Archive for October, 2015

COA: IMR, Early, On Time, or Late, is Constitutional!

October 30th, 2015 No comments

Good news, dear readers!

In case you hadn’t heard, the Court of Appeal, in the case of Stevens v. WCAB, has found California’s IMR process to be constitutional and valid.

In Stevens, a case touched upon a time or two by this most humble of blogs, applicant’s treating physician requested various medications to alleviate her pain stemming from an accepted injury, and also the services of a home health aide for 40 hours per week.  The request was denied by UR and the denial was confirmed by internal review.  Applicant then requested IMR which was also upheld the original UR denial.

The applicant then turned to the WCAB, but neither the WCJ nor the WCAB were of any help, ruling that there is no jurisdiction to invalidate the UR and IMR decision.

The Court of Appeal also ruled that IMR is constitutional.  After an excellent history of California’ workers’ compensation system and the recent reforms, the COA ruled that the Legislature, in its wisdom, put medical necessity determinations in the hands of physicians, and there is no violation of due process when the injured worker can still request review of non-scientific determinations.

Basically, if the doc got the facts wrong, the WCAB can swoop in and order a new IMR; if the doc got the facts right, neither Judges nor Commissioners are in a position to challenge the finding.

The Stevens opinion also discussed the fact that there is no mechanism for enforcing timeliness of IMR, essentially approving the Arrendondo holding.  (But, please note the Southard decision, where a split majority held that untimely IMR grants the WCAB authority to review and authorize medical treatment).  Stevens reasoned that “[w]e are unconvinced that the lack of a mechanism to enforce time limits renders the IMR process unconstitutional.  In the absence of a penalty, consequence, or contrary intent, a time limit is typically considered to be directory, and its violation does not require the invalidation of the action to which the time limit applies.”  (Page 26).

The question for practitioners at the Board in the coming months will be whether the COA’s opinion that a blow deadline doesn’t render IMR unconstitutional means that a blow deadline is not authority for the WCAB to take matters into its own hands.

It’s an interesting (but somewhat lengthy) read if you’ve got the time for it, but above are the main take-aways.

What’s next?  There are enough interested parties in this case that we can probably expect the Supreme Court to get a knock on its proverbial door soon enough (at times, your humble blogger wonders if the California Supreme Court will eventually overrule the entire workers’ comp system so that it can stop reviewing WC cases), but if the Justices will answer, your humble blogger can’t say.

For now, though, IMR continues to rule, and employers and insurers can continue to reap the benefits therefrom.

Have a great weekend, dear readers!

Please remember, folks, Saturday is Halloween – kids are out even after dark, so drive carefully!

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Why Elections (Against a Particular Defendant) Matter

October 28th, 2015 No comments

Hello, my beloved readers!

As we all squint at the sky, wondering how much rain we can expect in the days to come, I beg you to turn away for just a moment to review this blog post in the matter of Chanchavac v. LB Industries,  a panel decision recently denying applicant’s petition for removal.

This isn’t about any political election, of course.  It’s not even about that charming movie starring Matthew Broderick.

And Reese Witherspoon, of course…

It’s about an applicant’s right to elect against a particular defendant in a CT case.

The case is excellently summarized here by Lexis (Hat Tip to W.A.), but for those of you reluctant to bite the click-bait, I’ll run down the basis.  Applicant claimed a CT which covered more than one insurer.  Instead of electing against one particular defendant, as allowed in Labor Code section 5500.5(c), the applicant whispered “the more the merrier” and decided to keep everyone at the big-boy table.

Well, the folks sitting at the big-boy table couldn’t share or play nice, so each demanded a PQME, and each got one.  Applicant ended up having to submit to two panel QME examinations and having to tell her story twice.  Although she won the race against one defendant, securing a chiropractic panel, she lost against the other, and was forced to submit to an examination by an orthopedist.

The WCAB, after noting that a discovery order is not proper for reconsideration, also denied removal, reasoning that there is no proof of irreparable harm.

