WCDefenseCA

Be wary of knee-jerk reactions, dear readers.  Often enough, a party receiving an adverse ruling by a workers’ compensation Judge will immediately rush to file a petition for reconsideration or removal.  Don’t – weigh the options first!

The remedies of removal and reconsideration are considered by all parties, including applicants’ attorneys, defense attorneys, and the defendants themselves – whether self-insured employer or an insurer.

But, sometimes there’s really no point, and good counsel means going over the reasons for the action as well as the likelihood of success.  If the goal is wheel spinning, then you’re doing something wrong.

In filing a petition for removal or reconsideration, it is VITAL that one follows the rules laid out by the WCAB.  The commission is currently sporting 2 vacant seats, and if you look at any workers’ compensation lawyer’s library, you’ll see that the Lexis CCC reporter tomes have grown exponentially from the first volume in 1936 to the 64^th in 1999.

Accordingly, even meritorious cases might be tossed aside for failure to follow the proper rules to allow the commissioners to address the flood of petitions.

In one recent case, Cheryl McMillin v. Monsanto Company, the WCJ, in his report and recommendation, pointed out two defects in the Petition for Reconsideration, and this serves as a wonderful opportunity to highlight these rules as a reminder to all.

By way of background, the defense obtained 3 dvds or 11 days of surveillance of the injured worker engaged in various activities including gardening.  However, these DVDs were produced to the applicant’s attorney nearly six months after being received by the defense attorney, despite repeated letters requesting all sub rosa video be produced.  Additionally, the QME appeared to be aware that the applicant engaged in these activities (as per the WCJ’s report), because the applicant had told him about them.  She further testified (consistently) at trial to engaging in light gardening and short driving trips.

The WCJ, in his report, highlighted two procedural defects with the petition for reconsideration.  The first was that Rule 10842(a): it is not enough to simply file for reconsideration and make legal arguments, the petitioner must make specific reference to the record and the exhibits.  To that end, it is important to diligently make a clear record at trial and to vocally (and sometime repeatedly) make objections known.

Rule 10842 also provides some helpful examples to how to cite to the specific record, and practitioners would do well to review these examples prior to drafting the petition.

Additionally, when alleging newly discovered evidence or fraud, Rule 10856 requires a detailed offer of proof as to the specifics involved.  It is, of course, very tempting to play one’s cards close to the chest and try to keep an element of surprise.  It’s almost romantic and charming in its mystique – “grant this petition, oh ye commissioners, and I will dazzle you with my powers in hearings to come…”

Rule 10856 requires the names of witnesses to be produced, a summary of the testimony to be elicited, a description of any documents to be offered, the effect the evidence will have on the record, and, with regard to newly discovered evidence, why the evidence could not be produced prior to the submission of the case.

Now, bear in mind, a lot of times this is pretty easy to do – if the injured worker says she can’t pick up more than 10 pounds, and, after the trial, she thinks she’s home free and participates in a weightlifting competition, then you probably couldn’t obtain video of the events before they happened.

The petition also apparently cited an unpublished decision.

Let this be a cautionary tale for all of us that zealous advocacy must be tempered with due respect and regard for rules and procedures, for the applicants’ bar as well as the defense.

Supplemental Job Displacement Benefit Voucher forms for post 1-1-13 injuries are available online now.

So, a few friendly reminders about SJDB vouchers in our post-SB-863 world:

1. If you’re looking for a place that is on the “approved” list for the voucher, check out this blog post or just have the applicants visit the Bureau for Private Postsecondary Education’s website and have them search for an approved school

