It has come to your humble blogger’s most humble of attentions, that there is a case floating around the workers’ compensation world, Hogenson v. Volkswagen Credit, Inc. which advances the proposition that a defendant cannot submit an MPN doctor’s Request for Authorization to utilization review.

Now, as much as I would have liked let this go unnoticed, my uncle Boris’ sage advice always comes to mind at times like these: “BORIS SMASH!”

Mr. Hogenson was treating with an MPN physician for an admitted injury sustained in 2000.  The PTP had sent in a Request for Authorization (RFA – not to be confused with the RAF, which so bravely defendant England in World War II, as that collection of aces would have been hard for any defendant to resist)

Utilization Review denied the request and applicant, as they all do now, set the matter for hearing.

The WCJ provided a history of the UR and MPN systems, and noted that UR was introduced to help control the cost of medical treatment, and then the MPN system was introduced to offer greater control.  In fact, the WCJ noted that “[a] defendant was not able to [assert] total control over the choice of Applicant’s treating physician.  A defendant controls what doctors are invited to participate in the MPN and the defendant may then oust the physician from the MPN.”

Citing section 9767.7(g), the WCJ further opined that the employer must allow recommended treatment to be obtained within the MPN.

The WCAB issued an opinion granting reconsideration in June of 2014 to study the issue, and it doesn’t look like there is an answer just yet from the WCAB.

If you have had no experience with the frustration and difficulty inherent in forming a statutorily acceptable MPN, then allow me to sing you the song of my people.

The regulations require an MPN to have at least 3 primary treating physicians within 15 minutes and/or 30 miles of an injured worker’s home or residence.  The regulations also provide that the MPN must provide at least 3 specialists within 30 minutes or 60 miles of the same.  Applicant’s attorneys, on a regular basis, will argue that the specialty of pain medicine or chiropractic care is NOT a specialty, and so an MPN must have 3 pain management and 3 chiropractors within 15 miles of an applicant’s home or work.

Now, just try to find at least 3 physicians of every specialty, 15 miles from everywhere.  Just try to find 3 physicians that are competent, dedicated, don’t overcharge, don’t over prescribe, and also have enough space in their practice to accommodate injured workers that will, as often as not, lie to them about their symptoms or the circumstances of their injuries.

Try finding enough doctors willing to come to work every day and have applicants’ attorneys degrade and insult them for refusing to maim their clients with unnecessary surgery or drive them to a narcotics addiction all to maximize permanent disability.

Now tell me about how easy it is to form a working MPN and how much control the employer really has – forced into the impossible choice of having a porous and defenseless MPN or “stocking the pond” with more ducks than fish (get it? the quacks? ducks?) that you’d rather not have in there.

Utilization review is an absolutely necessary defense for employers to have for those times that the bad doctors get allowed onto the MPN out of desperation.

Welcome back from your weekend, dear readers.  As you know, your humble blogger is not only a font of information (and sometimes misinformation), but is also the recipient of may mutterings and whispers in the workers’ compensation world.  Sometimes these whisperings are from loyal and generous readers, sometimes from ghosts of cases well denied (admittedly, after the second glass of Diplomatico rum, it is hard to recall the source).

In any case, word around the proverbial water cooler is that Dubon is coming down soon.  Whether this is wishful thinking of well-informed gossip, your humble blogger cannot say.

But, in the meantime, we must deal with Dubon’s children.  In this particular case, that of Newton v. Jack-in-the-Box, Dubon strikes again!

Newton has to do with an applicant seeking treatment as recommended by her primary treating physician, namely aquatherapy.  Utilization Review had issued a delay notice, signed only by a registered nurse.  Ultimately, the UR denied the treatment and applicant filed a DOR for an expedited hearing, arguing that the UR report was defective.

Initially, the WCJ agreed with applicant, because the UR report had referenced some number of additional pages of medical reports or records reviewed in the case.  On reconsideration, the WCAB disagreed with the WCJ, noting that such a minor violation of Rule 9792.9 constitutes a defect that is “minor, technical, or immaterial.”

And now, dear readers, the story takes a bad turn.  The WCAB found another reason to overturn the UR decision: the delay was signed by a nurse, rather than by a licensed physician, and as we all know, Labor Code section 4610(e) requires any delay of requests for authorization of medical treatment to be made by a licensed physician.

