Archive for May, 2015

Supreme Court: ANY Industrial Contribution to Primarily Non-Industrial Overdose is Compensable

May 29th, 2015 No comments

Hello dear readers!

The Supreme Court has issued its opinion in the South Coast Farming case, and has reversed the Court of Appeal’s opinion, which had previously rescinded the finding of industrial causation in the overdose death of applicant B. Clark.

By way of background, applicant while taking medication for an industrial injury, as well as other medication for non-industrial difficulty sleeping, suffered an overdose resulting in his death.  His wife and children sought death benefits (a somewhat gruesome term that still bothers your humble bloggers delicate and sensitive nature) only to have the Agreed Medical Evaluator opine that the medication taken for the industrial injury made, at most, the “crust” of the causation pie.

The finding of compensability was appealed to and reversed by the Court of Appeal.  Your humble blogger may have even weighed in on the issue himself.

Now the Supreme Court has issued its opinion: “The [COA] thus concluded that, although Elavil ‘played a role’ in Clark’s death, it was insufficient to prove proximate causation because it was not sufficiently ‘significant’ or a ‘material factor.’  This analysis fails to honor the difference between tort law principles and the application of the workers’ compensation scheme … In the workers’ compensation system, the industrial injury need only be a contributing cause to the disability.”

In short, if the crust is part of the pie, then the resulting stomach ache is an industrial injury.  No … wait … if the pie is in the crust, and the crust flakes into the pie, then it’s a crusty pie which is industrial.  No… if the pie is cut in two, and then some of the crust falls into the… pies are delicious, and lend themselves to a sweet tooth, an empty stomach, and, as your humble blogger has found on many occasions, even a broken heart, but workers’ compensation analogies aren’t the best plate for this meal.

The industrial cause, even if not “significant” or “a material factor” is enough.  One drop of industrial poison spoils the well.

So, why is your humble blogger so upset about the results that follow this decision?  Civil Code section 3333.1 – “no source of collateral benefits introduced pursuant to subdivision (a) shall recover any amount against the plaintiff nor shall it be subrogated to the rights of the plaintiff against a defendant.”  If there is a basis to claim medical malpractice on the part of one or more of the physicians involved in this case (doctors – I said “if”, so you can hang up the phones and let your libel attorneys get back to counting the retainers you’ve paid them) there’s nothing in it for the comp carrier.

The family of the deceased might be able to recover in tort against the physicians involved, but they can now ALSO recover from the comp carrier, and there is no credit or remedy for the workers’ comp insurer.

At the risk of sounding childish – it isn’t fair.

Have a good weekend, folks!

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WCJ: RFA For Previously Authorized Ongoing Home Care Not Subject to UR

May 27th, 2015 No comments

Hello, dear readers!  Your humble blogger returns, eager to share with you the wisdom of this pivotal area of law that determines so much in the lives of so many… you guessed it! WORKERS COMP!

So, have you heard of the Miramontes case?  Applicant sustained an admitted industrial injury that left him effectively paralyzed from the waist down.  His treating physician had recommended home care services to help him perform basic activities of daily living, including getting in and out of bed, getting around, etc.  Defendant had been dutifully providing (or paying for) home care services for seven years until around October of 2013, when defendant wrote to the treating physician to have him submit additional requests for ongoing home care authorization.

When the good doctor did not provide a prompt response, even after repeated follow-up by defendant, in March the faucet was turned tightly clockwise (for those of us who grew up with electronic watches, that means they turned the water off).  Naturally, applicant had a problem with this.  In response to the facsimile reflecting this cut-off, applicant faxed back a prescription from the treating physician to provide home care “full time.”

Defendant then submitted the prescription to UR, and UR promptly denied any home care at all.

The matter proceeded to trial, and the WCJ ruled that defendant must continue to provide home health care (at $560 per week).

Defendant sought reconsideration, which was denied without comment by the WCAB.  A writ of review was likewise denied by the Court of Appeal.  In his report and recommendation, the WCJ noted “this judge believes that defendant’s unilateral stoppage of medical treatment to force a new prescription for any medical service that an injured worker has needed for seven years is disingenuous and should not be allowed by the [WCAB].”

Now, let your humble blogger begin by saying this issue is not as clear-cut as a “true-believer” from either the applicant or defense bar might claim.  I get the defense position completely – we wanted a prescription to make sure that the services are still necessary; and, once we got a prescription, we performed Utilization Review.  Additionally, IF it was wrong to threaten to cut off home healthcare after the treating physician failed to respond from October to March, that has little to do with the fact that a prescription was reviewed and failed the UR test.