2. The benefit cannot be settled, as per Labor Code section 4658.7(g).  Now, the language specifically states that “settlement … shall not be permitted.”  However, if the applicant and the defendant agree, who is to interfere, right? WRONG.  You don’t want to be the test case that held the settlement term unenforceable and required you to still provide the voucher after attempting to “settle” it.
3. Unlike your humble blogger’s good looks and charming wit, these vouchers have an expiration date.  4658.7(f) holds that the voucher expires two years after it is issued or five years after the date of injury, whichever is later.  In other words, if you know that the applicant is going to be entitled to a voucher, issue earlier rather than later, so that it expires as soon as possible (why waste $6000?).
4. The deadline for issuing the voucher is 20 days after the expiration of the period to make an offer of regular, modified, or alternative work, or 80 days after receipt of a report reflecting the applicant is P&S as to all claimed injuries.  But, as discussed above, if you know there’s no offer available, issue the voucher ASAP so it can expire ASAP/

And, as always, remember that the applicant might still be entitled to the voucher unless you complied with section 4658.7(b), requiring the employer to make an offer of regular, modified, or alternative work as defined by section 4658.1 no later than 60 days after receiving the first report indicating all claimed conditions are P&S.

Now, unlike 4658(d) which required the offer of regular/alternative/modified work be made “in the form and manner prescribed by the administrative director” one could make an argument that for post 1/1/13 injuries, Form 10133.35 is permissive rather than mandatory.  But, again, do you really want to find out?

Accordingly, you should probably use the form even if the employee has returned to work after a verbal offer, and even if you have performed the interactive process.  It does one no harm to fill that form out, and it also does you a whole lot of good (no voucher liability; no need for advances until there is an award).

If this issue does come up, the odds are high that a reasonable WCJ will look at this and find that if the worker returned to work, and is still working (or worked for 12 months), no voucher is owed.  However, if the form is properly filled out and served on the injured worker, that’s one issue you probably won’t have to worry about, let alone provide additional reserves.

On occasion, your humble blogger feels himself an advocate for injured workers.  Yes, yes, laugh it up, but in all seriousness, I’m very sympathetic to workers that have suffered actual injuries while doing their jobs.  I’ve been very fortunate that my clients have bent over backwards to make sure workers actually hurt in the line of duty get the treatment and benefits they need.

So, once in a while, your humble blogger finds himself in a position where he actually takes the side of the injured worker.  In this particular case, however, that position is aligned with the worker against the applicant’s attorney.

Consider the case of Ramona Bolyard v. Sterling Heights and Care West Insurance.  Ms. Bolyard retained an attorney, but subsequently dismissed him and proceeded with the case in pro per.  The results weren’t that great, and she was awarded future medical treatment but no permanent disability benefits.

Subsequently, she agreed to resolve her claim for future medical treatment for the tidy sum of $10,000.  Everybody’s happy, right?  No.

After being served with a copy of the C&R, her former attorney came riding in demanding an attorney fee.  For what?  For a portion of the $10,000 of course!

Now, Ms. Bolyard tried her best in pro per, and she ended up with nothing but future medical treatment.  She then negotiated the future medical treatment settlement on her own, so why should she have to pay anything to an attorney she dismissed before the work was done?

Well, her attorney did file a lien claim after being dismissed, but the WCJ recommended against reconsideration because the work was not done by her attorney – the only source of a potential attorney fee was from funds negotiated by Ms. Bolyard herself.

The WCAB granted reconsideration, but simply held that the lien of the attorney must be addressed.  It also held that if there was a finding that the lien claim must be paid, and the $10,000 was already paid to Ms. Bolyard, the defendant might be responsible.

So, what should defendants do in such cases?  Well, the best approach is to have the C&R reflect that the lien of the applicant’s attorney is to be paid, adjusted, or litigated by the applicant.  This may seem like a harsh approach, shifting more litigation burden on an unrepresented applicant, but it would probably be the most effective: the injured worker is the best witness for justifying a disallowed attorney fee.

In cases where there is a former attorney and a new attorney, the language should reflect that the lien of the former attorney is to be paid, adjusted, or litigated by the current attorney.  This takes care of the application mills down south that do intake, file an application, and then sub out, laying claim to an attorney fee while letting the next attorney do all the heavy lifting.

And, if you’re ever curious about what fantastic service looks like from the applicant’s bar, drop by the waiting room of any WCAB board, where you will see applicants’ attorneys meeting their clients for the first time on the date of a hearing, calling their names out blindly.