The Lexis editors do posit this question: can the original defendant, the one stuck with the chiropractic panel, now rely on the orthopedic panel QME’s report to defend against applicant’s claims?

I would direct your attention to Labor Code section 5703:  “The appeals board may receive as evidence either at or subsequent to a hearing, and use as proof of any fact in dispute, the following matters … (a) reports of attending or examining physicians… (g) Excerpts from expert testimony received by the appeals board upon similar issues of scientific fact in other cases and the prior decisions of the appeals board upon similar issues.”

Your humble blogger hasn’t had much opportunity to litigate section 5703, but it looks like there’s a basis here to use other QME reports pertaining to this injured worker as “examining physicians.”  It also looks like if you have a scientific question, such as “is carpal tunnel a genetic or congenital condition” you can cite testimony from QMEs in other cases opining that this is the case.  (Who wants to be a hero and try this out?)

In any case, dear readers, this is a good thing.  The more times the allegedly injured worker has to answer questions, the more opportunities for inconsistencies to become apparent and alternative causes to be discovered.  So cry litigation, and let slip the dogs of medical-legal evals!

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California To Develop Drug Formulary

October 26th, 2015 No comments

Happy Monday, dear readers!   As the title of this most humble of blog posts suggest, dear readers, Assembly Bill 1124 has been signed into law by Governor Brown.

AB 1124 would require the administrative director, by July 1, 2017, to establish a drug formulary for workers’ comp medication.  The basic idea of a formulary is to have a list of medications that are approved to be used in workers’ compensation treatment.   Some time ago, your humble blogger had submitted his own formulary to be considered by the Legislature, but I have yet to hear back on my proposal, which consisted mostly of dirt and Advil.

Just Rub Dirt On It

4600.1(a) requires a generic drug to be made available by a dispensing physician, but subsection (b) allows a nongeneric to be dispensed “[w]hen the prescribing physician specifically provides in writing that a nongeneric drug must be dispensed.”  Furthermore, subsection (d) states that “[n]othing in this section shall be construed to preclude a prescribing physician, who is also the dispensing physician, from dispensing a generic drug equivalent.”

Now, whenever laws like this get introduced, your humble blogger always cringes when there’s no method of enforcing them.  What nonsense is your humble blogger spouting now?  The fear of what’s to come, dear readers…

Well, look at the new section 5307.29(a): “the administrative director shall make provision for no less than quarterly updates to the drug formulary to allow the provision of all appropriate medications, including those new to the market.”  What happens when the administrative director doesn’t do this?

Can the doctors wait until Q2 and one day and say “pharmacy’s open, boys”?  Can lien claimants argue that because the administrative director failed to update the drug formulary, the treating physicians are no longer bound by 4600.1(a) and dispensaries can provide non-generic drugs?

Furthermore, what are we to do with section 4600.1(b)(2), allowing non-generic drugs to be dispensed “when the prescribing physician specifically provides in writing that a nongeneric drug must be dispensed”?  The whole point in the formulary is to save employers and insurers money, so what happens when doctors start stamping “non-generic” for no reason at all on every single prescription?  Recall, dear readers, the explanation is not required, just a written order for non-generic drugs.

For better or for worse, dear readers, the formulary is supposed to go into effect on July 1, 2017, and pre-7/1/17 injuries are to be phased in as well.  Other states have reported considerable success using formularies, most notably Texas and Washington.  Perhaps California will fare well too.

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CSIA Conference is Coming Up!

October 21st, 2015 No comments

Happy Wednesday, dear readers!

Halloween is coming up soon, and as we all know, there is nothing scarier than workers’ compensation! OOOOOOO … penalties… liens… OOOoooOOOooo!

Spooky, indeed, dear readers.

BUT, before you go a trickin’ and a treatin’ you may want to swing by Walnut Creek on Friday, October 30, 2015.