Accordingly, the WCAB issued a notice of intention to issue an order awarding applicant medical treatment (aqua therapy) as originally recommended by the primary treating physician.  Because the WCAB found a reason to overturn the UR decision that had not been raised at trial, the defendant is entitled to present its arguments in response.

Now, your humble blogger is not representing either of the parties in this case, and would not presume to instruct learned counsel in the discharge of its duties.  That being said, your humble blogger would submit that the following arguments should be made:

1. To the extent that the section 4610(e) was violated, is the Utilization Review system really impeached by having an RN sign a delay notice?  After all, the WCAB just noted a clear violation of Rule 9292.9, and brushed it aside as a minor technical violation, before deciding that a short delay in a decision was sufficient to “undermine the integrity of the UR decision.”
2. Even if UR has some defect, isn’t it appropriate to send the matter back down to the WCJ to further develop the record on the issue of medical necessity?  Dubon held that “[i]f a defendant’s UR is found invalid, the issue of medical necessity is not subject to IMR but is to be determined by the WCAB based upon substantial medical evidence, with the employee having the burden of proving the treatment is reasonably required.”  In this case, even if there is a determination that UR is defective, there still needs to be a decision AFTER that, as to whether the injured worker is entitled to the treatment based on substantial medical evidence.

   If you will recall, dear readers, the Dubon opinion itself did not award medical treatment to the injured worker, but instead provided an order to “return the matter to [the WCJ] for further proceedings and a decision on whether the [treatment] is reasonably required.”

3. Finally, even if this panel of commissioners is not inclined to remand the matter back to the WCJ to determine medical necessity, doesn’t the defendant automatically win?  If there is to be no hearing or development of the record on medical necessity, how is the applicant to carry its burden that the treatment is necessary, as expressly required by Dubon?  Whatever the procedural faults of the UR decision, if any, the UR physician’s logic still applies, and can be copy-pasted into any brief on the issue of medical necessity.

Your humble blogger wishes the defense in this case all the luck in the world.

Have a good week, dear readers!

Your humble blogger doesn’t like to name names, and has no intention of doing so in this case, but I now bring you the story of a workers’ compensation attorney from southern California facing some serious accusations of misconduct before the state Bar.

Bear in mind, dear readers, I do this not to shame anyone, because the State Bar and the California Supreme Court, if appropriate, will do that well enough itself.  I do this because the misconduct alleged is important for us to be aware of so that it is not done.  In a stressful situation, it is easy to blur lines, forget rules, and justify all sorts of behavior.  But, as with most wrongful action, it’s a slippery slope with the State Bar waiting at the bottom (not to disparage the State Bar, but you get the point)

The case involved an attorney that represented an injured worker on a workers’ compensation case, involving injury, 132a discrimination, and serious and willful misconduct.  The same applicant also had employment and disability discrimination claims, for which she retained another attorney.

At mediation, the parties agreed to resolve the workers’ compensation claim for $25,000 (of which $3,750 was to be paid to applicant’s attorney), dismiss the 132a and serious and willful claims, and pay an additional $787 as a deposition fee.  Meanwhile her disability discrimination claim was settled for $65,000, with her attorney to receive 1/3 as an attorney fee.  It appears there was no fee splitting or sharing agreement between the two attorneys.

Here is where things gets difficult.

Applicant’s counsel was apparently not satisfied with the fees to be recovered by applicant’s respective representatives.  His $4,500 recovery was dwarfed by the other attorney’s $22,500.

So, he sent an e-mail to the disability discrimination attorney, demanding a portion of her fee, or, if she didn’t make nice, he would walk through the compromise and release and obtain a 15% recovery on the $65,000.  After rejecting her offer of a $1,000 referral fee, he swapped out pages, making the $65,000 as the settlement amount for the 132a and serious and willful claims (which the parties had agreed would be dismissed), and naming himself as the sole attorney for the whole amount.

The WCJ, thinking he was dealing with an honest and ethical attorney, approved the C&R.  The disability discrimination attorney then sought reconsideration, having been cheated out of her fee.  The employer also had a thing or two to say about this, as all of a sudden, it was subject to an order to pay $65,000 as a result of serious and willful misconduct and 132a discrimination (potentially leaving the other claims no longer resolved).