We saw, for example, the case of McCool v. Monterey Bay where defendant’s UR of pain medication which applicant had been receiving regularly, prompted the WCAB to note that such adherence to the strict letter of the law with respect to UR might warrant an audit, especially when the result is putting an injured worker’s life in peril by suddenly cutting off medication.

In this case, applicant had been using (and, one could say, relying) on home health care for seven years.  Without any apparent documentation in change in circumstances, defendant obtained a prescription for the services, and UR then non-certified the treatment.

On the other hand, look at the position the WCJ took in this case: He did not order the defendant to provide medical treatment because UR was untimely.  Instead, he looked at the merits of this particular case, and, in these circumstances, found that it was appropriate for the treatment (home healthcare) to continue.

This standard or review is proposed in Senate Bill 563 – if there’s no change in circumstances, the defendant is prevented from re-submitting previously authorized treatment to UR.

But, at this time, that’s NOT the law.  Dubon II very clearly spells out that the WCAB has no jurisdiction to determine the validity of a UR determination EXCEPT as to whether it was timely.  In fact, your humble blogger has seen a string of cases recently which adhere to Dubon’s holding very closely, and seem to turn a blind eye to the reasoning used by UR.

So what’s different about this one?  Why did the WCAB decline to comment or provide analysis?  Why was this new exception (previously authorized ongoing care) not adopted or rejected by the Board?

It is well above your humble blogger’s pay grade to find the answer (your generous subscription fees are appreciated, nonetheless), but I suspect it has to do with the facts of this particular case – a treatment that is clearly necessary and, probably, vital on the one hand, and a result on the other hand that is, in your humble blogger’s estimation, procedurally correct.

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Happy Memorial Day 2015!

May 25th, 2015 No comments

Hello, dear readers!  I hope you’re enjoying your day off today instead of reading this blog post.  But, for the dedicated and overzealous among us, I wish you a happy and meaningful Memorial Day!

As always, your humble blogger invites you to take the break from the hustle and craziness of work to reflect as much as rest.  For many families, every day is memorial day – there’s an empty chair at every Thanksgiving; at every wedding; at every aspect of life.  For those of us who are fortunate enough not to be in such a position, having lost a family member in service to the United States, Memorial Day is as much an opportunity to honor the memory of countrymen gone in the discharge of their military duties, as the families they left behind.

Be especially kind to everyone you meet today, dear readers, because, to quote Ian Maclaren, “everyone you meet is fighting a hard battle.”

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On MPN Access Standards (Part 3 of 3)

May 15th, 2015 No comments

So, dear readers, what can Alex (or any defendant) do to argue that the proper access standard, when an applicant wants to designate a particularly specialty for a primary treating physician, is 30 miles, rather than 15?

The first line of attack is to challenge the specialty designated.  Why do we need a chiropractor to be the primary treating physician on a psyche claim? Or an eye injury?  We’ve seen one panel case where a Chiropractor QME was allowed to offer opinions on spinal injuries and a psyche claim, but for the purposes of a primary treating physician, how is the specialty to be selected?

Labor Code section 4616.3(d)(1) specifically requires the “[s]election by the injured employee of a treating physician and any subsequent physicians shall be based on the physician’s specialty or recognized expertise in treating the particular injury or condition in question.”  Accordingly, Alex and his client might be able to survive a challenge to the MPN on the sole basis that a pain medicine physician may not be appropriate in a particular case.  Once past this threshold, however, we are left with the fact that the legislature recognized that almost every physician is going to be either a specialists of some sort, or have “recognized expertise in treating the particular injury or condition in question.”   In other words, it is not appropriate for the applicant to select a physician as PTP that will simply manage the specialists and have nothing to offer in treating this particular injury him or herself.

A common argument from applicant attorneys, and one that appears to be persuasive to some WCJs and commissioners, is that neither pain management physicians, nor chiropractors, are “specialists” as contemplated by regulation 9767.5(a)(1).  A surgeon specializing in hand surgery might be a specialist, but chiropractors and pain management physicians are just PTPs, and so there must be 3 of each within 15 miles of applicant’s home or workplace.

However, if you ask the doctors themselves whether they are specialists, they will shout it with pride from the mountain tops!  The California consolidated licensing website, BREEZE, allows you to look up a physician and list his or her area of practice and any board certifications that are relevant.  The physician’s website itself will typically laud the “specialty” of the physician, which will only be bolstered by Board certification in a particular field such as pain management or even in chiropractic medicine.  These physicians will tell you themselves that they worked hard, focused on a field, and obtained certification in a particular specialty.  THEY ARE SPECIALISTS!