The California Self-Insurers Association is hosting its Fall Conference at the Walnut Creek Marriott and your humble blogger will be in attendance (now is your chance to finally vent about all the puns you’ve been forced to endure in your e-mail in box).

I’ve attended this one a few times in the past and it never disappoints – the speakers are always experienced with the substantive material and talented in their delivery; the subjects are current and interesting; and the bloggers in attendance are always as humble as humble goes.

Phil Millhollon, CSIA Executive President, says that one of the topics attendees can expect to be thoroughly discussed will be on an issue that’s been growing like a “weed” in California and the United States… medicinal marijuana (see what I did there? The kids call Marijuana “weed,” so…)

Marijuana has been a growing issue in California – federally illegal, but allowable on the state-side in certain circumstances.  Reimburseable under workers’ compensation or no?

If you’re going to be around, please stop by and say hello.

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Security Guard Goes Down For WC Fraud

October 19th, 2015 No comments

Hello, dear readers!

Your humble blogger greets you this Monday morning with some parenting advice: when your children want to rely on a security blanket, teach them early on that security is not a synonym for honesty or trustworthiness.  Don’t actually tell them that, dear readers, this is leading into a story…

Howard William Neel of Oroville in Butte County was recently sentenced to 1 year of jail time and three years of probation, following his felony fraud trial in connection with his workers’ compensation claims.

While working as a security guard, Convict Neel was filling the gas tank of his company vehicle, when a third-party bumped into the car slightly.  Neel claimed he was knocked down, hurting various body parts as his car “spun around.”  He then denied to his employer any related past injuries, even though he had complained to co-workers about back pain just a month prior, and had another workers’ compensation injury to the back about 10 years ago.

Investigators retrieved security footage from the gas station showing that convict Neel was never knocked down, nor did his car spin around.   Subsequent surveillance showed him using a cane to go to his doctors for treatment, and then not using his cane anywhere else, including when working with his horses.

Aside from the jail time and probation, the Gridley Herald reports that convict Neel’s matter has also been set for a restitution hearing in December, where prosecutors will seek an order to have Neil pay some or all of the costs of his claim back to his employer’s insurer.

Your humble blogger, as always, salutes the District Attorney’s office for pursuing this case and finding some small measure of justice for the employer.

Something, early on in this case, sparked a doubt and prompted an investigation of the case.  Security footage from a gas station was obtained; prior claims were researched; and sub rosa video was recorded to build a case.  Not every claim is met with such diligence – although more and more should.

Checking local security footage is a great start, so is carefully timed sub rosa.  Are you checking Facebook? LinkedIn?  Did you create a google alert to send you an e-mail when your injured worker’s name pops up somewhere on the internet?

Just some thoughts for my beloved readers this wonderful Monday Morning.  Chins up, folks, the week is just getting started.

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COA: 3 Training Days, 1 Game, and Subs. CA Employment Sufficient for Jurisdiction in Pro Sports Case

October 16th, 2015 No comments

COA: 3 Training Days, 1 Game, and Subs. CA Employment Sufficient for Jurisdiction in Pro Sports Case

In a recent Court of Appeal published decision, Knickerbockers v. WCAB, the Court of Appeal held that Mr. Macklin, a basketball player, had sufficient connection with California to pursue his workers’ compensation claim here.

Mr. Macklin claimed a CT injury for his basketball career between August of 1981 and November of 1985.  The facts reflected that Mr. Macklin attended three games in California during the CT time, and practiced in California the day before each of these three games, and played in two of the games.  So, depending on how you look at it, he “worked” from four to six days in California during the CT period.

In 1984, he then signed on with a California team and trained played with the Los Angeles Clippers until late October of 1984.

The WCJ concluded that California did have jurisdiction over the case and issued an award of 76% permanent disability.  The WCAB denied reconsideration, reasoning that there was a sufficient connection between California and the Knickerbockers because of its business dealings in California, and there was also sufficient connection between applicant and California, because he did work in California and he was later employed by a California team.