Then, applicant’s counsel went a step further, filing a petition for fees for attending the mediation: 10 hours attendance, 5 hours travel to and from, all at $350 per hour.  The WCJ, again thinking he was dealing with an honest and ethical attorney, granted the petition, having been deceived into thinking that this was a deposition rather than a mediation.

Eventually, this all came out, and the parties affected by this were less than happy, and as a result, it’s possible that a career might just be at its end.

Now, lawyers are notorious for the macho act – this gets into their heads and they sometimes start over reaching.  And, in some cases, it takes over every decision-making process.

Accordingly, this is a good example of where the macho Kool-Aid can take us.  Adjusters would do well to learn from this lesson too: over-relying on “entitlement” and being victimized by the workers’ compensation system and the exploitation of workers and their attorneys can lead to a dark place.

Your humble blogger hopes that this attorney, and all who find themselves engaged in similar conduct, are redeemed and returned to the honest, ethical pursuit of justice.

There was a time when the typical lawyer did not use a computer.  Now, you need to, there are no two ways about it.  The same goes for the typical claims adjuster.  Times have changed, as have methods and approaches to doing things.  You need to be well versed in the use of computers, software, internet, etc.  That has been the case for a while, dear readers, so why am I wasting your time telling you this?

Because social media is in the same boat: it’s not just for drunk college kids to ruin their future job prospects, or insecure teens to post half-naked “selfies” and cry desperately for attention and affirmation.  It’s also a go-to for you for every single claim that crosses your desk.

Facebook, twitter, LinkedIn, Instagram, and the rest of them.

Previously, I’ve brought you examples of a disabled firefighter posting his exercise results and his MMA tournament successes, and other cases as well.  Today I bring you the story of Ronald Fortune, who testified at his deposition that he enjoyed bowling but no longer could do it because of his injury, and then posted his bowling scores on social media.

Someone on the defense team, whether the employer, adjuster, or attorney, needs to keep an eye on social media and check once in a while to see if your applicant is still an altar boy away from the altar.

In the case of Mr. Fortune, the district attorney filed criminal charges, and Mr. Fortune plead guilty to felony perjury and was ordered to pay restitution and serve 400 hours of community service and be on probation for three years.

My beloved readers have read my rants about how harmful fraud is to everyone in California, not just the particular employer or the particular insurer, so today I’ll confine my comments to the need to monitor social media on a regular basis.

Your humble blogger, and vast army of researches, writers, and staff at WCDefenseCA wishes to send its thanks and congratulations to the Los Angeles County District Attorney’s Office for its willingness to take and prosecute this case.

Semper Vigilans, dear readers.

Hello, dear readers!  Another weekend is over, and it’s time to roll up our sleeves and face the monsters and demons that await us in Complandia.  Your humble blogger had occasion this weekend to swing by Bob’s Cluttered Desk, and swipe a bit of interesting information from that busy piece of furniture.

Mr. Wilson reports that in the next few weeks, we can expect to see a new product on the shelves in Comporium stores everywhere: MSA insurance.  Basically, this product would purport to serve as a modern-day handshake and reputation: when a Medicare Set-aside Analysis report recommends a certain sum be set aside for future medical care, purportedly enough to appease the vengeful federal deity Medicare, any future action by Medicare to litigate the question of adequacy will be paid, adjusted, and/or litigated by the insurer.

Let that sink in – an employer or insurer will be able to settle cases without the risk and uncertainty (in Complandia, we call that “expense”) of the federal government coming back against them for “shifting the burden” of medical expense.

The process by which a settlement gets approved now is slow and expensive.  For C&Rs under $25,000, we just have to hope and pray, because the CMS will not bother reviewing the settlement, although conceivably, they can come back and start trouble down the line.

But, let this sink in as well:  the federal government, through a byzantine system riddled with delay, uncertainty, and vagaries, has created a need for this product.  In other words, because of the inefficiencies and meddling of the federal government, one way or another, everything is more expensive.  Every purchase you make in the store goes towards a business’s bottom line, which must in turn pay to insure, self-insure, or group-insure.

