Archive for August, 2015

60 Day Limit For QME Appointment ONLY For Initial Evaluation

August 26th, 2015 2 comments

What’s your favorite type of shopping, dear readers?  Do you love to show your hunter’s skills by pushing to the front of Christmas shoppers?  Or perhaps you like reaffirming your ancient gathering skills by shopping for a car – going from dealership to dealership until you’ve gathered just the right amount of savings.

Well, for us in the workers’ compensation world, it’s not practice guides or suit-cases we shop for.  It’s isn’t the best surgeon or the most efficient legal research program.  It’s doctor shopping that we love!


Every single practitioner trying to keep his QME (or AME) bemoans the practice of doctor shopping.  Every single practitioner trying to bounce a QME (or AME) can recite, by heart, any reason to challenge the QME/AME status and get another bite at the apple.  It’s not personal and it’s not specific to applicants or defendants.

In the case of Lopez v. Hemington Landscape, applicant sought to get a replacement PQME because the QME was unable to schedule a re-evaluation within 60 days of the request.  Regulation 31.5(a)(2) allows for a replacement panel when a QME can’t schedule an initial evaluation within 60 days (or 90 days if the applicant is in agreement), but is rather silent on the question of a re-evaluation.

Lopez contended that section 31.5(a)(2) should apply to initial evaluations and re-evaluations, which, if sustained, would have entitled the parties to seek a replacement panel.  The matter proceeded to trial and the WCJ found that the request for a re-evaluation is not an “initial request” which would normally start the 60/90 day clock to set an appointment (“cannot schedule an examination for the employee within sixty (60) days of the initial request for an appointment…”)

Other than pointing out that panel and discovery disputes are not final orders, and therefore not grounds for reconsideration, but rather removal, the WCAB didn’t provide much guidance on this issue.  Does the phrase “initial request” refer to an initial request for any evaluation, or, rather, does the initial request have to be only for the initial evaluation?

As noted by the WCJ, the applicant’s attorney pointed out that another WCJ in the same venue had recently found the opposite result: 31.5(a)(2) applies to ANY evaluation.

There are valid arguments on both sides of this interpretation, of course.  On the one hand, there’s a strong policy militating against doctor-shopping.  The reasons to bounce a QME and get a new panel should be fairly narrow, no? After all, if a party gets a bad report (“counsel, I’m medically certain that the nail-gun shooting a nail into his head is industrial…”), it need only wait until it hears the PQME is busy, then request an evaluation and get a new panel.

On the other hand, imagine this scenario: the QME doesn’t set a re-evaluation date… EVER…

Seriously – what’s to stop a PQME from declining to see an injured worker for 6 months? A year? Realistically, it’s probably not going to happen, but it seems like the point in these regulations is to help move these cases along.  Remember, dear readers, it’s not like we can just go out and get our own experts – such a system would be crazy and totally unheard of!

If a QME can’t get his report in on time, bounce him and get a QME who can.  If a QME can’t see the injured worker on time, bounce her and get one who can.  What is the distinction between the initial evaluation and the re-evaluation?

At this point, your humble blogger’s spirit has been broken by worker’s compensation to the point that he’s fine with either result.  He’s not looking for justice or even reason –  just guidance as to what the rule is so we don’t have to have more trials on this little point.

What about you, dear readers?  Would you prefer a world full of rainbows where a QME has to set initial and re-evaluation appointments within 60 days?  Or would you prefer a land of unicorns where a QME can set re-evaluation dates at his or her convenience?  Or would you prefer a world much like our own, only with some clear-cut guidance one way or another?

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WCAB: UR Decision Com. To PTP’s Office; Not Nec. PTP

August 24th, 2015 No comments

Your humble blogger has long been an advocate of improving service and communication among the various players in our little workers’ compensation game.  To that effect, I’ve encouraged various legislative organizations and even the Governor to recognize, like in days of old, the elegance and efficiency of using carrier pigeons to communicate.  For whatever reasons, my phone calls (and carrier pigeons) have not been returned.

The thing is, that we’re no longer operating in small, one-person shops.  Doctors aren’t processing paperwork and installing anti-virus software themselves – there’s support staff: assistants, secretaries, etc.  Apparently, doctors aren’t even managing their own carrier pigeon coop.  Some day, dear readers… some day…

So, when the modern regulations or statutes refer to service on or a communication with a physician, is it enough to communicate a document to the physician’s office, or must the document be hand-delivered to the physician him or herself?

