Archive for December, 2014

Happy New Year!

December 31st, 2014 No comments

Hello, dear readers!

From the bottom of your humble blogger’s humble heart, Happy New Year!  May 2015 bring us all health, happiness, and success, and may the lessons learned and victories earned of 2014 carry forward with us.

I hope you have a safe and fun new year, and your humble blogger will be ready and waiting for you in 2015.



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No, Virginia, Overtime is Not a “Special Mission”

December 24th, 2014 No comments

It’s the holiday season, dear readers!  Channukah; Hannukah; Hanukah; the Festival of Lights, Christmas, New Years, and, of course, Festivus!

And, in the holiday spirit, your humble blogger brings you the case of Bitkarim v. Edible Arrangements.  Therein, applicant sustained an injury while on the way home from work.  Now, I know what you’re thinking, dear readers, “going and coming rule” right? Obviously, door-to-door doesn’t get you a workers’ comp claim.  Well, applicant had an interesting theory to defeat the going and coming defense.

During the Christmas season, Edible Arrangements, at least according to applicant, had employees working lots and lots and lots of overtime, to the point that exhausted employees got into car accidents on the way home.  In fact, after working overtime (“near doubling of the applicant’s normal shift duration” applicant was left “tired, apparently to a much greater degree than her normal shift.”)  The theory, according to applicant, was that these extra hours left applicant “unable to come to a complete stop due to her tired feet” resulting in an auto collision, and applicant’s injuries.

As we all know, the going and coming rule has exceptions… and lots of them.  One of them is the “special mission” exception, which provides that that when an injured worker is assigned to a special task, typically at a different location or at different hours than the usual job, going to or coming from the special assignment, and any injuries sustained during the commute tend to be compensable.

So, applicant in this case argued that the extra hours were a “special mission” and resulted in the exhaustion that caused the collision.  After all, how could you deny such an argument around Christmas time…?  What kind of a Grinch of a defense attorney would try to resist such a claim…?

Well, the WCJ was not persuaded.  Applicant testified to often working overtime around the Holiday season, including around Christmas time.  The WCJ opined that “[a]pplicant working overtime at the time of the injury on 12/15/2008 is not extraordinary or in any way outside of the normal course of business for this employer… [i]n fact, it appears to be rather expected.”

Applicant also argued that Labor Code section 3202 and the “liberal construction” provision of the same, requires a finding of compensability, or at least of the “special mission exception” being applied.  The WCJ disagreed there as well, finding that applicant’s frequency in working overtime and being tired negated the “special” component of the “special mission” exception.

Although not mentioned in the WCJ’s report, it should be noted that the Lantz case, a Court of Appeal decision effectively held that the “liberal construction” provision of 3202 does not apply when AOE/COE has not been established.  So, when AOE/COE is in question and has not been established, liberal construction has no more place than conservative  construction, communist construction, or even libertarian construction (where buildings are made out of marijuana and privately constructed roads).

The WCAB adopted the WCJ’s report and the Court of Appeal denied review.

From the bottom of my cold, hard, barely-human defense attorney heart, I wish my beloved readers, from the frequent commenters to the silent lurkers, and everyone in between, a very Merry Christmas and a very happy New Year!

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“Dogpile” Injury Found Compensable

December 22nd, 2014 No comments

Happy Monday, dear readers!  Boy, you won’t believe what your humble blogger went through on Friday!  As I was walking to make an appearance at the San Francisco Board, a huge group of tourists crossed paths with me, and I was involuntarily turned around and ended up, somehow, where the California Supreme Court Justices go about their duties.  As I was trying to make my way out, without California Highway Patrol catching wind of my involuntary trespass, I suddenly heard someone yell “Dogpile!” and four of the current Supreme Court justices, and two CHP officers, jumped on your humble blogger.  Afterwards, they all got up laughing and “high-fiving,” before they realized that I wasn’t one of the other CHP officers and briefly apologized before escorting me out into the lobby.

If you don’t believe this story, neither did opposing counsel…

Anyway, dogpiles are apparently a growing occupational hazard.  As everyone knows, cultural norms react to the dogpile in different ways.  For example, in America, the dogpile is a friendly, fun form of roughhousing.  By contrast, in some former member-states of the Soviet Union, the dogpile was the preferred method of execution.  As Yakov Smirnoff used to say “In Soviet Russia, dogpile crush you for crimes against proletariat!”

But, as a recent split panel held, whether or not the “horseplay” defense can shield an employer from liability in a dogpile scenario turns on whether the injured worker was part of the pile, or the “victim.”

