Archive for November, 2013

Happy Turkey Day!

November 28th, 2013 No comments

Your humble blogger’s favorite of all holidays is upon us, dear readers!

Have a very happy Thanksgiving 2013, and may this be an opportunity for you to take time off and recognize all the things we truly have to be thankful for.

Your humble blogger,



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Just when you thought it was safe to get more liens dismissed…

November 27th, 2013 No comments

A class action has been filed in California’s Southern District Federal Court, seeking to challenge not just lien activation fees, but lien filing fees as well.

In the case of Dirk Kancilia, D.C. v. [a lot of California defendants],  the plaintiff is seeking Federal intervention to prevent not only the requirement to pay a lien activation fee of $100 prior to January 1, 2014, but also the lien filing fee of $150 as required by California Code of Regulations section 10207(d).  The complaint also seeks a reinstatement of liens previously dismissed for failure to pay activation fees, and a disgorgement and repayment of activation fees paid to date.

Jaws meme

The arguments made in the complaint are familiar to us all.  Evil insurance companies, unfairly denied bills, poor workers going without treatment, etc.  The complaint even goes so far as to describe California’s lien crisis: “Workers’ compensation insurance companies have routinely delayed resolution of medical service liens or have ignored or underpaid them.  This abuse has resulted in a huge volume of unresolved claims and has congested the workers’ compensation system.”

You see? It’s those evil insurance companies, and not the physicians that knowingly and intentionally provide services in the face of repeated objections based on MPNs, UR, IMR, etc.  It’s these same lien claimants that routinely bill well in excess of the fee schedule, again, knowingly and intentionally, without regard for the rights of defendants.

The world’s tiniest violins, both in this case and in the Angelotti Chiropractic  case, complaint to the federal judges about the horrors of California workers’ comp – how these poor medical providers have bills that need to be paid and that they are expected to shell out $150 per case and wait years and years for a recovery if any.

The simples solution, of course, is not to provide services for which you are not entitled to payment.  These guys are repeat players, and they know full well who has a valid MPN; they know full well what the fee schedule is; they know full well which body parts are accepted as industrial injuries and which are not; and they know full well how to fill out a Request for Authorization form.  They choose not to because that is the business model – provide “treatment” now and clog up the workers’ compensation system with liens after.

There’s a good chance we’ve seen the death of the lien activation fee with the Angelotti case.  Hopefully the lien filing fee will survive.

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Meat Grinder Injuries Do Not Fall Under the Power Press Exception

November 25th, 2013 No comments

Workers’ compensation is weird – I know.  It’s full of exceptions and loopholes and odd twists and turns.

For example, have you heard of the power press exception?  A power press, as defined by Labor Code section 4558(a)(4), is a material-forming machine that utilizes a die which is designed for use in the manufacture of other products.  If the employer knowingly removed or failed to install a point of operation guard on a power press, the injured worker (or his relatives) can seek damages at law (tort law), and not just in workers’ compensation.

So, in plain Monday-pre-coffee speak, what is a power press?  In Ceja v. J.R. Wood, Inc., the Court of Appeal relied on the Administrative Code (title 8, section 4188), noting that “die” was defined as “[t]he tooling used in a press for cutting or forming material.  An upper and a lower die make a complete set.”  In Ceja, a power saw was expressly excluded from the definition, as were all small hand tools.  Think Looney Tunes 

Recently, an unpublished Court of Appeal decision reviewed this law as well.  In Jose Herrera v. Unistar Food Processing, Inc., a worker sustained very serious injury after his gloved fist became stuck to a piece of frozen pork he was putting through a meat grinder, pulling his arm in and causing an amputation.

Mr. Herrera sought damages under tort law under the Power Press exception to the workers’ compensation system.  The employer moved for summary judgment, arguing that the meat grinder did not meet the requirements set out in Labor Code section 4558, and so Mr. Herrera was confined to the workers’ compensation system.  The trial Court agreed and granted the motion.

On appeal, Mr. Herrera argued that the meat grinder was, in fact, a power press because the blades of the meat grinder formed a lower and upper part, and formed the meat product (from frozen cubes into ground meat) to make other products.   The Court of Appeal disagreed – whatever the inner workings of the meat grinder, it failed to meet the definition of the Labor Code, as it was not manufacturing other products.

“What goes into the meat grinder comes out of the grinder, albeit in smaller pieces.  Cubed pork goes in, and ground pork comes out.  Thus, a meat grinder does not manufacture a different product.  It merely minces the meat.”