In other words, picture your humble blogger opening up his bakery in your local neighborhood.  The baked goods are delicious, the prices are low, and the venture looks very promising.  Then, one morning, in walks a burly man with two companions, dressed in the finest suits.  “This is a really nice place you got here, Mr. Greg.  It would be such a shame if something horrible happened to it.  Why don’t you let us sell you some ‘insurance.’  After all, who knows what might happen?”

So, I can either pay for the ‘insurance’ and raise my prices (or lower the quality of my delicious baked goods), or spend my days wondering when this ‘insurance’ salesman is going to have my windows smashed or my cashiers robbed.

Whether you buy the insurance or take your chances, everything is more expensive because of the way CMS goes about its business.  It’s great to have this service available, but wouldn’t it be better if you didn’t need it in the first place?  Now, if you’ll excuse me, your humble blogger will go back to making dough.

So sorry for my recent absence, dear readers.  As you may recall, your humble blogger posted an argument advocating a statutory reduction in applicants’ attorney fees, limiting the 15% usually collected to gains made above what the worker was able to obtain in propia persona.  

A couple of applicants’ attorneys confronted me after a hearing, and it was made clear to me that I could continue to advocate limiting applicants’ benefits with impunity, but any further attempts to threaten AA earnings would be met with considerable displeasure on my part.  After some time spent in a CAAA holding cell, I was able to escape using my MacGyver tool kit, which consisted of a straw, a rubber band, and a paperclip.

Anywho, I bring you an interesting story from the domain of the Federal Government today.  As every school child knows, the Federal Government, like all government entities, has a solid track record and reputation for only collecting in taxes the money it truly needs, and going to great pains, both as a whole and through its individual federal employees, to make sure the public’s money, trust, and good will is never squandered or wasted.

So, I was greatly shocked to discover that over $1 million had been paid to five employees in off-work benefits after the employees had been medically released to return to work!

The internal audit also revealed that Immigration and Customs Enforcement management failed to investigate claims or keep an eye on them as they progressed.  It’s almost as if they didn’t care if money got wasted because they had an endless pool from which they could always draw.  An ICE official, Special Agent Vanilla, ICE, reached for comment, had this to say:

Anyway, for all of us that are not in the position of complacently wasting the wealth of others, this serves as a good example of what not to do, and an excellent reminder for us all to be alert.

We don’t have endless funds to waste, neither funds for one worker ready to work but slipping through the cracks, nor all his co-workers who might get wise that no one is minding the store.

So let’s let this be a reminder to all of us to keep on top of our cases, and make sure we don’t end up paying healthy folks not to work.

Have a good weekend!

Ok, dear readers, your humble blogger has a crazy question with which to ruin your weekend: what does the wording of “at his or her own expense” mean?  As my beloved readers will recall, the Supreme Court interpreted Labor Code section 4605 to mean that an injured worker can treat outside of the Medical Provider Network “at his or her own expense.”  (Remember the Valdez decision?)  But what does that mean, exactly?

Let’s take some hypotheticals.

Applicant sustains an injury to the back working at a duck farm lifting some heavy bags of duck feathers.  His employer’s insurer wants to send him to an MPN physician, but the quacking sounds remind applicant of work so he decides to pay for his own treatment.

If he goes across the street to the medical offices of Whey, Cheatum, and Howe, D.C.s and offers to pay cash for treatment, are we within the scope of 4605?  Probably – that seems about as clear-cut as you can go.

Now, let’s change it up a bit – what if Donald (that’s the injured worker’s name, by the way) wasn’t always working on that duck farm?  In fact, Donald has a prior injury to the back from when he was an English teacher at Duck U., and that claim was resolved with an award, including future medical treatment.  If he decides to treat the same body part, but claims it under Duck U.’s medical award, is it still “at his or her own expense”?

On the one hand, if it is at his own expense, does that mean that the second employer is somehow shielded from a contribution claim from the first employer/insurer?  If it isn’t at his own expense, does that mean he is precluded from treating under his old award because there is an accepted injury?

Now, those of you still reading this most irritating of blog posts, out of some intellectual masochism, are probably thinking “well, the awards overlap, so it’s not at his own expense.”  Well, then lets add another fact.