Your humble blogger feels compelled to report that, despite the above-mentioned stereotype, there are a few applicants’ attorneys that actually put in decent time: they meet with their clients regularly, pay attention to their lives as well as their cases and how the two interact, and provide quality service and zealous advocacy.  Sadly, this is not the business model of many AA firms, and results in a net loss for injured workers and defendants.

Ok, dear readers, are you ready for another crackpot argument?  Are you willing to risk being laughed out of court, sanctioned, exiled, and sent to bed without your supper?  Your humble blogger is aware of this argument being tried all of one time, and succeeding one time less than that.

So, here’s the set-up.  Opposing counsel has engaged in any form of ex parte communication: this could be inadvertent, ex parte communication in the classical sense, or ex parte communication only because the Labor Code says so – in that opposing counsel failed to serve you 20 days prior to providing records or reports to the panel QME (or AME).

Well, the remedies are laid out in Labor Code section 4062.3 – sanctions, penalties, attorney fees, and a new panel (or new PQME).  But here’s the implied remedy that doesn’t get spelled out and hasn’t (to your humble blogger’s knowledge) been taken up on any level of appeal: the aggrieved party should get to select a new panel specialty.

…

I commend you brave souls that have weathered the blasphemy above and the sacrilege to follow.  It’s unheard of, it’s unthinkable, it’s a crackpot idea at best.  Why should the party aggrieved by the ex parte communication get to choose a new panel specialty?

Well, here’s what your humble blogger thinks should guide the legal reasoning:  Labor Code section 4062.3(g) holds that “the aggrieved party may … seek a new evaluation from another qualified medical evaluator to be selected according to … Section 4062.2.”  Section 35(k) also holds that “the Medical Director shall provide the aggrieved party with a new panel in which to select a new QME.”

So, you might ask, as you sharpen your pitch fork and light your torch, how does that entitle the aggrieved party to select a new panel specialty?  If the applicant beat us to the punch and selected a chiro or pain management panel, how does this translate to a sudden spine or ortho panel specialty?

Well, take a glance at the second-to-last sentence of Section 4062.2(b): “[t]he party submitting the request shall designate the specialty of the medical evaluator…”  If one party breaks the rules, the other party gets to submit a request for a new panel.  And the party submitting the request for a new panel shall designate the specialty.

You still have to prove that you’re the aggrieved party, and you still have to get over the non-binding trial-level precedent this blogger is aware of: 0/1.

So, anyone out there ready to give this a shot?  Anyone out there had success with this?  Leave a comment and let me know.

Welcome back, dear readers!  As your humble blogger slaved away, chained to his desk, this Presidents’ Day Weekend, I was most comforted to see my emails being returned and phone calls being answered.  After all, the world of workers’ compensation does not rest, so why should we?

The DWC has released proposed regulations that would establish a fee schedule for copy services.  Now, as you may recall, this blog had the pleasure of covering this topic back in October, although many figures greeted this idea with considerable skepticism and displeasure.

The proposed regulations are actually pretty good, if you ask me (which I can only assume you would because you’re visiting this blog…).  Some gems from the proposed regulations include:

1. Barring bills for records obtained previously from the same source;
2. Barring bills for summaries, tabulations, or indexing;
3. Barring payment for copies voluntarily provided to the injured worker or his or her attorney within thirty days of a request;
4. Microfilm, and x-rays are to be paid for by the “party requiring them.”

As previously discussed, the fee for the first 500 pages would be a flat $180, with 20 cents a page after that up to $425.  Each additional set of copies ordered within 30 days of the first would be a flat $40, or $5 for “electronic” production (presumably by CD or download link).

Now, here are a couple of your humble blogger’s thoughts on the matter, since it appears that now is the time to make suggestions:

1. Before a copy service submits a bill for obtaining records or making copies for documents in the possession of the employer and/or insurer, the employee should first have to submit a written request for such records, to allow the employer to voluntarily produce the documents.  Bills for copy services will only be compensable if the subpoena is issued 30 days after the request was served.