I respectfully submit for your attention the case of Tapiav. Golden State Health Centers.  From what your humble blogger can glean from the facts, applicant had participated in several “dogpiles” of fellow employees at work over a period of several weeks.  The prior dogpiles always were in good spirits, with no reprisals being taken by the victims.

At some point in December of 2012, applicant’s coworkers decided that it was his turn to suffer the wrath of the pile of dogs, and so he too was covered in the still-breathing bodies of his coworkers, with nothing but a couch to cushion the crushing weight.  The testimony in the case reflects that the employer did not know about the dogpiling, and some testimony even reflected that applicant was smiling and laughing during the injury-causing dogpile.  Dogpile. Dogpile. Dogpile.

Anywho, applicant claimed he sustained injuries resulting from this last dogpile, and the defendant raised the horseplay defense, reasoning that the dogpile was a game the employees were playing and so was not AOE/COE (this did occur off the clock, after hours, without the knowledge of management).  At trial, the WCJ sided with the defense, noting in his observations that applicant, who claimed not to have wanted to participate in this particular dogpile, was “overall evasive” in his testimony.

The WCAB disagreed, reasoning that past participation in the dogpile “game” did not make this particular involuntary involvement in the game.  The dissent, noted that whether applicant had wanted to participate and was now sour about sustaining an injury, or whether he really never wanted to be crushed beneath the dual burden of peer pressure and his peers, was a factual inquiry, and the WCJ is usually given a great deal of deference on factual inquiries, particularly the credibility of witnesses.

In any case, this is a lesson for us all: keep an eye on what the employees are doing after hours!  Now, if you’ll excuse me, your humble blogger has some industrially-caused physical therapy to attend to due to the dogpile incident sustained by decree of the Supreme Court…

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Former “Bridezilla” Faces WC Fraud Charges

December 17th, 2014 No comments

Your humble blogger has heard that the limelight can be addictive.  Once one is in the spotlight, for better or for worse, it’s hard to return to the quiet life of everyday.

So, it should come as no surprise that a woman who graced the TVs of countless homes on the show Bridezillas has once again made her way into the forum of public discussion as she stands accused of various acts of insurance fraud.

It appears that this woman (seeing how this is an accusation rather than a conviction, her name will not grace the pages of this humblest of blogs) is accused by the California Department of Insurance of having lied to her treating physician regarding the existence of prior industrial injuries, and also stands accused of submit falls mileage tallies for reimbursement by her employer.

As the word goes, the alleged fraud was discovered when the defense investigation managed to find past awards and injuries which the injured worker either failed to mention or denied (as the facts come out in the criminal prosecution, we’ll know for certain).

Now, this is nothing new, dear readers.   Many people are inclined to wander from the truth, and it doesn’t take a humble blogger to realize that if you embellish your good health prior to injuries and maximize your poor health after the fact.  That being said, your humble blogger has these thoughts to offer which may be of some use to all employers, insurers, and the troops in the trenches:

  1. The defense in this case needs to be credited with diligent investigation, discovery the existence of past injuries and the terms under which the relevant claims were resolved;
  1. It’s the easiest thing in the world to simply process and pay a mileage reimbursement form – don’t. The attorney on the file, or your claims assistant, can run the destination through google maps and match the dates of the visits against medical appointments at no charge to the file.  Of course, the visits should be to authorized treatment, which passes both UR and MPN muster.
  1. Odds are that before this case was presented to the Department of Insurance, all the leg work was properly done by the defense, including a proper outline and presentation of the claims made and the evidence contradicting the same. The law enforcement folks tend to be overworked to the point where limited resources necessitate taking the cases where it’s practically a “sure thing.”

Semper Vigilans, dear readers.

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Commercial Traveler Injured by Robber While Heading to Dinner

December 15th, 2014 No comments

Hello, dear readers!  Thank you all for your kind notes of concern – your humble blogger barely survived being washed away by the storm that slammed into the Bay Area this past Thursday and Friday.  The devastation is heartbreaking, but, rest assured, your humble blogger is determined to march onward!

bay area storm picture

Just as the skies let forth their blessings on the reluctant recipients of San Francisco and the surrounding areas, so, too, your humble blogger will rain down his wrath upon his luckless readers in the form of another blog post.

The case I bring to your attention today is that of Coon v. Swift Transportation.  Applicant was a student long-haul truck driver out on assignment when he took a dinner break, only to be viciously assaulted after parking the truck and walking to get dinner.  The employer’s policy was to have drivers stay with the trucks in “high theft areas,” which, apparently, includes the entirety of Southern California.  (By contrast, Northern California is regarded as an area of high awesomeness, so there!)

