WCDefenseCA

Welcome back from your weekend, dear readers.  As your humble blogger started to go through workers’ compensation withdrawals, itching to get back to denying benefits, a dear friend tried to soothe my agitations with the helpful comment: “Hey, there’s always a light at the end of the tunnel.”

Well, good old Alex was right, but often enough, the light happens to be a train.

My beloved readers will recall, no doubt, my post on the Cerda matter, where a WCAB panel held that an applicant can treating with any physician within a defendant’s MPN at any location, so long as the physician him or herself is listed as being part of the MPN.  Since that case, a host of others followed with a similar result.

So, what was that humble blogger’s rant about earlier? With the tunnels and the lights and what small children and young-at-heart adults refer to as “choo-choos”?

Submitted for your consideration, the writ denied case in the matter of Ayers v. San Diego Unified School District, in which the Workers’ Compensation Appeals Board, adopting the WCJ’s opinion and reasoning, denied reconsideration of the finding that an injured worker is limited to the physicians listed at the listed location, and not at every location a listed physician may treat or affiliate.

The facts of the Ayers case are actually pretty good – an (admittedly) injured worker selected an MPN physician and wanted to receive treatment at that physician’s non-listed location.  However, the MPN printout reflects that “providers listed on the [MPN website] are deemed in-network providers at the listed location only and no other.”  Nevertheless, the injured worker selected a treatment location that was farther away from applicant’s residence than three other treatment locations in the same specialty.

At an expedited hearing, the WCJ held that the MPN website provided adequate notice that an applicant could only treat with the listed physicians at the listed location.  On applicant’s petition for reconsideration, the defense raised the argument that, under Labor Code section 4616(d), “[i]n developing a medical provider network, an employer or insurer shall have the exclusive right to determine the members of their network.”

The WCJ’s report placed special emphasis on the fact that the applicant was made abundantly aware of which physician (and which location) was within the MPN, and which was not.  Additionally, the WCJ specifically held that the Cerda decision, as discussed above, was distinguishable because the public was not placed on special notice (by a similar disclaimer) that the physician selected by the injured worker there was only in the network at that particular location.  The Court of Appeal denied review.

So, you’re probably saying to yourself right now “I think they gave me decaf by mistake…”  Otherwise, you’re probably thinking to yourself (because, unless you accidentally drank decaf coffee instead of regular, there’s no excuse to talk to yourself out loud, or so your humble blogger is repeatedly reminded by friends, family, and certain members of the medical community) “where’s the train? That sounds like an actual light.”

There’s about a dozen panel decisions or so out there with a similar holding to Cedra, although your humble blogger will let applicants’ attorneys do their own leg work in finding them.  By contrast, the WCAB’s opinion in the case of Tabak v. San Diego Unified School District comes to the same conclusion as Ayers.

What we’re seeing, effectively, is a growing split in the panel authority.  Once there is an adequate split in the panel authority, the Court of Appeal (or an En Banc panel) gets involved, and then the Workers’ Compensation community finds itself in the shoes of a man walking down a dark tunnel – blind, scared, and unsure if the light at the end of the tunnel is the sun or a train.

In the meantime, dear readers, I suggest we follow the example laid out in Tabak and Ayers, and update all of our MPN websites to reflect that “providers listed on the [MPN website] are deemed in-network providers at the listed location only and no other.”

Hello, dear readers!  Please forgive your humble blogger’s absence of late.  Reports of my demise are greatly exaggerated.

To prove the point, I bring you this post of the unpublished Court of Appeal decision in the matter of Tina Allen v. WCAB.  Now, remember dear readers, unless you’re willing to take a certain risk with a relatively novel legal theory, unpublished decisions are not to be cited.

So here’s the deal: Allen was employed by AT&T and had received warnings about her absenteeism – you can only play hookie from work so many times before your employer starts to take notice.  She was warned that, if she missed any more time from work, AT&T might encourage her to “Sprint” out the door (see what I did there?).

Well, shortly thereafter she filed a claim for an industrial injury, and missed more time from work.  However, her treating physician concluded that some of the time she missed from work was because of another injury sustained while dancing, and not from any industrial injury.  Accordingly, her employer let her go.

Ms. Allen then filed a petition for 132a penalties, but ultimately the WCJ and the WCAB concluded that the employer did not discriminate against Ms. Allen, because they did not treat her any differently than an employee with a non-industrial injury, as per the Supreme Court’s decision in Lauher.