In the case of Gutierrez v. Bigge Crane & Rigging Co., applicant’s primary treating physician requested authorization for some prescription medication.  However, although UR recommended that authorization for the treatment be denied, the WCJ found that the UR decision was not timely communicated to the PTP, and the UR was deemed invalid.  The WCJ then determined that the treatment was reasonable and necessary and ordered it to be provided to the applicant.

The record apparently does not include any proof that the UR determination was communicated to the PTP within 24 hours, as required by section 9792.9.1(e)(3), but only has a letter documenting a conversation between the UR physician and the PTP’s assistant (or possibly the PTP as well).

In affirming the WCJ, the WCAB held that a defendant meets its burden by communicating the decision to the PTP’s office, rather than solely by communicating it to the PTP him or herself.  However, in this case, there was not enough documentation in the record to support such communication.

In your humble blogger’s practice, sometimes I have observed applicants raising the argument that, although a document reflects that it was faxed to  a PTP, there’s no proof that it actually was (especially when the PTP’s office has little to no incentive to produce a timely facsimile log).  Which is why, yet again, your humble blogger is pushing the carrier pigeon idea: the pigeon will be ready to testify under oath…

Perhaps UR vendors should include fax confirmation reports with their UR transmissions to the employer, insurer, and defense attorneys?  Or, better yet, perhaps the Department of Industrial Relations can apply its vast and endless influence to require all physicians who wish to treat industrial injuries to register and maintain a valid e-mail address as a means of receiving communication and UR notices.

But, then again, perhaps some people don’t want an easy-to-use and easy-to-verify system of communication.  After all, the harder you make it for UR to communicate the decision to the PTP, and the harder you make it for the defendant to prove that UR communicated the decision to the PTP, doesn’t it get easier for the PTP do perform the treatment he requested?

In any case, as per the Guttierez decision UR determinations must be communicated to the requesting physician’s office rather than the physician.  What are your thoughts?  I’ll be looking for your pigeons on the horizon with your comments…

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No Ex Parte When IW Schedules His Own AME Appt

August 21st, 2015 No comments

What does a gathering of former romantic interests on one hand and an unlawful communication with a medical evaluator on the other have in common?  Both are called “ex-parte.”  Get it?

Yeah, I know, I know…

So, dear readers, your humble blogger brings you now the story of Vallem v. State of California/SCIF, a recent panel decision originating in Stockton.

Applicant’s claim for injury to the heart and psyche was resolved by way of stipulation, with 47% permanent disability and future medical care included.  The parties had used an AME, but, as the matter was pending on the issues of applicant’s petition to reopen, applicant had apparently called the AME to set an appointment for treatment at the advice of his primary treating physician.

Defendant sought an order striking all the reports and transcripts of the AME, and to obtain an order for the Medical Unit to issue a QME Panel.

The Petition was denied and, on removal, the WCAB concurred with the WCJ, who had relied on the Alvarez case for the proposition that “an ex parte communication may be so insignificant and inconsequential that any resulting repercussions would be unreasonable.”

Just thought thoughts from your humble blogger:

One of the amendments of SB-863 was to draw a line between QMEs and AMEs in terms of communication:  Labor Code section 4062.3(f) provides that “[o]ral or written communication with physician staff or, as applicable, with the agreed medical evaluator, relative to nonsubstantial matters such as scheduling of appointments, missed appointments, the furnishing of records and reports, and the availability of the report, do not constitute ex parte communication…”  So, calling the AME to schedule an appointment, whether for treatment or an evaluation, should not constitute ex parte communication on its face.

Additionally, subsection (i) provides that “oral or written communications by the employee … in the course of the examination” do not fall into the scope of ex parte communication either.

So… what happened here?  The injured worker contacted the AME and was seen at an appointment, which was probably a mix of treatment and evaluation.  The ex parte is not there…

However, compare that to the same section in pre-SB863 Labor Code.  Section 4062.3(e) made no distinction between an AME and a QME for communications of any sort.  But, even still, assuming that Alvarez still applies in a post-SB863 world, a communication to schedule an appointment appears safe from an ex parte finding.

Have a good weekend!

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Cooking Up WC Fraud

August 19th, 2015 No comments

Happy Hump Day, dear readers!  Are you starving for workers’ compensation knowledge?  Are you curious what Chef Humble Blogger has cooking for you?