Labor Code section 4604.5 provides a cap on all post 1/1/2004 injuries – no more than 24 chiropractic visits.  So, Donald only saw a chiropractor 12 times for his back as a result of his old injury – what if he decides to use the other 12 for this new injury?  He’s using up a finite resource, as Duck Farm’s UR said he doesn’t need chiropractic treatment at this point, but Duck U.’s UR vendor, without addressing the issue of causation, has found chiropractic treatment to be appropriate now.

Since he’s down to 12 visits, is it “at his … own expense,” as contemplated by Valdez and Labor Code section 4605?

What do you think, dear readers? What position would you take?  Because, if you know that Donald isn’t going to treat within your MPN, you might have to risk exposure for a contribution petition if is not at his expense, or you might have to let the non-MPN reports come in if you take the position that is at his own expense.

Enjoy your weekend, dear readers, but when Monday comes I expect some answers!

Welcome back from Independence Day Weekend, dear readers!

In honor of our nation’s great underdog victory, I shall relate to you the story that played out recently at the San Francisco Board – a contest between little Niko, the brave little defense attorney, and Natasha, the queen of evil and all that is unholy, representing lien claimants before the WCAB.

Niko appeared ready to defend his client, the poor and exploited corporation, but Natasha had brought her “A” game.  Within each argument for reimbursement was a better and more concise argument, not unlike the nesting dolls that were common in Natasha’s native land.

Niko seemed completely lost, until, as he frantically looked through his file for some defense, he noticed a piece of paper had come loose… his own Notice of Representation, zealously drafted and dutifully filed with the Board.  But where was Natasha’s?

“Mr. Niko… for the last time, do you have any defense to this lien claim?” asked the Judge, eager to afford all parties on calendar enough time to be heard.

“Yes your honor.  EvilDoc has failed to appear, as there is no EvilDoc representative present and there is no legally valid Notice of Representation on file.”

“What do you mean?” Roared Natasha, taking a break from installing iron curtains on the Board windows.  “I’m right here – I represent EvilDoc.”

Well, dear readers, was she, legally speaking?

Labor Code section 4903.6(b) requires all lien claimants to inform all employers, their representatives, and the appeals board within 5 days of any change in representation status.  Furthermore, Rule 10774.5(e)(4) defines the notice of representation as requiring the signature of both the lien claimant and the representative assuming the representation.  (This does not apply to attorney representatives for lien claimants, as per section (e).)

Subsection (e)(5) provides that failure to properly follow the Notice of Representation rules holds that the lien claimant is not actually represented, and if not, then the lien claimant had better be there or else face a dismissal for failure to appear.

So, unless Natasha (or the EAMS record) can produce a copy of the Notice of Representation and a valid proof of service, Natasha is just hanging out at the Board, and not appearing for EvilDoc.  And since EvilDoc is busy doing whatever it is EvilDoc does, odds are high that he isn’t going to be showing up.

Lexis has a survey of these cases in a great post here.

Greetings dear readers!  *Cricket Cricket* Ahh – of course, you’re probably sleeping in, prepping the BBQ, camping, or even engaging in the purchase and discharge of some illegal fireworks

Now, bear in mind, your humble blogger does not want to discourage you from doing any of that (except, perhaps, the illegal fireworks part).  But, as with all holidays, we should take time to reflect.

Fireworks are just fireworks.  As are BBQs and camping, and over-eating hamburgers (or veggie-burgers, for my herbivore readers).  What makes them special today is not that they’re explosives and grilled food, or that they are explosives and burned food on the same day every year.  What makes them special today is that they are to celebrate our nation’s independence, and also our nation as a nation of independents.

Now comes the ugly…

As great as this country is, something is going wrong when Americans living abroad are, at epidemic proportions, renouncing their U.S. Citizenship.  From the looks of it, it’s for economic reasons and not any ideological ones.

Something is wrong with California too, when businesses (and the jobs that go with them) are leaving the land of chronic sunshine, delicious grapes, and bountiful Sushi to face tornadoes, floods, the dessert, and even blizzards (no, not the delicious ice-cream ones).