So, Ms. Allen then contacted AT&T and asked to be reinstated.  These attempts to rekindle that lost employment relationship failed to stir a response from hard-hearted AT&T, who, for some reason, seemed determined to not rehire an employee previously reprimanded for repeated absenteeism.

So, Ms. Allen decided to leave the past behind her and pursue other employment opportunities, and that’s the end of that… just kidding: she filed a 132a petition because AT&T wouldn’t rehire her!

Now, your humble blogger has had his share of relationships end, but using legal action to force a reunion never seemed like a viable option.

On this second petition for 132a penalties, applicant argued she was discriminated against because she was not rehired.

The WCJ rejected the second bite at the apple.  Relying on City of Anaheimv. Workers’ Compl. Appeals Bd. the WCJ held that, in order to have a 132a claim, an employment relationship must first exist, which was not the case here as AT&T had decided to treat Ms. Allen as one of your humble blogger’s cell phone calls (and dropped her…)  Even if that were not the case, the WCJ noted that AT&T refusal to re-hire applicant was not shown to be related to her workers’ compensation claim, but to the same reason for which she was fired initially (the absenteeism).

The WCAB concurred.

In seeking the Court of Appeal’s review, Ms. Allen didn’t find much by way of luck.  The Court of Appeal noted that the issue of applicant’s lawful termination was resolved by the first WCAB’s opinion, and Ms. Allen should have sought appellate review at that time, but failed to do so.  And, as the lawful termination is now a fact beyond the Court’s power to disturb, the City of Anaheim case controls.

Now, the scenario is one that is interesting for many reasons, but the most interesting to your humble blogger is whether subsequent determination of facts can invalidate prior employment decisions.

Let’s say applicant is terminated for missing time from work because the primary treating physician determines the missed days to have been caused by non-industrial injuries.  Subsequently, the parties use an AME, who determines those missed days to have been caused by an industrial injury.  Should the employer then be required to rehire the injured worker?  Does the previously lawful termination of employment suddenly become an unlawful one, retroactively?

Leave your thoughts in the comments, dear readers, and have a great weekend!

So, dear readers, sit back and listen to a bit of your humble blogger’s story-time.  When I was knee-high to a grasshopper, still an eager intern with the District Attorney’s office, I witnessed the most magical of sights.  While going through the security check point at Superior Court, a defendant appearing for a minor traffic matter had some controlled substance and related paraphernalia were found in her purse.  In an effort to put the sheriff’s deputy’s mind at ease, the soon-to-be arrested young woman said: “I wasn’t going to smoke it in the courthouse.”

Look, folks, the Courts are not the place to engage in shenanigans of any sort, but least of all shenanigans of the workers’ compensation fraud variety.  Scott Masters, apparently, was not aware of the WCDefenseCA prohibition on Court shenanigans.

While reporting for jury duty in San Bernardino county, Mr. Masters allegedly fell and sustained injury to his left knee.  However, he then filed a claim against San Bernardino as an employee-juror.  At his deposition, however, he lied about his past knee injuries, denying that he had a history of arthritis and treatment to his left knee.

So, the San Bernardino County District Attorney’s office filed charges, and on September 4, 2014, the bracelets went *click*.

So, let this be a lesson to all of us: DO NOT DEFRAUD YOUR LOCAL COURT HOUSE.

Your humble blogger can only hope that all district attorneys will treat such fraud with so much zeal, whether or not the defendant is a government entity.

You know, dear readers, Darwin’s theory resists challenges based on biology, geography, faith, and even economics.  Darwin’s theory of natural selection endures time and space, and resists the barriers of language.  But there is one fatal flaw to Darwin’s theory – that theory that suggests that some traits die out in a gene pool and others, more adaptable to the environment, become more common with each generation – workers’ compensation.

You see, if Darwin’s theory were truly correct, each year we’d see better and better criminals; more sophisticated and refined frauds.  Instead, we get cases like Mr. Leonel Gonzalez.  Mr. Gonzalez recently plead no contest to one felony count of Workers’ Compensation Fraud, and is set to be sentenced to 180 days in county jail, 3 years of probation, and to pay restitution of nearly $32,000.

An EAMS search reflects that Mr. Gonzalez alleged an injury to the back, sustained in 2006, while employed in that far-away land known as “Southern California-stan-berg-land.”  But, despite claiming to being disabled, surveillance video caught him working out with a punching bag, doing martial arts, planting trees, and even shopping at Costco.  I think it is very important to point out that your humble blogger has no objections to shopping at Costco, although the intersection of Costco’s bulk-sales and their funeral department does present a somewhat grim image.