How about a blog post about a cook pleading no contest to workers’ compensation fraud charges?  (See what I did there? Stay tuned – more cooking puns to follow!)
Sven Hoffman of Marina, a lovely little town in Monterey County, has plead no contest to fraud charges brought by the Monterey County District Attorney.  He claimed a cumulative trauma to his right wrist from kneading dough, and then amended his claim to include the left wrist as well.
However, investigators documented him working out at the gym, doing cooking demonstrations, building a fence, assembling furniture, and working as a consulting chef… all while collecting temporary disability benefits because he “couldn’t work.”  You could say he went from using a cook book to using a … WAIT FOR IT… crook book!
After charges were brought, Mr. Hoffman plead “no contest” and awaits sentencing in late September.
A search of EAMS reflects that there appears to be a match, and the case appears to be active.
So, what happened here – Mr. Hoffman claimed he couldn’t work, and while collecting benefits, was actually working elsewhere.  The defense managed to obtain some pretty damning footage and the DA’s office ran with in.  So, what’s the problem?
Some of my readers have experienced the difficulty involved in pursuing these fraud cases — there are times when law enforcement is just not interested in pursuing fraud perpetrated by workers (rather than illegally uninsured employers).  There are times when the damage done isn’t high enough.
In this case, the DA picked up the defendant’s ball and ran with it, which warrants a very courteous hat tip from your humble blogger.  Unfortunately, this does not appear to be the norm, and getting charges filed can be a difficult process.
Now, if the DA isn’t interested, you can try going through the WCAB, but that doesn’t always work either.  Many WCJs are disinclined to interpret sub rosa footage that indicates a worker is exceeding his reported restrictions, and will punt to the QME, who may not want to jeopardize his or her status as an “applicant friendly” evaluator.
In other words, there’s a lot that has to come together just right to get fraud investigated and prosecuted.
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DWC: How About We e-mail Med Reports to IMR?

August 17th, 2015 1 comment

Hello, dear readers!

Your humble blogger is back,and so are you!  Are you ready to help me take on the workers’ compensation system in California one sarcastic and grossly inaccurate blog post at a time?
Well, those of you who, for some unthinkable reason, have read this blog before and have come back will recognize that your humble blogger is a big fan of technology.  Ideally, workers’ compensation will continue to modernize until all the work is done by robots and we all have the same job: sipping Oban and chuckling about how tough it used to be.
Presumably, the discussion might also include transmitting records and receiving reports from QMEs electronically, but who knows?
Your humble blogger is all for this, of course.  However, we’ve seen more than one instance where government agencies and private insurers alike have accidentally released the personal and medical information of countless injured workers.
If, ultimately, insurers are required to respond to every IMR request by electronically transmitting medical records, who will be responsible for the security of the injured worker’s privacy?  Will paper-based insurers suddenly be required to update their systems and purchase security software?  What happens if the leak is on the side of the IMR vendor?
Hopefully this will be addressed at the meeting.
What do you folks think about allowing records to be transmitted electronically to QMEs?
My take is that there are a lot of benefits: save on paper; save on postage; save on time for the PQME to get the records (we already have a 20-day delay to allow opposing counsel to review the records before they go to the PQME); and, best of all, there is a very clear record of exactly what was sent to the PQME and when.
The downside is, of course, that we would likely see even larger PQME bills for document review.  Not every QME is going to print out the records sent, and might take a slow and methodical approach to reading all the records on the screen.
What are your thoughts, dear readers?  Would you like to see a rule requiring QMEs to accept records and reports in electronic format?  Would you like them to be required to transmit their reports via e-mail?
Have a good Monday!
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Another LEO Charged with WC Fraud

August 5th, 2015 No comments

Once again, dear readers – Quis custodiet ipsos custodes?

The Orange County District Attorney has announced that it has charged a Costa Mesa Police Officer with insurance fraud, claiming that he faked a work-injury of striking his fist against a wall during an arrest.  An internal investigation “uncovered evidence contradicting [the officer’s] account of how and when the injury occurred.”  Your humble blogger is declining to name names at this time, as this is only an accusation, and falls short of a conviction.

As noted on this blog a time or two, certain public employees, typically law enforcement officers and firefighters, hold a certain degree of public trust.  Only in a society as confused as ours, are workers’ compensation defense bloggers and attorneys not the pride of the population… To abuse that trust does a considerable amount of damage to society in general.

But, bitter cynic that your humble blogger is, he can’t help but wonder about two particular issues in such scenarios.

On more than one occasion, your humble blogger has met some resistance from law enforcement agencies in having obvious, obnoxious, and borderline heinous instances of fraud ignored – the damages are too small, the fraud not high-profile enough, etc., etc.  How often does a law enforcement agency decline to prosecute a person who steals from its coffers on those very grounds?