   That way, the copy services will insist on the informal document request prior to accepting the assignment as the only way to get paid.  (See Section 9982(c)(1).)

1. The language of section 9982(e) currently holds that the costs of microfilm, x-rays, and scans are to be borne “by the party requiring them.”  Now, bear in mind, if the language stands, then your humble blogger intends to forward every copy service bill for “microfilm, x-rays, and scans” to the QME that “required” them for his or her evaluation.

   Instead, the language should reflect that the party making submitting the order to the copy service for prints of microfilm, X-ray films, and scans will bear the related expense.

What do you think, dear readers?  Do we need the “gubmn’t” to come in here and micromanage our MacroPro?  Or is it about time that someone reined in all those pirates of the Xerox machines (“Arrrrrrrr you done with the copy machine yet?”)  Shoot your humble blogger an e-mail or leave a comment.

There’s some talk online of how horrible it is to have a litigated case – CWCI has a study out that would have you believe the presence of an applicant’s attorney will dramatically inflate a workers’ compensation claim’s cost.

As summarized by Business Insurance online, claims with represented employees have (on average) an extra $24k in temporary disability benefits, an extra $41k I permanent disability benefits, higher medical treatment costs, and longer closing times.

Before someone panics and starts trying to scare, threaten, or bribe an injured worker away from retaining an attorney, please recall: causation and correlation are not the same thing.  Much like caramel apples and caramel onions, they make look like the same thing, but the result from biting one is very different.

The presence of an attorney might not drive up the costs of a case, but, instead, might be caused by a more complex case.  Attorney or no, more complex cases, with more serious injuries, will (1) require more time off work, and thus more TTD; (2) more medical treatment, so a larger medical bill and slower-approaching P&S date; and (3) higher permanent disability.

As my more regular readers will recall, I am no particular fan of applicants’ attorneys.  They can make life harder sometimes, and some of them don’t have many nice things to say when cases don’t go their way.  That being said, your humble blogger is an even smaller fan of unrepresented applicants sending him interrogatories, citations to the Federal Rules of Civil Procedure, or any other documents wholly irrelevant to the practice of workers’ compensation.

The right applicants’ attorney can make a case go smoothly and swiftly towards resolution, and can exercise the sort of applicant control that is often impossible for an adjuster or defense attorney.

What this analysis actually shows is that workers who sustain very serious injuries cost insurers and self-insured employers more, and tend to attract the services of an applicant’s attorney.  How would you like to have to keep a case open because the injured worker thinks he’s entitled to $1,000,000?  Do you want to have to explain (and re-explain) that there are no punitive damages in workers’ comp?

So let’s all ease off the panic button, and stick with the basics:

1. Treat the injured worker fairly, and provide all benefits to which he or she is entitled;
2. Be honest with the injured worker, and don’t take advantage of the fact that you’re a repeat player and this is his or her first (and hopefully only time) in the workers’ comp system;
3. Remind the injured worker that you’ve been honest, helpful, and have quickly provided all benefits, and that if he or she gets an attorney, they will just end up paying a big piece of the benefits they were already getting, and that you’d be forced to refer the case to a cold, heartless, and overly aggressive defense attorney.

An interesting thing happened over the weekend.  A neighbor knocked on your humble blogger’s door and invited me to a pot-luck later that evening.  As I was telling him that I have to check my calendar, the neighbor proceeded to enter my home and start helping himself to my fridge and food.  I looked at him shocked, and he said, “What? Haven’t you ever been to a pot-luck?”

Now, if he would have limited himself to the fruit in the fruit bowl, I would have written that off as basic host duties.  But going into my fridge?  Tsk. Tsk. Tsk.  Even the Labor Code, as broken as it is, has enough sense to prevent such behavior.  Haven’t you heard of the recent Kim case?  Good thing you read this blog…

As well all know, the defendant has 90 days from notice of injury to deny or accept it while it conducts an investigation (See Labor Code section 5402).  However, during that investigation period, the defendant is still on the hook for medical treatment, up to $10,000.  (See Labor Code section 5402(c)).