Light up your BBQ, blow up your fireworks, and, if you’re Yosemite Sam, go ahead and shoot your guns into the air.  But in between your fourth burger and your fifth, or while you’re getting the hose to put the fire out, or even while you’re reloading, think about what course we’re taking as a nation and as a state, if the honesty of self-interest is taking our fellow Californians and countrymen elsewhere.  What are we doing that makes them prefer their new homes to their real homes?

Wishing you a 4th of July that is safe, fun, and balanced enough to afford you time to reflect!

Your humble blogger, before he hung out his own proverbial shingle and opened his own literal office, had the privilege of working for another law firm.  One requirement of continued employment was a valid California Bar license, and one requirement of a valid California Bar license was keeping up with the State’s ridiculous MCLE minimums.

So, one day, as I sat diligently at my desk at home, writing out the answers to a take-home MCLE self-test, my elbow slipped, and my pencil pierced my hand.  The cut wasn’t deep, but it of course became infected.  As a result of the amputation, my other hand and arm became overused, causing carpal tunnel and a cumulative trauma.  The inability to use both hands necessitated the use of my teeth as a gripping method, which of course caused a dental injury, as well as considerable psychiatric trauma.  Needless to say, it wasn’t long before I faced a permanent total disability determination and was prepared to lay the entire claim at the feet of my employer.

After all, I was only injured because I was catching up on my MCLEs, which I was only doing to have continued Bar Membership, which I was only doing to continue my employment.  AOE/COE established, right? Slam dunk…

Ok, now back to reality.

The Court of Appeal recently ruled on the claims of an applicant, one blessed with eternal youth, for injuries sustained at home while engaged in exercise for the purpose of staying fit for his job duties.  In the case of Daniel Young v. WCAB and County of Butte (get it? eternal youth… because his name is always Young… it’s funny because… oh.  You got it? What do you mean it’s not funny?), the Court held that when the employer states a vague requirement that employees must remain physically fit to perform their jobs, and neither provides guidelines for fitness activities or at-work physical fitness facilities, an injury sustained while doing jumping jacks at home is compensable under Labor Code section 3600(a)(9).

Sergeant Young was employed as a correctional officer by Butte County.  There was a general directive requiring him (and all other correctional officers and sergeants) to maintain physical fitness for the demanding job duties that often come with guarding inmates.  Applicant testified that jumping jacks are his “warm-up” activity prior to engaging in other exercise to maintain his weight and general physical condition.  Butte County neither provided a list of activities to be performed by employees to stay in shape, no did it provide opportunities during work hours to exercise.

Applicant’s position was clear: he exercised because he had to because his employer told him to.  Defendant’s position was equally clear: no one told him to do jumping jacks.

Although the workers’ compensation Judge found the injury compensable, the WCAB reversed, relying on the case of City of Stockton v. WCAB (Jenneiahn), for the proposition that an injury sustained at home while preparing for a fitness test necessary for work is compensable, for an injury to stay in shape when no fitness test was on the horizon was not.

The Court of Appeal disagreed, instead reasoning that the test to determine if the “off-duty recreational, social, or athletic activity … are a reasonable expectancy of, or are expressly or impliedly required by, the employment,” was whether the employee subjectively believed the participation was required, and whether this expectation was objectively reasonable.

In this case, there appeared to be no question about the subjective belief by the applicant that he had to do these exercises and stay in shape as part of his job.  On the other hand, the COA and the WCAB disagreed as to the objective reasonableness of this belief.  There was no exam, except the initial hire fitness exam, and applicant would not be tested on his physical fitness.  However, because of the vagueness of the order, the COA reasoned that the bar for what activities were objectively reasonable should be lowered.

The COA did encourage employers to avoid increased liability by limiting the scope of exercises required by the employer to maintain physical fitness.

What do you think, dear readers, is the Court of Appeal right on this one?  My initial impression when reading this opinion was that there should be a distinction between an employer wanting an employee to develop and maintain a new skill, rather than the maintenance required for the skill or ability promised at the time of hire.

So, if you have to be able to lift 160 pounds and carry it for 20 feet to get hired, it should be understood that you have to continue to be able to do that to keep your job.  By contrast, if the employer tells you, once hired, that you now need to be able to do something else, like learn and perform CPR, perhaps the injuries sustained in that pursuit should be compensable.  Just a thought, dear readers.