Even after the arrest of the assailant, there had been no allegations of any personal connection between the assailant and applicant.  So, in all likelihood, this was “nothing personal” and really about either hurting an unfortunate victim, or effecting a robbery through extremely violent means.

The WCJ and the WCAB both found the injuries sustained as the result of the assault to be compensable.  Applicant was a commercial traveler, in that he was traveling with the truck on the way to a delivery.  So, even when he stopped to rest, sleep, or eat, he was still “on the job.”  Furthermore, he was following his employer’s instructions to stay with the truck to prevent theft.  In fact, it is entirely possible (and probably likely) that had he left the truck in a parking lot and retired to a hotel for the night, he and the assailant would not have crossed paths.

Another point of interest in this case, however, is that the defense apparently cited to the case of County of San Bernardino v. WCAB (Tuttle), a 1997 Court of Appeal case that was NOT Published.  In Tuttle, the Court of Appeal ruled that the victim of an assault failed to carry his burden in showing that the assault was related to his employment.  Presumably, when taken with the Court of Appeal’s ruling that Labor Code section 3202 is inapplicable when the compensability of an injury has not yet been determined, the defense had an argument against compensability.

In its opinion, the WCAB cautioned the defense against relying on unpublished opinions, as such behavior is expressly prohibited by California Rules of Court 8.1115.  However, in this case, does it matter?  Even if the injury were not otherwise compensable – even if the assault were of a personal nature completely unrelated to his job duties… he’s a commercial traveler!

May you have an easy week, dear readers, and, of course, Happy Channukah!

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Failure To Recon Finding of Defective UR Negates IMR Process

December 10th, 2014 No comments

Happy Wednesday to you, dear readers!  Last week, some of your humble blogger’s acquaintances knocked on his door seeking help.  Not really interested in my lawyerly wares, they instead asked for my intervention on their behalf with a certain deity who controls the storms.  After sacrificing the appropriate number of goats (too few would have been insulting), your humble blogger secured a year’s worth of rain for California.  Unfortunately, the fine print discussed delivery as all on one day, and all in the Bay Area.  In other words, dear readers, stay safe out there – the storm is a-brewin’.

Speaking of storms a-brewin, there’s going to be another one on the issue of Utilization Review.  I know, I know, it’s settled law –Dubon has made clear that if the UR report is timely, that’s the end of it.  Right?  There’s no monster under the bed anymore… is there?

The case your humble blogger brings to your hawk-like attention this fine morning is that of Jovel v. Sisters of the Holy Name.  In that case, applicant filed for an expedited hearing, and eventually argued that defendant’s denial of authorization for treatment requested by the primary treating physician was invalid because the underlying Utilization Review decision suffered from a material defect, to wit, the UR physician was not provided relevant information regarding past treatment.

The WCJ found that the UR report was materially procedurally defective, but, instead, ordered the parties to return to UR to provide a full documentary record to the UR physician and obtain a new decision.

By way of background, dear readers, the WCJ’s decision was issued during that short period between Dubon I and Dubon II.

Ok, so we have what the WCJ has found to be a materially defective UR decision, but, as the WCJ reasoned – even with the assistance of the materials not previously provided to the UR physician, how is the WCJ supposed to decide if this treatment is really necessary or not?  After all, if the Primary Treating Physician’s opinion was sufficient, why would there be a UR?  If a Juris Doctorate makes one  a doctor, why does the restraining order presently in effect against your humble blogger prohibit me from performing any more surgeries?  Good questions, every one.

Applicant petitioned for reconsideration, but defendant did not.  So, while applicant was able to challenge the WCJ’s order to go back to UR, the defendant did not timely seek reconsideration of the finding that UR was defective.  The WCAB reviewed the relevant medical records, and found that the WCJ’s determination that UR was defective holds, but that the supplemental reports that were not provided to UR justify the requested treatment.  The WCAB ordered defendant to authorize treatment.

In other words, dear readers, it may be necessary to seek reconsideration of any finding relating to the validity of UR, unless, of course, the issue is timeliness.

If you don’t hear from me on Friday, dear readers, your humble blogger is probably without power, and his computer is in a box of rice drying out.

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COA To Review Constitutionality of IMR

December 8th, 2014 No comments

Your humble blogger, dear readers, has a little cousin named David.  I won’t bother you with the Grinberg  family roll call, but it’s sufficient to say that through a series of marriages, adoptions, blood vendettas, and one court order, your humble blogger has a young cousin who is soon to finish high school.  David, when he was reaching the end of eight grade, desperately wanted a smart phone.  His parents, not inclined to waste good money on a zombification device for their child, resisted.  But David was unstoppable: every possible chore was done before it was asked for, his grades saw improvement, and he readily gave up his allowance and reasonable gift requests hoping to get the smart phone of his dreams.