But, does the applicant have to treat within the MPN during this 90-day pre-denial/acceptance period?

A recent “significant panel decision,” Eun Jae Kim v. B.C.D. Tofu House, Inc., addressed this very point.

Applicant filed an application on September 9, 2013, and was provided with an MPN information package.  There was a delay notice sent on September 30, 2013, and defendant selected an MPN physician was selected to make an initial evaluation.

At an expedited hearing, set in response to defendant’s Declaration of Readiness to Proceed to Expedited Hearing, the defense sought an order requiring the applicant to treat within the MPN and absolving the defense of any liability for the non-MPN physician bills.

However, the matter was taken off calendar because this issue was not one of the four listed in California Code of Regulations section 10252, because the injury had not yet been accepted and was still in the 90-day waiting period.  In short, the WCJ held that an expedited hearing was inappropriate while the case was still within the 90-day investigation period of Labor Code section 5402.

Filing for removal, the defendant argued that it had the right to use the expedited hearing procedures to force an applicant into the medical provider network.  Although it ultimately dismissed the case as moot, the WCAB agreed.

Labor Code section 5502(b)(2), amended as part of SB-863, specifically allowed an expedited hearing to be set on the issue of “[w]hether the injured employee is required to obtain treatment within a medical provider network.”  Accordingly, any restrictions section 10252 purports to place on section 5502(b)(2) would thereby be invalid, as the Labor Code trumps regulations, every time!

So, what’s the take-away from this?  During the 90-day delay period, the employer can still have medical control AND can use the expedited hearing calendar to force the employee into the MPN.

Now, bear in mind, the employee has a really easy way to get around this: actually self-procure.  But, as discussed in Valdez, the employee needs to intend to self-procure for this to be self-procured treatment.  So, for example, the employee needs to pay immediately, or set up a payment plan.  If the employee just says “I want to self-procure, now send the bills to my employer” that’s not self-procuring, and Valdez would (presumably) render these reports inadmissible and the services non-billable to a defendant with a valid MPN.

Your humble blogger wishes nothing more than to keep his beloved readers well-informed and updated on the goings-on and the happenings of the Workers’ Compensation world.  Accordingly, I bring you the somewhat sad and somewhat strange tale of Dr. Arnold P. Nerenberg, a 72-year-old psychologist who recently plead guilty of defrauding the federal government in workers’ compensation cases.

Dr. Nerenberg tearfully admitted his guilt, claiming he was happy to have been caught rather than continue in his crimes.  As he explained it, he over-billed patients whose costs were covered by the government so he could treat those who could not pay.

For shame, people, we have struck down the modern-day Robin Hood.

Of course, there are people who want to help the poor so they reach into their own pockets, rather than those of the tax-payers.

In any case, it doesn’t look like Dr. Nerenberg is a Qualified Medical Evaluator, but it’s entirely possible he was the treating physician on one of your cases.  So check your bills.

Given Dr. Nerenberg’s sentence of one year of home confinement and electronic monitoring, he might find it difficult to appear as a witness at any lien trials, so strike while the iron is hot!

It never ceases to amaze me, dear readers, why a law enforcement officer would think that workers’ compensation insurance fraud is a good idea.

The SacBee reports that a CHP officer and his CHP dispatcher wife have been charged with workers’ compensation insurance fraud.  The CHP officer has been accused of making false statements to his physicians about his limitations and inability to work.  His wife, who attended some of the appointments, apparently confirmed these fake restrictions.

They would then drive out of town (with his wife driving until they were out of the patrol radius of officers familiar with them, and then they would switch) and he would go camping, boating, swimming, and diving.

Now, of course, there has been no conviction as yet.  But, speaking generally (this is how you can tell your humble blogger is tired of angry workers and their attorneys threatening to sue him for hurt feelings and the glare from having the light shone on their activities) workers’ compensation fraud by law enforcement officers does particularly grievous damage – the very system by which frauds are arrested and prosecuted is impeached when the watchmen demand watchmen of their own.

