usually shining from the basics: arising out of and in the course of employment.  Live Nation did not have any duty to protect the public, but only its patrons – those attending the performance.  Once the Sir Stabby Mcknife-a-lot let the premises, he was more of a danger to the public than to the concert attendants.

In any case, WCDefenseCA hopes that Officer Ceja has made a full recovery and continues to his brave and diligent service of the community.