Finally, section 9785 specifically defines a primary treating physician as “the physician who is primarily responsible for managing the care of an employee, and who has examined the employee at least once for the purposes of rendering or prescribing treatment and has monitored the effect of treatment thereafter.”  Accordingly, if a defendant is prepared to offer three physicians, of any specialty “to treat common injuries experienced by injured employees” within 15 miles or 30 minutes of the employee’s home or workplace, that should be enough.  When the injured worker says “these guys aren’t what I need… I need someone who specializes in X; give me three of those to choose from” then the defense should be entitled to 30 miles.

Some readers have graciously provided other suggestions:

Trying to focus on “30 minutes” rather than “15 miles” and establishing that the injured worker could travel 22 miles in 30 minutes.  This is doable, but might be hard to establish with issues such as traffic, speed limits, etc.

Other readers have suggested that the regulations should be amended to specifically define which “fields” (to avoid using the word “specialties”) are general PTPs (family law, occupational medicine, internist, GP) and which would be considered specialists.  That way, when creating and maintaining an MPN, the employer and/or insurer would know which holes to plug.

There’s more to come on this, dear readers, because the MPN is a hard-earned tool for defendants to keep care standards high while care costs low.  Your humble blogger submits that maintaining a 30-mile radius (rather than 15) for access to specialists, including pain management and chiropractic medicine, is worth fighting for (and helping your friends fight for as well).

Have a good weekend!

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On MPN Access Standards (Part 2 of 3)

May 13th, 2015 No comments

So, there I was, dear readers, torn in all different directions – the loyalty to a friend in need, the allure of a relaxing evening, the still unsettled issue of MPN access standards… and so, I did the only thing a good friend does in such a situation – let’s defend us an MPN!

The problem with this issue is rooted in California Code of Regulations section 9767.5.  The language states that an “MPN must have at least three available physicians of each specialty to treat common injuries experienced by injured employees based on the type of occupation or industry in which the employee is engaged and within the access standards set forth in (1) and (2).”  Subsection (1) requires “at least three available primary treating physicians … within 30 minutes or 15 miles of each covered employee’s residence or workplace.”  Subsection (2) requires “providers of occupational health services and specialists who can treat common injuries experienced by the covered injured employee within 60 minutes or 30 miles of a covered employee’s residence or workplace.”

The defense position is typically to argue that we can provide you with three doctors within 15 miles, or, if you want to specific a specialty, we can provide you three physicians of a particular specialty within 30 miles.  By contrast, the applicant position is (typically) to demand at least three chiropractors or three pain management physicians within 15 miles of the employee’s residence or workplace.  What meaning does subsection (2) have in such an argument?  That orthopedic surgeons are “specialists” but pain management and chiropractic treating physicians are not.

Unfortunately, the law on this is not very settled.  There have been a few panel cases on the subject, but not much else (that your humble blogger could find).  So, what could I tell Alex?  What could Alex tell his client?

In the panel case of Martinez v. New French Bakery, the WCAB was addressing the issue of MPN access – applicant had claimed that defendant’s failure to provide three orthopedists within 15 miles of applicant’s home or workplace rendered the MPN invalid.  In seeking reconsideration of the WCJ’s ruling to that effect, defendant argued that the appropriate standard is 30 miles.  The WCAB granted reconsideration, reasoning that “[h]ere, the WCJ found that defendant failed to provide three orthopedic surgeons located within 15 miles of applicant’s home or workplace.  This finding was in error because the WCJ applied the 30 minutes/15 miles access requirement for treating physician under Rule 9767.5(b) rather than the 60 minutes/30 miles access standard for specialists, such as orthopedists, under 9767.5(c).”

Another, split panel opinion, recently went the other way.  In the matter of Lescallett v. Wal-Mart, applicant raised effectively the same argument: if there weren’t 3 pain medicine physicians within 15 miles or 30 minutes of applicant’s home or workplace, the MPN was defective.  Defendant sought reconsideration of the WCJ’s ruling to that effect, and argued that the proper standard for a specialty, like pain management, was 30 miles or 60 minutes, as per subsection (2).  In a split panel decision, the Lescallet opinion denied reconsideration, ruling that the appropriate standard is from subsection (1).  The majority seemed to hold that subsection (1) applied to primary treating physicians, while subsection (2) applied to secondary physicians.

The dissenting opinion would have granted reconsideration, reasoning that “when a specialist is selected within an MPN to provide medical treatment as a primary treating physician, or as a secondary physician, the access standards for specialists apply.”

So, dear readers, what line of attack can you take, with this limited authority available, to defend the theory that any PTP will do within 15 miles, and a demand for a certain specialty affords the defendant 30 miles to comply?

Check back on Friday for your humble blogger’s even humbler suggestions.