Nor did the Knicks get much help from the Court of Appeal.  Affirming the WCAB, the COA rejected the contention that applicant’s de minimis contacts with California preclude workers’ compensation jurisdiction.

Mini Me

Not this mini mis

The COA put particular weight on the fact that applicant played for a California team during the claimed CT period.  The Knicks answered, of course, that Labor Code section 5500.5 limits liability to the employers of the last year of the CT, and, in this case the Knicks were not the employers as of June 1984, and the CT period is through November of 1985.  The COA rejected this argument as well, reasoning that the distribution of liability is a different question – jurisdiction is at issue and California has it.  (That’s what you get for coming to California!  Next time, have your games and training seminars on a giant barge in international waters, with the California Coast on the distant horizon.  We’ll call it Water Basketball, and we’ll form nautical themed teams like the Sea-Raiders, the Sea-Giants, and the Sea-[other things]…)

Now, wait just a darn tootin minute!  Don’t we have AB 1309 setting some requirements for professional athletes to meet prior to using California as their butcher block?  In fact, I seem to recall something about requiring at least 20% of duty days be in California… Well, yes, that’s correct, of course.  BUT, subsection (h) limits applicability to those claims made AFTER September 15, 2013, so no help from the legislature for the Knicks here.

What’s the exposure to the Knicks here?  Well, the facts as related by the Court of Appeal opinion reflect that the CT is claimed through November 15, 1985, but the last date of employment appears to be October 24, 1984.  If the applicant successfully establishes his date of injury as the last day worked, being October 24, 1984, the exposure would cover all employers back through October 24, 1983, which would include the Knicks, starting on June 29, 1983 (so 93% of the CT period).

But, as the Court of Appeal pointed out, that’s not really before them at this time.

And so it goes, dear readers, and so it goes… have a great weekend! 

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AB 305 Dies on the Vine – Apportionment to Pregnancy to Continue

October 14th, 2015 No comments

Hello, dear readers!

Your humble blogger loves few things more than to bring good news to his fellow members of the workers’ compensation community, and today is one of those days.

Governor Brown has declined to sign Assembly Bill 305, which would have barred the workers’ compensation system from apportioning permanent disability to various physical conditions such as pregnancy and menopause.

“[T]his bill is based on a misunderstanding of the American Medical Association’s evidence-based standard, which is the foundation of the permanent disability ratings, and replaces it with an ill-defined and unscientific standard.”

This is a good thing, dear readers.  Don’t get me wrong – in your humble blogger’s ideal world, no one would ever get hurt.  But chipping away at apportionment is not the way to keep our state afloat, and it’s not the way to help employers keep California’s economy going.

Ultimately, this bill highlights a truth that we all know too well – life isn’t fair.  So, who is going to bear the burden of the unfairness?  The bill would shift the burden to the employer, and from where your humble blogger sits, the California employer has been burdened enough.

Kudos to you, Governor Brown.

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Doctor Accused of Letting His Physician’s Assistant Perform Surgeries

October 12th, 2015 No comments

Hello, dear readers!

It’s Monday, so it’s time for a lien check!  Check your lien files for Munir Uwaydah, M.D., the Southern California surgeon accused of having his physician’s assistant perform about 100 knee and shoulder surgeries on his own (while billing insurance companies for the services of a surgeon).

According to the LA times, prosecutors are alleging that 21 patients have claimed injuries as a result of Dr. Uwaydah’s clinic.

Assuming, for the sake of this most humble of blog posts, that everything alleged by the prosecutors is taken as true, then some or all of the surgeries billed to workers’ compensation insurers and employers should be rejected, no?

After all, an illegal surgery performed by an unlicensed and unqualified physician’s assistant is probably worth less than one performed by a licensed and qualified surgeon.  How much less? I would say, at least 100% less.

Lien claimants have the burden of proof in establishing that the services provided were actually performed and reimbursable.  If there is a conviction, how will Dr. Uwaydah or his clinics meet this burden?