Now, bear in mind, dear readers, your humble blogger has nothing but sympathy for Mr. Herrera.  This poor gentleman has gone through an intense trauma and will likely be deprived of his livelihood for some time to come.  That being said, the purpose of the Workers’ Compensation system is to provide necessary benefits at a quick pace, although with a lower total pay-out in the end.

Frankly, the power press exception is really just a very specific type of serious and willful claim – with the employer knowingly and willfully exposing its employees to very serious harm by failing to install or keep on manufacturer provided safety guards.  It appears that this was simply an industrial accident.

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Total Perm. Disability Found When AME’s Apportionment Analysis Held Invalid

November 22nd, 2013 No comments

What is the most important 1% in permanent disability ratings? The percentage between 99 and 100.

Labor Code section 4659(b) holds that in cases of permanent total disability (100%), the injured worker becomes entitled to a life pension at his or her temporary total disability rate.

So, of course, in the case of Alvaro Aguila v. Fullmer Construction Co., the defense had all the incentive in the world to fight tooth-and-nail to get at least some apportionment when the Agreed Medical Evaluator found total permanent disability.

The facts are pretty simple: applicant, a 35-year-old carpenter, sustained an injury to his back, psyche, and diabetes.  The AME found that, while applicant was totally permanently disabled, some of that permanent disability should be apportioned to other causes.  Unfortunately, the AME’s opinions kept going back and forth – one report said no apportionment, then the other said 15%, then the third again said no apportionment, then the fourth again assigned 15% apportionment, but to different reasons.

At his deposition, the AME also seemed to think that apportionment was an issue of impairment rather than disability.

The WCAB, on applicant’s petition for reconsideration, ruled that the AME’s opinions with respect to apportionment were not substantial evidence.  Citing Escobedo v. Marshalls, the WCAB held that the AME failed to “disclose familiarity with the concepts of apportionment, describe in detail the exact nature of the apportionable disability, and set forth the basis for the opinion that factors other than the industrial injury at issue caused permanent disability.”

Now, bear in mind, dear readers, that this is not to be read to mean that an evaluating physician cannot change his opinion.  In fact, the sign of a good AME is that he or she will consider reports and arguments and not let pride get in the way.  On the other hand, this back and forth evidences a failure to read one’s own prior reports.

So, accordingly, long after the AME has cashed his checks from defendant, the defendant is now deprived the benefit of non-industrial apportionment, and thereby condemned to pay temporary total disability for the remained of applicant’s life.  Your humble blogger estimates applicant’s current age at 45, and with a life expectancy of 83-89 years, the defendant will be on the hook for a very long time.

Just to give you an idea of some of the numbers, let’s compare two, 2013 injuries with 85% permanent disability with 100% for a person who has a 45 year life expectancy and a TTD rate of $500 per week.

85% yields $195,242.50 in permanent disability benefits, and another $193.27 per week in pension, or a total of $517,375.27.  On the other hand, 100% yields a total of $1,170,000, or more than twice that amount.

Please note, dear readers, that your humble blogger wishes Mr. Aguila a full return of his health and a long life.  My dissatisfaction with the legal result of this case should not be read to mean a desire for Mr. Aguila, or any injured worker, to come to any harm.

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Treatment Disputes 32 Years Later…

November 20th, 2013 No comments

There are cases that close quickly.  There are cases that close after a lot of fighting.  There are cases that outlive lawyers’ and adjustors’ careers.  And then there is this case.

The matter is Jack Oday v. Wickes Lumber, where applicant sustained an injury to his back in 1979, and the matter was resolved by way of stipulation with open future medical treatment.  Some 32 years later, applicant had a new primary treating physician who was prescribing a laundry-list of treatment for a laundry-list of injuries and conditions, including “anemia, high blood pressure, symptoms related to non-industrial hip surgery, and arthritis in his back and hip, unrelated to his industrial injuries.”

The defendant obtained a supplemental report from the old PTP, who disagreed with the new PTP’s prescriptions and noted the endless other conditions completely unrelated to applicant’s 1979 injury and the resulting award for medical treatment.

The WCJ declined to order applicant to submit to a medical-legal evaluation, and also found the old PTP’s opinions to be not substantial evidence, given that there was no re-evaluation, just a review of 30-year-old medical reports and more recent ones.