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On MPN Access Standards (Part 1 of 3)

May 11th, 2015 No comments

Happy Monday, dear readers!  I know you visit this blog to hear the occasional joke or brush up on the latest crackpot ideas coming out of the humble-blogger-kitchen.  Instead, today, I’d like to relate to you a phone call I received just last Friday afternoon.

The week’s work was done: benefits were soundly denied; files were tightly closed; and your humble blogger was looking forward to heading home for the weekend… then, the phone rang.  Naively expecting good news, I picked up the ringer, only to hear the voice of a dear friend and law school classmate who had recently started practicing workers’ comp.

Now, my dear friend, Alex, had ignored my prior advice, which urged him not to start practicing in comp – but now he sought advice again.

His client had invested heavily in developing an impregnable MPN, only to have some upstart applicant’s attorney challenge it (why, I never!).

Initially, the applicant’s attorney had claimed the MPN was defective because there were no pain medicine physicians close to applicant’s home.  Alex had countered with the fact that California Code of Regulations section 9767.5 allows an MPN to provide physicians near the employee’s residence OR workplace, so if the employer has doctors near the ol’ jobsite, all is well with the world.  Score one point for Alex!

Not to be discouraged, the applicant attorney came back with “but you don’t have 3 pain doctors within 15 miles of the worksite.  So I get to send my client to Dr. Quacky McQuackerton, outside of your MPN.”

Now, please bear in mind, dear readers, at this point, I watched the last car leave the parking lot from my window and I could practically taste Oban on my lips as I longed for home.  But, the bond of friendship, and, more importantly, the fraternal links that join all defense attorneys together into a phalanx of iron-colored suits, gave me strength and patience.  So, the facts kept rolling in…

The MPN in question was a pretty good one – there were quality treating physicians ready to help injured workers, and the MPN offered a pretty broad array of disciplines and specialties.  However, in this particular case, the injured worker’s workplace was less than 15 miles from two pain management physicians, but pain doc number 3 was 22 miles away, and so my panicked friend recited section 9767.5(a)(1) – three available primary treating physicians within 15 miles of workplace or residence.

An expedited hearing was coming up, and his client wanted him to defend the MPN.  Now, Alex was asking me for a defense – what’s to be done?  Cry havoc, and let slip the lawyers of litigation!

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Copy Service Regs Heading Our Way!

Despite his foreign origins, your humble blogger is a red blooded American now-adays: he likes his canyons grand, his dawn light early, and his banners star-spangled.  That being said, when the gubmn’t imposes regulations that, in effect, limit the extent of other government programs, one can hardly object, right?

So, when defendants are constantly tasked with paying, adjusting, or, as is the case more often than not, litigating copy service liens, the uncertainty of liability usually drives the cost up more than the legitimate claims of copy services themselves.

Effective July 1, 2015, defendants will have a new tool to cut back on copy service liens: section 9981.

Here’s a basic breakdown – defendants will have 30 days from the date the applicant requests copies of records to provide those records, and, if they do, defendants will have no liability for any copy services engaged by applicant.

Copy services will have to be performed by a “registered professional photocopier.”  What’s a professional photocopier?  Check section 22450 of the Business and Professions Code: “[a] professional photocopier is any person who for compensation obtains or reproduces documents authorized to be produced … who, while engaged in performing that activity, has access to the information contained therein.  A professional photocopier shall be registered pursuant to this chapter by the county clerk of the county in which he or she resides or has his or her principal place of business, and in which he or she maintains a branch office.”

And, as to the actual fees, we’re looking at $180 flat fee for the first 500 pages, $75 for cancellation after the subpoena has been issued, $20 for EDD records, $30 for WCIRB records, and some minor fees here and there for additional pages or electronic copies.

Your humble blogger thinks this is definitely a step in the right direction.

Copy service bills are annoying and can rack up the costs involved in closing out a file.  The adjuster is often tasked with deciding whether to try to settle current copy service liens and create an incentive for more liens of the same type on future files, or spend precious litigation dollars and incur delays in closing the file (and spend precious daylight attending to lien claims instead of case-in-chief matters).

These regulations are going to be a valuable tool in cutting down on senseless litigation of this sort.  Remember, folks, it is in the interest of the applicant’s attorney, as a repeat player, to make a claim as expensive as possible.  After all, if wasteful litigation can make each claim $20,000 more expensive, it’s easy to negotiate an extra $10,000 in settlement just to avoid having to waste all that extra money.

Regulations such as these will help cut down on the litigation cost balloon.  Let’s see how they play out at the Board.