Furthermore, we obviously have instances of fraud on the part of law enforcement officers.  This blog has documented sheriff’s deputies, police officers, firefighters (pretend they enforce the law against fires), and CHP officers charged with and convicted or confessed to various forms of workers’ compensation fraud.  It is possible to be an officer of the law and steal from your employer (and the tax payers)!  Why, then, do we continue to offer so many presumptions to favor LEOs in workers’ compensation cases?  Nothing against cops or firefighters – of course there are some great folks in uniform that are honest, hard-working, and brave, but why the kid gloves and special treatment?

There are construction workers that are honest, hard-working, and brave.  There are lots of professions that expose people to dangerous conditions.  Even workers’ compensation defense attorneys can encounter danger from time to time (sometimes parties can react violently to not getting certain benefits, after all).

It’s obvious that the badge or the fire truck don’t make one a paragon of truth and justice – even the rotten ones get to play with the siren or shoot the water hose.

Perhaps we need more powerful lobbying groups – perhaps workers’ compensation defense attorneys should maneuver the legislature into various presumptions to favor our interests – such as conclusive presumptions that we’re handsome devils; witty and charming beyond contest; and when we turn to blogging, there is an irrefutable presumption that we’re humble.

Given the considerably disconcerting events involving law enforcement officers making the news lately, perhaps it’s time we departed from the hero-worship that leads congenital heart conditions to be found compensable and instead subject law enforcement officers’ claims to the same scrutiny as the common man – both as to the veracity of claims and the burden of proof in establishing compensability.

That is, of course, until the defense attorney lobby gets going and membership in the profession establishes a presumptively compensable psyche claim…

Power through, dear readers, your weekend is just around the corner!

Cop Pulls Over Donut Truck

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Be Careful How and Why You Defer UR…

August 3rd, 2015 No comments

Happy Monday, dear readers!

I bring to you the case of Millette v. 81 Grand holdings, Inc., a recent writ-denied case having to do with deferral of utilization review.  Applicant sustained an injury for which no denial was issued within 90 days of it being reported, and defendant provided neck surgery.  Following the surgery, various treating physicians requested several forms of treatment, all of which were deferred by the defense because “causation is in dispute.”

Applicant filed for an expedited hearing, and the WCJ awarded treatment, reasoning that California Code of Regulations section 9792.9.1(b) requires a “clear, concise, and appropriate explanation of the reason for the claims administrator’s dispute of liability for either the injury, claimed body part or parts, or the recommended treatment.”  The WCJ found that “causation is in dispute” did not satisfy the requirements of the regulation.

On reconsideration, defendant argued that this order would bypass utilization review, but the WCJ, in his report and recommendation, relied on subsection (D) of 9792.9.1, which provides that the injured employee may use “the dispute resolution process of the [WCAB].”

The WCAB denied reconsideration and the Court of Appeal denied review.

Of interest in this case is that defendant was put in a position where the injury was presumably compensable, as per Labor Code 5402(b) (“[i]f liability is not rejected within 90 days after the date the claim form is filed under Section 5401, the injury shall be presumed compensable under this division.”)  So, what is the defense basis for disputing causation?

Well, the injury itself was a trip-and-fall, resulting in injury to the neck and face.  But the RFAs were for treatment home care, a Foley catheter, a power wheel chair, and a urological consult.  If defendant is aware of pre-existing medical conditions that might create the need for this additional treatment, conceivably there would be valid grounds for whether the treatment is necessary specifically for the industrial injury.

But, it looks like a more concise explanation would be necessary to defer UR.  Perhaps further discovery would also be necessary prior to litigating the issue – defendants have the resources of a 4050 exam which can be used to cross-examine the treating physicians and even to guide and inform the cross-examination of a PQME on the issue of causation (your humble blogger will go toe-to-toe with anyone on Star Wars trivia, but might need some professional guidance when it comes to whether a neck surgery might cause urinary problems).

Defendants can subpoena prior treatment reports to show the need for these treatments existed prior to the industrial injury – perhaps an applicant’s private insurance records will include a denied request for such treatment predating the DOI?

In any case, dear readers, perhaps UR is a safe route to do as well?  After all, while section 9792.9.1 allows the disputes to be resolved through the WCAB, Dubon II allows no such disturbance from a timely and properly communicated UR report.  It might be worth the vendor fee and IMR bill.

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