Now, your humble blogger would have expected Darwin’s theory to take effect quickly in our workers’ comp fraudster gene pool.  Haven’t we seen enough cases of people being videotaped while engaged in strenuous physical activity, sometimes on the same day as they had told a physician or testified at a deposition to near-paralysis?

Hopefully, this blog won’t be cited as any authority in the continuing contentions of appropriate school curriculum, but it should remind us that, despite Mr. Darwin’s valiant efforts in explaining the origin of species, the fraudsters aren’t getting any smarter.  It is diligence on the part of adjusters and investigators that sets up the case, and it is a zealous devotion to justice on the part of prosecutors that results in convictions, restitution orders, and the total invalidation of the “injured” worker’s credibility in a workers’ compensation case.

Have a good week, dear readers; your humble blogger intends to do the same.

Your humble blogger has had occasion to touch upon the initial physical aggressor defense in the past.  That great defense, the one found in Labor Code section 3600(a)(7) provides a bar to workers’ compensation benefits where the initial physical aggressor was the allegedly injured worker.

Ponder, if you will, the recently writ denied case of Mattas v. Shoker Trading Corp.  Applicant, a car wash employee, while on his unpaid lunch break, got into an altercation with a customer.  There was some history there of past unpleasant encounters with that customer at the car wash… and the rest gets hazy.

Applicant alleged that the customer threw a coup of hot soup in his face, and then attacked him.  The customer, by contrast, claimed that the applicant attacked him first.  The defendant-employer, of course, raised the defense of “initial physical aggressor,” claiming that applicant initiated the altercation.

The matter proceeded to trial, and the record was, shall we say… spotty at best.  The video provided by the employer was graining and didn’t offer much in terms of identifying either the customer or the injured worker.  The events leading up to the fight could be taken to be the customer throwing soup at the injured worker… or the customer making a slight hand gesture with his hand.

The witnesses weren’t very helpful either, apparently, being vaguely aware that a fight occurred.

All in all, after the trial, the WCJ held that defendant failed to meet its burden to prove up the defense, reasoning that, at best, it was unclear as to who the initial physical aggressor was.

The WCAB, in a split panel, on defendant’s petition for reconsideration, took another position (while reaching the same conclusion).  The WCAB noted that the WCJ’s summary of the video offered at trial reflected that the customer was agitated and kept getting closer to the injured worker.  This was sufficient to make the customer the initial physical aggressor, in that he was acting in a threatening and intimidating manner.

But, there was a dissent.  The WCJ noted that there was no evidence of actually aggressive language or gestures.  While the video may lend itself to that interpretation, the applicant never testified to being afraid or feeling threatened, and absent such testimony, you might need actual physical aggression initiating from customer.

I don’t think it’s the surprise of the century that your humble blogger agrees whole-heartedly with the dissent.  Generally speaking, most legal tests require a subjective and objective component: assault is placing a person in a reasonable fear of an imminent battery, so how could one assault a person by pointing a gun the person knows is unloaded at them?  How could this applicant be the victim of someone else’s initial physical aggression when there was no physicality and no aggression?

Some of my beloved readers (and less-than-beloved readers) will likely recall a blog post on the Yera v. J.C. Penny matter, in which the WCAB ruled that simply claiming to be “intimidated” by a supervisor’s presence was insufficient grounds for not attending a deposition.  Applicant showed no reason for why she would be intimidated, and should have sought a protective order right away, rather than simply refuse to attend.

Well, now let me show you the flip side of the situation.  In the case of Foroughi v. County of San Bernardino, applicant claimed to have sustained an industrial injury to the psyche, allegedly caused by her treatment at the hands of her supervisor for the past five years out of a 25-year-tenure.  When that supervisor appeared at applicant’s deposition as the employer representative, applicant broke down crying and shaking, and the deposition was terminated.

Applicant sought a protective order, seeking not only applicant’s supervisor, but also applicant’s supervisor’s supervisor from appearing at the deposition, supported by the report of her treating physician, who opined that “having [applicant’s] employer present at her deposition would be extraordinarily detrimental to her mental health”.  The WCJ denied the petition for a protective order, but the WCAB granted applicant’s petition for removal, reasoning that the employer could still have another representative present, and thereby the “party” defendant could attend the deposition.

Defendant’s petition for a writ of review by the Court of Appeal was denied.