Ordered to provide medical treatment, the defendant petitioned for reconsideration and the WCAB granted.

The reasoning is fairly simple: the applicant must submit to medical-legal evaluations upon a defendant’s request, and the workers’ compensation Judge should develop the record and have the primary treating physician clarify which treatment is for which condition.

Interestingly, though, the WCAB recommends that the parties utilize an Agreed Medical Evaluator for a medical-legal evaluation.  In practical application, this AME could only determine what conditions exist and whether they were caused by any industrial injury.

Presently, the issue is medical treatment, an as my dear readers will recall, Agreed Medical Evaluators can no longer weigh in on medical treatment (See Labor Code section 4062.2).  In short, the primary treating physician will have to specify which treatment is for which condition, and then run the gauntlet of Independent Medical Review.  Your humble blogger does not envy the IMR physician who will collect a flat fee to review 32 years of medical treatment records. Please note, the WCAB’s opinion is from May 28, 2013, and as this is a pre-1/1/13 injury, IMR would not have become mandatory for another month.

There was a dissenting opinion, however, reasoning that the defense should not receive the benefit of Reconsideration when it failed to follow proper procedure.  The dissent would have the defendant object to the new primary treating physician’s report and invoke the panel QME process.  The dissent would have also had the defendant use Utilization Review, although it is unclear why Utilization Review would be relied upon when there is an AOE/COE issue as to the body parts and conditions.

Now, bear in mind, dear readers, until your humble blogger had a chance to review the WCAB’s opinion in this case, I was actually inclined to side with the Applicant.  Hey, where did all my readers go?

For the six applicants’ attorneys that are still reading, I shall explain my otherwise unforgivable position.  Medical treatment is a continuing right for an injured worker under a stipulated award, and methods of medical treatment change.  Technology improves, new procedures are available, and old methods are sometimes proven to be unsafe or ineffective by today’s standards.

And, when you read the WCJ’s report, you really get the impression that the old medical evaluator is just some paper-pushing M.D. who is defending his opinions out of pride.

But, when you read the WCAB’s opinion, you get a very different picture.  You become aware of the fact that there were other injuries, that the old evaluator justified his position through a causation analysis, and that the new treating physician failed to justify his own.

In any case, perhaps this would be a good time for the parties to reach a settlement agreement as to future medical treatment and empty their respective filing cabinets from this one file.

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DWC Stops Collecting Lien Activation Fees

November 18th, 2013 No comments

Frequent readers of this humblest of blogs will know full well that I do not much care for lien claimants.  Regularly, this blog has cheered the efforts of Senate Bill 863 to curb liens, and to minimize or at least mitigate the damage their extortionate tactics wreak on California workers’ compensation.

It is a very common sight for the parties to resolve a claim without admitting liability, and then face liens ten or twenty times the settlement value from a swarm of repeat players.

SB-863 helped with this: lien claimants had to file activation fees for pre-1/1/13 liens, and filing fees for post 12/31/12 liens.  In fact, when lien claimants failed to pay their activation or filing fees by the time a lien hearing was set to start, they were automatically dismissed.

Several lien claimants invoked the power of the Federal Courts to stop this practice (at least, as it pertains to activation fees of $100), and recently, the Honorable George Wu, of the U.S. District Court, Central District of California, signed a preliminary injunction prohibiting California from collecting activation fees.

In fact, your humble blogger received an e-mail notice from the DWC just after four this past Friday, informing the folks of California Comp Land that lien activation fees would no longer be collected.

Judge Wu’s decision, granting several lien claimants’ motion for a preliminary injunction, has put a stop to this practice.  The plaintiffs claimed that the liens were vested property rights, and that SB-863 acted as a government taking, violated due process, and was a violation of the Equal Protection Clause of the 14th Amendment of the United States Constitution.

Judge Wu rejected the due process claim, noting that the lien claimants still have ample opportunity to litigate their liens and recover the lien activation fee.  He also rejected the takings claim, reasoning that the California Legislature cannot “take away” something that is a procedural creation of the California Legislature.  Lien Claimants did not have a farm that was taken away by SB-863, nor did the “gubmn’t come and tuk m’pig!”  Lien claimants derived their right from California’s workers’ compensation system, and that system has been amended.