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Injured Driver Sues Uber; Demands WC Coverage

Happy Monday, dear readers!  And, to those of my beloved followers who are members of the Jedi Faith, May the 4th Be With You.

Today’s post comes from the workers’ paradise of San Francisco, with the story of an Uber driver who reportedly sustained injuries following an attack from one of his passengers.  The passenger was taken into custody and has entered a plea of not guilty, but the Uber Driver is now suing Uber, demanding that he be covered by workers’ compensation.

Uber, of course, is arguing that no employment relationship exists, and that Uber drivers are independent contractors.

This has been an area of contention for some time, as Uber does not pay for workers’ compensation, Uber doesn’t obtain medallions from cities, and Uber skips a lot of the operating overhead that its competitors (like traditional taxi cabs) pay and pass on in fares.

Sooner or later, there’s going to have to be a determination about this: are Uber (and Lyft) drivers independent contractors or employees?  Your humble blogger, of course, submits that they are, in fact, independent contractors, and so fall outside the scope of California’s workers’ compensation laws.

The main case and authority on this point is, of course, the Supreme Court decision in Borello.  When analyzed in light of Borello, it appears that the Uber driver is an independent contractor.  What does Uber provide?  It provides a dispatch service – the passenger sees a list of available drivers, picks one, and sets a destination.  Uber takes a reported 25% commission and keeps a publicly-viewable log of driver reviews.

What do the drivers provide?  Their time (drivers set their own hours by turning on or turning off the Uber app), their own cars, their own gas, their own charm… What part of this spells an employment relationship?

Furthermore, the driver in this particular lawsuit, like every single driver that downloads the Uber app and starts picking up passengers, knows full well what he (or she) is getting into.  There’s no question when new drivers download the app that they love the independence of being an Uber driver – but independence comes with a price, and that involves bearing your own risk.

Now, bear in mind, dear readers, every Uber driver can call up an insurance broker and buy a workers’ compensation policy for him or herself – but the driver in this case elected not to do that, and so do so many more because they’d rather bear the risk of an injury while driving for Uber than pay California’s workers’ compensation premiums.

Children might be forgiven for gambling and then claiming they didn’t understand the risks.  Grown men and women should be expected to bear the risks of their own ventures.

Here’s hoping Uber succeeds in fighting off this challenge!  Have a good week, dear readers!

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Proposed Legislation: No UR for Maintenance Rx

Hello, dear readers!  Another Friday is upon us, and all is well in California.  The jobs are evaporating with the water, Governor Brown has declared war on grass (they type you grow on your lawn, not the type that you inhale) and here we are with another blog post to launch us into the weekend.

Earlier in the year, various organs of the state government warned us about heat exhaustion, the need to provide outdoor workers with shade and water, and the dangers of exposure to the sun and dehydration.  All wonderful advice that went unheeded in the state legislature, as SB 563, previously discussed on this blog, continues to be amended from bad to worse.

Deciding that forcing UR vendors to disclose their bargained-for compensation was not enough, 563’s authors have amended it to prohibit Utilizaiton Review from denying or modifying treatment previously authorized and used to keep an injured worker at his current health level.  In other words, if you previously authorized a gym membership for 1 year, and the doctor says the injured worker needs a gym membership year after year to stay at his current level, guess what you can’t send to UR… the gym membership RFA!

Now, I’m sure you’re thinking what everyone has thought, now and then: “Greg, you handsome devil you, what’s wrong with a gym membership?  $300 will buy you a two-year gym membership to 24 hour fitness at Costco.”  Yeah, sure, that’s great.  Now substitute gym membership with narcotics and opioids.  Recall, if you will the case of Buitendag and Kohrumel, wherein an “injured” worker was convicted of insurance fraud.  During the investigation, 20 boxes of unused prescription medication were found in applicant’s garage.

Now, you take the steady prescription of opioids, and the demand and their lucrative value on the market, well… that’s big bucks.  Accordingly, you could have an applicant receiving and either abusing or re-selling medication, without UR being in much of a position to challenge the prolonged use of opioids.

Subsection (C) of SB-563 would require the employer to show that there is evidence of a change in the employee’s circumstances or condition showing that the services are no longer reasonably required to cure or relieve the injured worker from the effects of the industrial injury.  However, would a drug test showing the absence of the prescribed medication meet such a definition?  It would have to be litigated, of course, should this ever become law, but the language does not lend itself to such a defense.

So, dear readers, here’s some advice from the private sector to all the citizenry: make sure your elected officials are well hydrated, and working in the shade.  Don’t let them suffer heat exhaustion or it could lead to serious injuries to California’s economy.

Have a good weekend folks – your humble blogger will be eager to greet you bright and early, Monday morning.

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