Now, your humble blogger can’t help but disagree with the findings of the WCAB.  I’ve had the benefit of having employers attend applicant depositions with me, and it is an exceeding useful resource to have someone who is personally familiar with all the facts in a case present to help guide follow-up questions.

The benefit to the employer in attending the deposition is not just to have a fun field trip or to get a live performance of the latest legal drama about lawyers who really care.  The benefit to the employer in attending the deposition is to be able to assist the attorney in asking questions on the spot, with follow-ups, specific dates, and the names of specific witnesses, things that could be explored prior to an applicant’s deposition, but not nearly as effectively: who knows what curve balls the applicant will send your way?

There are less restrictive protective orders that are available that could have afforded the defense the benefit of having the knowledgeable employer representative present, and still avoided a face-to-face between the injured worker and her alleged oppressors.

Your humble blogger, for example, takes his depositions on his laptop.  The entire deposition could have a phone conference for the employer to listen in, and use a chat function such as Google Chat or Skype to privately communicate questions to the defense attorney to ask.  Sure, this may take longer, but what applicant’s attorney would object to a bigger 5710 fee?

Don’t get me wrong, dear readers: I fully sympathize with a person who has had a 5-year stint of traumatic psychological treatment at the hands of a supervisor, especially after a twenty year incident-free tenure.  But we’re not dealing with that here – we’re only dealing with the allegations of that scenario, and the purpose of discovery is to guide us to what we’re REALLY dealing with.  Meanwhile, the defendant is still entitled to a legal defense.

In the alternative, perhaps your humble blogger will start seeking protective orders to exclude the applicant’s attorneys that give me particularly bad headaches from depositions…

Happy Hump Day, dear readers, keep up the good work!

If you’re not a big fan of the antics of Justin Bieber, you might not be a big fan of some of his background singers either.  Apparently, Vernon Burris, a background singer for Mr. Bieber, is in some hot water over taking care of his disabled aunt.

Mr. Burris may even benefit from Mr. Bieber’s deposition tactics.

Deborah Wilkes, a former employee for Los Angeles County, had received a lifetime pension award, and her sister, Dolly Burris Bennett, was taking care of her.  Well, while Ms. Wilkes passed away in December of 2004, but Vernon Burris continued to sign her pension checks and deposit them into his mother’s account.  It is estimated that $165,000 was improperly collected from Los Angeles County.

Now, Mr. Burris managed to sing his way into an arrest in 2014, the authorities swooping in Justin time (see what I did there…? Because he worked for Justin Bieber…?)  So from the time of death to when a tip came in, LA had been paying out for about ten years!

Now, dear readers, before you close this blog post off from your computer screen and your thoughts, writing it off as a filler post and turning back to thoughts of your weekend, bear with me just for one minute more.

What procedure do you have in place for your pension cases, ranging from 70-100% permanent disability, to guarantee that the person receiving the pension is still entitled to it?  What program do you have to regularly check to make sure your closed cases don’t have potential to be reopened for a reduced award?

Diligence is expensive, and when dealing with someone honest, diligence may seem like an unnecessary expense.  But, the sad truth is that we don’t always deal with people who are honest.  Some people lie to get a workers’ compensation award.  Some people lie to keep the award.  Perhaps it makes sense to periodically check up on our semi-closed cases to see if it’s time to put away the checkbook.

Chins up, dear readers!  It’s going to be a good week – your humble blogger can feel it!

Some of my readers will remember the recently posted-of decision the Newton case, in which the WCAB panel of commissioners held that a registered nurse’s signature on a utilization review delay notice rendered the utilization review invalid.

Well, it looks like the WCAB may have reconsidered its position in Newton v. Jack-in-the-Box.

Originally, the WCAB ruled that defendant’s UR was defective because the delay notice issued by a registered nurse was in violation of Labor Code section 4610(e) (“[n]o person other than a licensed physician who is competent to evaluate the specific clinical issues involved in the medical treatment services … may … delay … requests for authorization of medical treatment…”)

When Ms. Newton’s requested treatment was delayed for a few days to obtain more information, and said delay notice was signed by an RN rather than a doctor, the WCAB found the ultimate UR denial of the treatment to be invalid as untimely.

However, when Mr. Jack Box found out about this, he was not too pleased, and got on the phone with his lawyers, demanding an immediate reversal.

A reversal it was! Defendant objected to the WCAB’s Notice of Intention to Award Medical Treatment, pointing out that the RN’s request for additional information was not the same thing as a “delay” in treatment, but rather a delay in UR’s determination.