Unfortunately for all of us non-lien claimants, the Equal Protection argument struck home.  Lien claimants argued that they were being treated differently than various health care service plans, group disability insurers, self-insured employee welfare benefit plans, etc., etc.  (See Labor Code section 4903.06(b)).  Reasoning that such discrimination between two non-protected classes required the government to show that its actions were rationally related to legitimate legislative goals.

Your humble blogger could talk for hours about constitutional law with great pleasure (please stop by for coffee sometime, I’ll talk your ear off!), but what matters to me as a workers’ compensation attorney and, presumably, to both applicant and defense community members, is the immediate effect this decision has on our world.

For applicants, the effect is clear: defendants now have less money to spend on you and your clients, and more exposure for admitting an injury.

As for us defendants, we will have to be prepared to fight out the liens on the merits, or lack thereof again.

In the meantime, will the activation fees paid be returned? Will the previously-dismissed liens be resurrected? Will the Workers’ Compensation Judges suspend all actions on all pre-1/1/13 liens until the resolution of the Federal case?

And, if any members of the Legislature are reading, perhaps we could do an emergency amendment to remove the lien filing fee exemption?

Stay tuned, dear readers, for when your humble blogger learns more, so shall you.

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Cal Sup. Crt. on Valdez: “Please See LC 4605. That is all.”

November 15th, 2013 No comments

The California Supreme Court has finally issued its opinion in the Valdez case.  The entire Supreme Court opinion can be summed up as follows: the Legislature has amended the law, applicable to all pending and future cases, such that reports obtained from treating physicians outside of a defendant’s Medical Provider Network are admissible, but cannot be the sole basis of an award.

If that language sounds familiar, it should, because it is lifted directly from Labor Code section 4605.

In short, the injured worker can provide reports to the Primary Treating Physician or the Panel Qualified Medical Evaluator to review, but a Judge can’t issue an award solely based on this non-MPN report.

That being said, here are some arguments to take with you and give your case an edge:

  1. The Court of Appeal, and now, the Supreme Court, have failed to address the WCAB En Banc ruling with respect to whether the defendant is liable for the costs of this non-MPN report.  Given the language of section 4605, it appears fairly certain that the defendant does not have to pay these bills.
  2. Because the Supreme Court relies on section 4605, which provides that the employee can get a consulting or attending physician “at his or her own expense” if the employee does not pay the bills, or if the physician starts sending the bills to the insurer/employer, the reports should be excluded as simply treating outside the MPN.

Recall, if you will, dear readers, the matter of Crispin Mendez-Correa v. Vevoda Dairy, where the WCAB held that Labor Code section 4605 requires a showing of the injured worker’s intent to self-procure medical treatment.  Although non-binding authority, it is on point, and if an injured worker seeks to introduce a non-MPN report into evidence, perhaps an objection is warranted unless he or she can show that, at the time of the consultation, he or she intended to pay for the treatment out-of-pocket (and not stick the defendant with the bill).

  1. Be very wary of the effect of the “sole basis” clause of section 4605.  The Legislature could not possibly be more vague in drafting such language, and it provides judges with ample lee-way in interpretation.  For example, can a WCJ reason that the biographical data recorded by the panel QME (age, weight, height, etc.) confirms the validity of the non-MPN “consulting physician” report?  When an award issues, just how much of the rational has to be based on the panel QME or the PTP?  Can a WCJ adopt the PQME’s apportionment reasoning and rely on the “consulting physician” for everything else?

    Your humble blogger does not have the answers (yet) but suspects that future panel decisions will clarify just how nice of a Trojan Horse the Legislative Greeks gave us.

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WCAB: Never Mind; 6th Edition AMA Guides NOT in Play

November 13th, 2013 No comments

It appears, dear readers, that in response to a post recently offered on this humblest of blogs, a frenzied mob stormed the Workers’ Compensation Appeals Board, tearing up separator sheets, burning AMA Guides, 6th Edition, copies in a bonfire while decrying heresy, and professing that the 5th Edition is the one, true method of rating permanent impairment.

In response to such spirited objection, or perhaps after further reflection, the WCAB has issued a new decision in the Frazier matter, rescinding the prior opinion and explaining, in clear-as-daylight terms, that no, the 6th Edition of the AMA Guides is NOT in play.

If you’re not the type of reader to re-read old posts, or you’re too exhausted from hump-day celebrations to click the link, allow this humble blogger to offer the following summary:

An AME found that two sections of the AMA 5th Edition describe applicant’s impairment, one with a 30% WPI, and one with a 20% WPI.  The AME found that the 20% was a better fit, but after reviewing the same section in the 6th Edition, which included a 24% WPI, the AME went with that section, reasoning that the 5th Edition was old and the new, 6th Edition, was much newer (2000 vs. 2007).