A particular source of frustration is the fact that law enforcement officers already receive workers’ compensation benefits that ordinary citizens do not – full salary for a year in lieu of the capped and reduced temporary disability benefits; compensability presumptions as to a whole host of impairments and conditions (including congenital conditions), and weekly delivery of coffee and doughnuts by the Governor himself (that one isn’t in the labor code… yet!)

But, when law enforcement officers decide to engage in workers’ compensation fraud, obviously that isn’t enough.

Some reader and some state officials might find this particularly egregious because these are tax dollars that are wasted to provide the officer with paid vacations.  But, your humble blogger hopes to remind you that all fraud is at taxpayer expense.  It doesn’t matter if you have to pay more taxes to subsidize a fraud’s paid vacation, or if you have to pay more for the items on the shelves because there is a higher workers’ compensation insurance premium: you’re still paying.

So, if you see something, say something – a workers’ compensation fraud is always taking money directly out of your pocket, and laughing all the way to the bank while you’re grimacing all the way to work.

What happens if you see your employee is about to get hurt, and you immediately fire him before the injury occurs?  Can you avoid workers’ compensation liability?  If a worker falls from a high platform, can his employer shout “you’re fired” before he lands?

I know those two are silly examples, but what about this one: If you fire your employee, and he gets hurt on the way home, are you somehow on the hook?

Consider, if you will, the case of Jose Medel v. Charter Communications, Inc., a recent writ denied panel case.  Mr. Medel was employed as a technician by Charter Communications, and used the company car to drive to and from work, and to drive out to the homes and businesses of Charter clients to install or maintain their phone and internet connections.

One fine day in April, he was summoned to the Human Resources office, where his employment was terminated.  His company car keys were taken, as were his company cell phone and ID badge.  Chartis then arranged for Mr. Medel to be taken home by Town car.

Unfortunately, the car’s driver lost consciousness and in the resulting car accident, the driver was killed and Mr. Medel sustained injury.

In resisting the claim, Chartis argued that Mr. Medel was no longer an employee by the time he got into the car for his drive home.  Chartis also raised the argument of the going and coming rule – after all, Mr. Medel was on his way home and no longer providing service to his employer.

Both defenses were soundly defeated.

Relying on Shoemaker v. Myers, a 1990 California Supreme Court Case, the WCAB noted that “the employment relationship continues for a reasonable time after its technical termination in order to effectuate an orderly termination of the relationship.”  Even after the magic word “you’re fired” are said, the spell does not immediately take effect.  In all likelihood, once Mr. Medel had made it safely home, the relationship would have been at an end, assuming there was no phone call asking him to come pick up a final check or his personal belongings.

Because of the terms of the employment, Mr. Medel found himself stranded at his employer’s premises, without a car or a phone.  It would be interesting, though, to see what result we’d have if Mr. Medel had turned down the offer of the ride, and had called a cab instead.  Your humble blogger would argue that the self-procured cab ride home may have terminated the employment relationship, whereas the employer-provided transportation failed to do so.

The WCAB also rejected the “going and coming” rule because of the patchwork of exceptions.  Mr. Medel was technically engaged in a special mission by going to the HR office, and was thereby covered by workers’ comp until the mission was over (his arrival at home).  Additionally, employer-provided transportation like a bus, carpool, etc., typically provides yet another example of the going and coming rule’s limitations.

As many employers have learned the hard way, liability for the actions and the injuries of employees does not end so abruptly as uttering the magic words of “you’re fired.”  One of your humble blogger’s former employers, long, long, before he became an attorney, would make sure that a fired employee would be escorted from the premises, to avoid intentional falls and injuries.

Just another thought, though – why would you want to have workers’ compensation bar this claim?  Imagine, if you will, that Mr. Medel’s claim was defeated by the defenses discussed above: he would then seek damages in tort against Chartis, with much higher litigation costs and much larger (potential) verdicts.  But, again, perhaps this is an area where not all defense interests are aligned.