Archive for September, 2015

Panel QME System Goes Online Tomorrow!

September 30th, 2015 No comments

Hello, dear readers!  Are you excited? I’m excited… Online panel requests start tomorrow, and we get to watch it all unfold before our eager eyes!

Michael Jackson Popcorn

If you submitted any initial panel requests after September 3, 2015, you will probably be getting them bounced back sooner or later, because the Medical Unit is going digital!

If you haven’t already, you can watch the tutorial here.

Now, here are some things to keep in mind:

  1. No one has been able to submit a panel request since September 3, 2015, so there’s almost a month’s-worth of panel requests that will be hitting the system bright and early 8:00 a.m. on Monday. You know what that means right?  There’s a good chance the system will crash.
  2. When the system crashes – who wins? No one really – there will be endless litigation about what the result is of a panel dispute caused by a crashed system.   The pressure to use an AME will be greater than ever – will you determination hold firm?
  3. If the system does crash, there will be two categories of problems: those that submitted a panel request and didn’t get one; and those that can’t submit a panel request at all because the system is down. Where will you fall? How will you deal with it?

I shouldn’t joke too much, of course – I’m very happy to have workers’ compensation proceedings become more and more digital and electronic.  Once the system is running smoothly, we may enjoy the benefits of an instant panel, rather than a 3-week or 3-month turnaround time for a paper request.

Here’s hoping your panel submission goes smoothly, dear readers.

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COA: Dahl Reversed; Rehab Discussion Vital to Ogilvie Analysis

September 28th, 2015 No comments

Great news, dear readers!

Dahl, has been struck down!  The court of appeal, with a less-than-gentle manner, has cut short the hopes of many applicants’ attorneys hoping to “rebut” the Permanent Disability Rating Schedule and quickly inflate permanent disability.

Recently, the Court of Appeal issued its opinion in the matter of Contra Costa County v. WCAB/Dahl, rejecting the method used by applicant, her vocational rehabilitation expert, the WCJ and the WCAB.  If you’re in a rush, the basic holding is this: to rebut the PDRS, the injured worker must show that industrial injuries sustained in the instant case render the injured worker incapable of rehabilitation.  Further, although this is somewhat dicta, the Court of Appeal very strongly implied that it may be inappropriate to attempt to rebut the PDRS in cases where the alternative rating would result in less than permanent total disability.

Let’s back up real quick to lay the framework: back in 1983, the California Supreme Court held that an injured worker could rebut the permanent disability rating schedule by showing that he or she was not amenable to rehabilitation, and that the diminished future earnings capacity resulting from the industrial injury is greater than that which was accounted for in the PDRS.  The LeBoeuf court specifically held that the DFEC must be directly attributable to the employee’s work-related injury, and not to nonindustrial factors, such as the economy, language difficulties, or lack of education.

Fast forward to 2011, where the Court of Appeals holds that the PDRS can be rebutted if the injured worker’s injury impairs his or her rehabilitation, thereby causing a greater diminishment in the future earnings capacity.  Unfortunately, there wasn’t much guidance other than that, and litigation ensued on many fronts.

In the case of Dahl, the orthopedic injuries resulted in 59% permanent disability ($75,515), but the vocational rehabilitation expert’s opinions resulted in an award of 79% ($155,857.50 and a life pension of $73.44 per week, subject to COLA).  The methodology in this case was a hypothetical group of similarly situated workers (generated, somehow, by the vocational rehabilitation expert) and a determination that there would be a drastic drop in earnings.

The Court of Appeal rejected this approach, instead interpreting the Ogilvie decision to require a showing that the industrial factors of the injury (alone) prevented rehabilitation.  This was not shown to be the case in the Dahl matter.  Furthermore, the court specifically ruled that a rebuttal of the PDRS fails if it is based solely on the theory that the vocational rehabilitation expert has a “better” way of more accurately calculating the DFEC.

The Court of Appeal further rejected the idea that the failure of vocational rehabilitation to restore an injured worker to pre-injury earning capacity could rebut the PDRS.

Finally, the Court of Appeal, in dicta, noted that it was “skeptical of WCAB’s conclusion that an employee may invoke the second Ogilvie rebuttal method where the inability to rehabilitate results in less than a 100-percent permanent disability.”

So, what’s the take-away from this?  Let’s say you’re faced with an applicant’s attempt to rebut the schedule.  What about the industrial injury makes applicant not amenable to rehabilitation?  We’re living in the cyber-age people!  You can make a living swinging a hammer, driving a car, or at your computer.  Does immigration status impair the injured worker’s ability to earn money?  What about the language skills?  Is the fact that the injured worker coming to the table with a 3rd grade education or is illiterate making rehabilitation harder or impossible?