The WCAB, in the original opinion, declined to reverse the WCJ’s award based on the 6th Edition opinion, but then realized that they were effectively endorsing the use of the 6th Edition of the Guides, which was, of course, workers’ compensation heresy.  What is this new faith, this new doctrine, that intrudes upon the sacred text anointed by our rulers on Mount Olympus Sacramento?

Well, upon its own motion, the WCAB granted reconsideration, and in, in a split panel, reversed, instructing the WCJ to issue an award on the current record or develop the record further, but not to issue an award based on the 6th Edition.

The dissenting opinion argued that the WCJ reasonably awarded 24% WPI (44% Permanent Disability) and that the applicant could have, but chose not to, seek relief for the reduction of WPI from the original 30%.

Additionally, the dissent further makes the point that this entire opinion is on the WCAB’s own motion.  Neither party sought further guidance from the WCAB and appeared (grudgingly) content to let the sleeping dogs of litigation lay.

In any case, this issue is not done.  The 5th Edition is old enough for a Bar Mitzvah, at this point, and the research and statistics upon which that green tome is based may no longer be relevant.  Population change and the nature of industry may have prompted new numbers for impairment; medical treatment may have reduced the effects of injuries.

Furthermore, with all due respect to the WCAB, a panel opinion does not present binding authority upon a workers’ compensation Judge.  As your humble blogger has heard countless times to his disappointment, the WCJ can simply say “I acknowledge the precedent set by these panel opinions, and I am declining to follow them.”  This case can come up again and again, once someone invests the time to actually read the 6th Edition.

Our phones become obsolete fourteen times in thirteen years; these days, surely medical knowledge changes at least a bit.

But the Board is not the place for those changes – the Legislature is.  And once we’re done setting a price cap on copy service fees and taking away the ability of injured workers and defendants to settle supplemental job displacement benefit vouchers or agree on medical evaluators to determine issues of medical treatment, perhaps we can update the source of our impairment ratings.

For now, at least, the heresy of modern medical texts will not infect the land of the 5th Edition faithful.  Amen.

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Happy Veterans Day 2013!

November 11th, 2013 No comments

Hello, dear readers!

Your humble blogger wishes you and yours a happy Veterans Day!  If you, a friend, or family member served this great country please accept my most sincere thanks for your service.

Here’s to hoping you get to take today off, and if nothing else, celebrate your status as a Workers’ Compensation veteran.



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Should Electronic Production of Records be Mandatory?

November 8th, 2013 No comments

Once in a rare while, one of the parties in a workers’ compensation case are not happy with the primary treating physician’s decisions with respect to any host of issues.  Whether the parties go to an Agreed Medical Evaluator or a Panel Qualified Medical Evaluator, there’s typically a WHOLE lot of paper.

First, the defendant will flood applicant’s counsel with every scrap of paper subpoenaed, every page of every deposition transcript, all past awards, past-injury medical reports, etc.  Then, the defense will typically send that same giant stack of paper to the PQME.  (See California Code of Regulations section 35)

So, if once all legal documents were written by hand, and now we require all represented legal proceeding to go forward by type-print (does anyone still use a typewriter?), why can’t we move past that and require QMEs to accept electronic copies of documents?

After all, anyone who doesn’t care about all the trees that go into the paper-mill probably cares about all the money and time wasted on reproducing these records and shipping them over (not once, but at least twice – and that’s only if there is one QME and one applicant and no other defendants).

So, since we don’t hesitate to regulate almost every aspect of the QME process, from report contents to evaluation locations to days for a report, why not require QMEs to accept electronic versions of records?  If the QME really needs to, he or she can print them out.  Otherwise, just read them on the computer and safe yourself the filing cabinet space and the paper.

Additionally, by providing records via an electronic link (see, for example , the file sharing abilities of a Dropbox account), the other side can make sure that no records were sent to the QME that weren’t first sent to the other parties.

After all, the Bar and Supreme Court already require all lawyers to have e-mail addresses, and a (regularly ignored) Rule of Court requires a declaration that all filing were made on recycled paper.

Perhaps it’s time to make the default approach paperless, and simply place the burden of printing out and wasting paper on the individual QMEs and attorneys.

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