Relying on Labor Code section 4610(d), the WCAB noted that the employer or insurer can request additional information to determine whether or not to authorize the treatment.  Furthermore, California Code of Regulations section 9792.9.1(f) provides that a non-physician reviewer can request the information.

So, there you have it folks, for the time being at least, registered nurses can continue to issue the delay notices while additional information is requested.

Have a great weekend!

Hello, my beloved readers!  As you return from your Labor Day weekend, relaxed, refreshed, and ready to take the Workers’ Compensation system by storm, your humble blogger greets you with news of a recent panel decision REJECTING jurisdiction over IMR.

I’ll have you know, first and foremost, that after last week’s post discussing the statutory requirement that IMR appeals be verified, your humble blogger was beset by a mob of devoted readers demanding more posts addressing the IMR appeal process.  Phone calls were received, e-mails were read, and borderline threatening messages were communicated.  Well, who am I to say no to such passionate voices?

As you will recall, Dubon was an en banc opinion in which the WCAB ruled that applicants can use expedited hearings to challenge the validity of the UR process, and thereby escape IMR.  The test appeared to be whether the UR decision suffers from a material procedural defect that undermines the integrity of the UR decision.

In the case of Stevens v. Outspoken Enterprises, Inc., applicant sought to challenge the IMR denial of a treatment request rejected by the Utilization Review process.  However, for reasons not apparent from the panel opinion itself, it appears that no Dubon challenge was mounted (as the WCJ noted in her report: “there have been no allegations of material procedural defect or untimeliness in the UR decision”).  So, the WCAB was left with a challenge to the IMR decision based on (1) the fact that IMR is unconstitutional; and (2) the IMR determination is deficient and does not constitute substantial evidence regarding medical necessity.

The WCAB’s response was to tell applicant that he was shopping for a hotdog in a hardware store.

The WCAB has no authority to declare statutes unconstitutional or to overturn legislation.  Additionally, the legislature has allowed for a very narrow few reasons to overturn an IMR decision, and the exhaustive list of those reasons is provided in Labor Code section 4610.6(h):

1. The administrative director acted without or in excess of the AD’s powers;
2. The determination of the AD was procured by fraud;
3. The IMR reviewer was subject to a material conflict of interest;
4. The determination was the result of bias on the basis of a series of protected classes; or
5. The determination was the result of a plainly erroneous express or implied finding of fact, provided the mistake of fact is a matter of ordinary knowledge based on the information submitted for review and not a matter that is subject to expert opinion.

And, here’s the best part: even if you succeed, at the end of the yellow brick road is what you’ve had all along: another IMR!  As goes the panel opinion: “the remedy provided for any successful appeal of an IMR pursuant to section 4610.6(h) is limited by section 4610.6(i) to the conduct of another IMR” and something tells your humble blogger that more IMR is not what any applicant is looking for.

So, why didn’t the applicant go full Dubon on this case?

Your humble blogger can only speculate.  In speaking with applicant’s attorneys here and there, it appears that the general policy is to always file an expedited hearing on a UR denial and make the defendant waste funds on its defense.  The familiar logic of scorched Earth appears to be that, eventually, defendants will prefer to pay for the medical treatment rather than to pay to defend it, and that today’s bottom line will trump tomorrow’s encouragement of frivolous claims.

My regular readers know how I feel about paying the Dane’s Geld, and so I can’t help but applaud the defendant in this case for its staunch defense of the IMR ruling.  Well done!

Alright, dear readers, you’ve made it!  After countless excuses and apologies to friends, family, and neighbors, you’ve escaped being trampled at the mall, avoided being burned at the BBQ, and you’ve even skipped having your bee sting allergy triggered at that one last picnic of the summer.

And here you are, sitting in the peace and quiet of your office, with your files to keep you company and your computer screen glowing warmly at your overworked and under-rested eyes.

Breathe it in, dear reader, you’re in the workers’ compensation industry!

In the alternative, if you’re reading this on Tuesday, then odds are you took the day off, so Happy Labor Day to you!

As we all know, Labor Day was originally part of the union movement in an effort to keep the working man from work, at least on the first Monday in September.

Well, thanks to a handful of workers’ compensation applicant attorneys and their eager-to-please treating physicians of choice, there are now more days than one when the working man can be kept from working, for reasons ranging from paper cuts to hurt feelings.

If you’re among the fortunate masses taking the day off, cheers! Otherwise, dear reader, let’s you and I turn back to our workload, and I’ll see you back here on Wednesday!