What’s more – what if the employer can offer work – regular, modified, or alternative duties – so long as the injured worker can legally accept the job?  Doesn’t that disprove any diminished future earnings?

Your humble blogger doesn’t expect the applicants’ bar to so easily abandon the potential goldmine here, and we will likely see more litigation on this front.  For now, though, dear readers, it looks like a win.

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TTD for Compensable Consequence Psyche cases?

September 21st, 2015 No comments

Happy Monday, dear readers!

Do you recall that crazy rant your humble blogger went on?  The one about the new psyche rules?  By way of recap, SB-863 amended the Labor Code to restrict psyche claims (see section 4660.1) to prevent increase in impairment for compensable consequence psyche claim, but to outline that medical treatment would still be allowed.  Thus far, the Labor Code has remained fairly silent on the question of temporary disability – if an injured worker can’t get an increase in permanent disability because of a compensable consequence psyche claim, but CAN get medical treatment… what’s the deal with temporary disability?

I bring you the case of Hernandez v. Fremont Bank and Federal Insurance, a recent panel decision that denied defendant’s petition for removal, adopting and incorporating the WCJ’s opinion.  The basic situation here was that applicant alleged a psyche injury following orthopedic injuries.  When applicant requested a psyche panel, defendant objected and a trial was had on whether or not applicant was entitled to a psyche panel.

Citing 4660.1, defendant argued that psyche injuries were no longer compensable.  By contrast, the WCJ noted that “the appropriate procedure to resolve a dispute over injury is to utilize the panel [QME] … [t]he fact that compensation for a permanent psychiatric impairment is not available to this injured worker does not deprive her of her potential right to medical care or, for that matter, temporary disability indemnity on a psychiatric basis.”

So, what’s the basis for allowing temporary disability based on a compensable consequence psyche claim?  The labor code speaks of disallowing permanent disability.  The labor code speaks of allowing medical treatment.  The Labor code is silent on temporary disability.

Your humble blogger, not unlike the weather-man who can tell you if it’s currently raining, anticipates that this might prove an issue going forward.  Due to the code’s silence on the issue, there’s a basis to deny temporary disability benefits for compensable consequence psyche injuries.

Practically speaking – it’s very important to know.  If a defendant’s potential liability for a psyche claim is limited to some psychiatric treatment or visits from a psychologist, it might not be worth the effort to resist the claim – in fact, visits with a psychologist or a psychiatrist, produce some interesting reports, and can often lead to discovery of prior injuries or claims, or subsequent employment that doesn’t come out (for one reason or another) at deposition.

On the other hand, if there’s potential for up to 104 weeks of temporary disability benefits (ranging from $17,603.04 to $117,356.72 for 2016 injuries), a defendant might have more incentive to fight the claim in its entirety – the panel disputes, the need for treatment, the liability for temporary disability benefits at all… as always, it is the uncertainty that does the damage to the billfold.

I guess we’ll see what happens, dear readers.

What’s your experience, so far?  Are you paying out TTD in compensable consequence psyche cases?  Or are you cowboying and cowgirling up and fighting TTD benefits tooth-and-nail?



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WCAB En Banc: +5 Days for IMR Appeal AND Panel Strike

September 18th, 2015 1 comment

Hello, dear readers!

A happy Friday to one and all!  Just yesterday, the WCAB issued an en banc ruling in the matter of Matute v. Los Angeles Unified School District.  Applicant had received an adverse IMR determination on November 6, 2014, and filed an appeal on December 10, 2014, exactly 34 days after the initial determination.  When the appeal was heard by a workers’ compensation Judge, it was ruled untimely because Labor Code section 4610.6(h) provides that “[a] determination of the administrative director pursuant to this section may be reviewed only by a verified appeal … served on all interested parties within 30 days of the date of mailing of the determination to the aggrieved employee or the aggrieved employer.”

The WCAB interpreted the term “mailing” as above, to mean “served by mail.”  Accordingly, the en banc opinion reversed the WCJ’s finding, as the WCJ started counting the 30 days from the date of mailing, without addition an additional 5 days for service, as per California Code of Civil Procedure section 1013(a).

Now, the basic point held in this opinion is that you get an extra five days on top of the 30 to appeal an IMR determination.  But that’s not the gem in this opinion, as far as your humble blogger is concerned.

The opinion can be applied to the panel strike process – do you have 10 days from the date of issuance of the panel to strike a name, or fifteen?  This blog commented on this post some time ago – practitioners had a writ denied case on one hand, telling them the 5-days don’t apply to panel strikes, and a panel decision from 2014 telling them that the 5-day period does apply.