Eventually, his parents relented, and, just before high school started, he got the latest iPhone, with a budget for “apps” (kids these days – amirite?) and headphones and a carrying case, etc.  Little David was beyond happy, and when he brought it to his new high school, it was confiscated within a week.  You see, whatever deal he made with his parents didn’t trump the high school’s policy barring cell phones (even smart phones!) in school.  David was devastated – he had worked so hard, given up so much, and now it was all for naught.

At Thanksgiving dinner, David told your humble blogger about how unfair it was, and I agreed – even after all these years, the phone remained confiscated and the hurt was still there.

Now,  you can imagine, dear readers, if poor little David is still complaining about the unjust deprivation of the fruit of his labors, how is the defense community going to feel when it’s crown jewel of SB-863, IMR, has been once more placed in jeopardy of life and limb by the Courts!

Brace Yourself Meme - brace yourselves COA Review is Coming

In case you hadn’t heard, on December 3, 2014, the 1st District of the California Court of Appeal issued an Order to Show Cause – the Stevens matter, which your humble blogger humbly blogged about previously, is going to be reviewed by the Court of Appeal, which does have the power (but, hopefully, not the inclination) to overturn the IMR procedures on constitutional grounds.

The frustrating thing about this is, as many have predicted, while the gains made by the applicants, their attorneys, and the service providers/lien claimants in the workers’ compensation community are likely to stay, the bargained-for benefits of the defense community are quiet likely to be eroded by subsequent litigation and legislation.

IMR is one such gain, and this case may result in the loss of a major gain made by defendants.  The Court of Appeal, empowered to overturn the rule on constitutional grounds, could find that IMR’s procedures, or even the lack of WCAB review of the underlying UR decisions, is a deprivation of due process for injured workers.

In all likelihood, we won’t see a final result soon, as any decision by the Court of Appeal will likely be appealed to the Supreme Court.  In any case, it would be a good idea to start planning a new wave of legislative reforms.  Your humble blogger could only suggest that, this time, the self-insured groups be allowed into the negotiating room and that their collective resources and influence contribute to new legislation.  Some things on your humble blogger’s Channukah wish list?  That’s a long list (one for each candle-lit night), and perhaps we’ll have to wait for the first night of Channukah to get to it.

Another week awaits us, dear readers – cowboy (and cowgirl) up!

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Bay Area Pain PQME Suspended for Overbilling

December 1st, 2014 No comments

Hello, dear readers!  Welcome back from your Thanksgiving holiday.  Your humble blogger hopes you had an opportunity to enjoy a pleasant dinner with your family, as your leftist ACLU aunt told you about the fact that Thanksgiving proves the country was always intended as a socialist state, and your significant other’s Tea Party uncle explained that Thanksgiving is actually a demonstration of how capitalism and free market economics saved the failing colonies.

As your humble blogger emerged from his own food coma, he was informed by his disapproving mother that some Thanksgiving meals inject the consumer with 4,500 calories (that’s two days, six hours worth of food, by the way).  My salute to those of you who made it to a local Turkey Trot marathon.

Speaking of taking more for one’s plate than one should, have you had a chance to check any of your Northern California files to see if Chris Chen, M.D., is the QME (or AME)?  Well, it looks like Dr. Chen has run into trouble with the discipline unit, this time for overbilling.

As my readers can see, Dr. Chen was previously placed on QME probation through February 13, 2013, but this time is actually suspended for six months starting on October 15, 214.  If you had any questions you wanted to ask him, or perhaps wanted to take his deposition, you may need to find a new QME.

Dr. Chen was also ordered to pay restitution in the amount of $6,700.52.

A search of the QME database reflects that Dr. Chen’s QME specialty is pain medicine, and your humble blogger is going to guess that makes him more popular among applicant attorneys rather than the defense bar.  Accordingly, defense attorneys and adjusters should take this opportunity to review the bills submitted by Dr. Chen, if he is on your file.

Also, if you were planning to get a deposition going with Dr. Chen, you may actually need to get a replacement panel, given the fact that a QME must make him or herself available for a deposition within 120 days of the party’s request (see section 35.5(f)), and Dr. Chen will be suspended until April 15, 2014.

Your humble blogger’s overindulgence at the Thanksgiving table resulted in an evening of discomfort and a weekend of shame.  Other actions of overindulgence sometimes have consequences which linger a bit longer.

Gear up, dear readers, the week after Thanksgiving is always a hard one.  But fear not, your humble blogger will be here by your side.

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