Now, it appears, there is a binding en-banc approval of the holding that parties have an additional 5 days to contemplate and strike a name from a panel.  (See page 6, footnote 10).

Don’t get your humble blogger wrong, dear readers – this isn’t all bad or all good.  On the one hand, IMR tends to overwhelmingly uphold UR determinations, so giving an applicant an additional 5 days to appeal those decisions isn’t going to be a particularly good thing.  On the other hand, an IMR appeal can only really provide a second review to the applicant, which will still likely have the same result.  As for the 5-day application to the striking process, the extra time is not particularly important.  Most of us don’t take the full 10 days to decide who we want to strike from the panel.  But, the good thing is, there will be no more uncertainty on this point: now everyone knows exactly how much time you have to issue your strike, and the folks that issue their strike on day 14 don’t need to litigate the issue with the folks that issue their strikes on day 9.

On the subject of IMR, your humble blogger would much rather see an en banc confirmation that an IMR determination issued more than 45 days after the initial request is still valid and binding.  But, I guess your humble blogger will just have to wait, hope, and keep checking under the Soviet-non-religious-secular-new-years-tree.


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AB305 Headed to Guv; California Headed to Insanity

September 16th, 2015 No comments

Greetings, dear readers!

Do you ever sit back, with your feet on your desk, a fine scotch in your glass, and a puzzle dancing in your mind – why can’t we have nice things?  Well, dear reader, THIS IS WHY!

Assembly Bill 305 has passed both the Senate and the Assembly and is now headed for the Governor’s desk.  If signed into law, it would prevent apportionment of permanent disability to pregnancy, menopause, or, in the case of psychiatric injuries, sexual harassment, menopause, or pregnancy.

I’m sure the proponents of this bill see themselves as some sort of champions for the oppressed.  Certainly, it’s not fair that women face some difficulties not visited on men.  Surely, the world would be a better place if no one ever got hurt.  When people do get hurt, the world would be a better place if one’s sex did not exacerbate the burden such injury places on the injured.  Can’t we all think of ways the world could be a better place?

In fact, what we’re going to see is a further increase in the cost of labor in California.  Do you want to see the effect of such policies in the aggregate?  Take a look at data recently released by the IRS for 2012-2013.  California continues to see a dramatic decline in tax-generating population (and tax dollars as well).

What goes with these particular individuals, as they cross state lines? Jobs.  These are the jobs that generate revenue that keeps the government lights on and our absurdly horrible roads in one of California’s two favorite conditions – in need of repair or closed for repair.  California will continue to lose the jobs and services we all enjoy and rely on to other states (or to the abyss).

Or, we can look forward to having many of those jobs replaced by automation: Fast-Food will replace workers with kiosks; warehouses will replace workers with machines; even manufacturing will continue to go automated, as one company in Australia reported replacing 60 welders with 3 robots costing $150,000 each.  These results neither generate income tax revenue for state coffers, nor provide employment for humble bloggers of the workers’ compensation defense variety.

This insanity has to stop.  It is not unusual for California’s legislature to have absolutely no understanding of the difficulties faced by small businesses in keeping the lights on.  It is, however, a bit of a surprise that the same legislators are equally deaf to the difficulty labor is facing in finding work.  Minimum wage can be raised to $1,000 per hour, and PD benefits can be magnified 100 fold, but neither will benefits Californians who cannot find work.

Putting things in proportion, dear readers, I get it – the small increase this particular bill will cause in the cost of workers’ compensation coverage is not to blame for the difficulty that industries employing workers earning less than $100,000 per year are facing in California.  But, as stated before, it is a symptom of a disease, or, rather, a diseased mindset when it comes to how California functions.

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WCAB: IMR Need Not be Timely to be Binding

September 14th, 2015 No comments

Good Morning, dear readers!  Your humble blogger has missed you very much, and is so happy to be back on your screen and your e-mail in-box.  Just last week, as your humble blogger walked whistling to himself and thinking of more blog post to write, he was confronted with an angry crowd.  At first I thought it was a host of applicants’ attorneys, or possibly disgruntled lien claimants.  It actually turns out that a recent rage-a-holics anonymous meeting was abruptly cancelled because someone forgot to bring coffee and doughnuts, and your humble blogger just happened to be in the wrong place at the wrong time.

Freshly released from intensive care and after reading several notes that started apologizing and quickly escalated into threatening before calming down to apologizing again, your humble blogger is back and ready for action!

Today, I bring you the story that will warm the heart of anyone who loves IMR – the case of Arredondo v. Tri-Modal Distribution Services, Inc., recently denied review by the Court of Appeal.  Applicant’s case-in-chief was resolved via stipulated award with future medical care included, and, invoking this award, the primary treating physician requested authorization for medication, physical therapy, and a back brace.  Timely UR denied certification, and applicant appealed using the IMR process.  IMR, however, was not timely, having been requested on December 24, 2013, and only issuing an opinion on April 25, 2014, upholding the UR determination.

Applicant had scheduled an expedited hearing, and argued the IMR determination was invalid because it was untimely.  Labor Code section 4610.6(d) provides that “[t]he organization shall complete its review and make its determination in writing, and in layperson’s terms to the maximum extent practicable, within 30 days of the receipt of the request for review and supporting documentation…”  By contrast, between December 24, 2013 and April 25, 2014 there are 122 days which, pending confirmation from your humble blogger’s accountant, appears to be more than 30.

Following a trial, the WCJ concluded that the WCAB has no jurisdiction to overrule IMR based on an untimely determination, reasoning that 4610.6(g) makes an IMR determination binding on all parties, and, furthermore, the bases for appealing an IMR decision are listed in section 4610.6(h), but limits the remedy upon a successful appeal to a new IMR determination.

In considering applicant’s petition for reconsideration, the WCAB noted that the time limit for an IMR determination is actually up to 45 days – 15 days to provide the relevant information to IMR, and another 30 days after the information has been provided.   However, the WCAB affirmed the WCJ’s “determination that the WCAB does not have statutory authority to disregard the IMR determination in this case…”

Under the WCAB’s reasoning, the legislature, in enacting SB-863, meant to have medical treatment determinations made by medical professionals only.  Furthermore, the effect of the language of 4610.6(d) is meant to guide the IMR determination, rather than to invalidate the effect of the decision.  In other words, 4610.6(d) has no effect if it is disregarded.

One commissioner dissented, however, reasoning instead that IMR should be treated much like UR – if it fails to meet the timeliness requirements as laid out in the relevant statute, it loses its immunity from WCAB review and the issue of medical necessity should be resolved by the WCJ.

Does this issue seem at all familiar, dear readers?  Because your humble blogger provided a post back in June – Saunders v. Loma Linda University Medical Group – that addressed a similar issue.  In that case, a split panel found that an IMR determination that came in five months after the UR decision was referred to IMR was NOT timely and thus invalid, granting the WCAB jurisdiction to determine whether the requested treatment should be awarded.

So… what’s the answer, dear readers?  Does IMR have to come back no later than 45 days after the initial request?  Or, can IMR let the injured worker languish and wait for medical treatment?  The split in opinion between these two panel cases appears to provide a reasonable basis to seek reconsideration.

But, here’s a scenario for you to consider.  UR denies treatment and the injured worker requests IMR.  When IMR doesn’t come back two months later, the injured worker files for an expedited hearing.  The WCJ rules that, because IMR is untimely, the WCAB has jurisdiction to determine if medical treatment should be awarded as requested, but also concludes that the reasoning articulated in the UR determination is persuasive and declines to award medical treatment.  Applicant seeks reconsideration, and the WCAB reverses, awarding the medical treatment instead.  Has the defendant lost its opportunity to appeal the determination regarding jurisdiction?

Have a good week, dear readers!

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WCAB Issues NOI To Suspend Lien Rep’s WCAB Privileges

September 2nd, 2015 2 comments

Hello, dear readers!

Your humble blogger wants you to quickly check your calendar – do you have an upcoming lien conference or trial with Professional Lien Services, Inc.?  Well, about that…

In its first, and possibly only, En Banc decision of the year, the WCAB has issued a notice of intention to suspend appearance privileges of Professional Lien Services.  Back in August of 2013, a WCJ ordered Professional Lien Services to pay a court sanction of $1,000, and to pay the defense costs of $2,355, for “pursuing a trial on the issues of penalty and interest when it did not offer evidence at the trial adequate to meet its initial burden of proof.”

Two years later, despite repeated efforts by the WCAB and defendant to get paid, the sanctions remain unpaid, and the WCAB appears to have had enough.

How often do you have to deal with this, dear readers?  Have you ever had a lien claimant threaten a baseless trial for the sole purpose of getting the defense to run up its bills?  “Pay me, or you’ll have to pay your attorney and keep your file open.”

In any case, dear readers, if you do have a hearing with PLS, you might expect to get stood up.  On the other hand, this isn’t such a bad thing – if the lien claimant has to scramble to get a last-minute lien representative, it may not have time to satisfy the requirements of Rule 10774.5(e)(4), which requires a non-attorney lien representative to have a Notice of Representation signed by the lien claimant – without this, the defense could move for dismissal for failure to appear.

Lien Claimant Failed Appear Wayne Meme

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