A search for Munir Uwaydah on EAMS reflects about 4 pages of liens, one for $21,350.  Do you have one of these liens?  Or perhaps a claim out there that hasn’t been filed yet?

In any case, this is one to watch and is probably one worth fighting about.

Here’s another question to consider – if the permanent disability of the injured workers was increased due to these actions (again, assuming they are true as alleged), shouldn’t there be some third-party liability or subrogation?

I know, I know, dear readers, medical malpractice is not a valid ground for third-party reimbursement.  But this isn’t medical malpractice.  MM is when an otherwise licensed doctor doesn’t do a great job, to the point where other doctors are probably calling him or her out on it.

In this case, the damage was done not my a doctor who did not follow the proper standard of care, but by a physician’s assistant.  Aside from the fraud, there might be a criminal act here as the surgery would not be a battery based on the patient’s consent, and I doubt any of the patients said “that physician’s assistant looks pretty confident with that scalpel, let’s give him a try at cutting me up.”

Just things to  consider, dear readers.

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Former Prison Guard/Current Stage Actor Convicted of WC Fraud

October 9th, 2015 No comments

All the world’s a stage, dear readers, and all the men and women merely players; they have their exits and entrances, and one man in his time plays many parts.  I just came up with that on the fly, so if you see it anywhere else, remember to tell everyone that your humble blogger is brilliant.

Quite possibly a fan of Shakespeare himself, Hosea Morgan of Vallejo was just recently found guilty by a jury of his peers on charges of fraud.  Mr. Morgan became a correctional officer at San Quentin in 1985, and then became a prison counselor in 1995.  He complained of almost daily altercations, and, during a 2009 San Quentin riot he allegedly exacerbated his orthopedic injuries to various parts of his body.  Your humble blogger’s knowledge of prison stems primarily from the HBO show Oz, which, once seen, cannot be unseen… so viewer discretion is advised.

Someone faxed a copy of a flier to the adjuster for the insurer on this one.  What first looked like an invitation to a community play, turned out to have Mr. Morgan starring in a show where he would sing and dance.

The investigator dispatched by the insurer got to video-tape two of these performances, and also Mr. Morgan coaching his kids in basketball as well as activities at a health club.

Playing the prison guard, prison counselor, actor, coach… and now convict.  One man playing many parts in his time, indeed.

Now, your humble blogger has nothing but congratulations to the Solano County district attorney’s office for a successful prosecution.  Fraud is fraud and it should be stopped and punished.  That being said, it sounds like a miracle tip came in on the fax machine, which is great when it happens but not the most reliable method of investigating potentially fraudulent claims.

But, perhaps, there’s a way to cultivate these tip-offs.  A decent relationship between the employer and the employees can often work wonders for having extra eyes and ears on allegedly injured worker.

Have a good weekend, dear readers!

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Wash-out QME Report Excluded b/c of Failure to Deny within 90 days

October 7th, 2015 2 comments

Just last week, bright and early, your humble blogger submitted a request for a panel online and got one.  Pleasantly surprised, I find that the online system seems to be holding up, and perhaps my “chicken little” posts of the past were a bit unwarranted.

It’s a good thing, too, because defendants need all the time they can get, what with the 90-day denial period of Labor Code section 5402.  Take, for example, the recently writ denied case of Ramirez v. Osteria Coppa LLC.

The applicant was Mr. Ramirez’s widow, her husband having died following an industrial injury.  Although receiving initial notice of the claim less than 3 months after the date of injury, the panel opinion reflects that there was no denial issued.  Instead, applicant obtained a PQME report which found the injury was not industrially caused, and then proceeded to seek dismissal of the claim for death benefits.

Applicant objected, raising LC 5402 and claiming that, as the claim was not denied within 90 days, it was presumed compensable, and that presumption could only be rebutted by evidence that could not have been obtained during the first 90 days.

The WCAB found that nothing in the PQME’s report was information that could not have been obtained during those first 90 days of knowledge, and, so, his report was properly excluded.

This is a tough one – 90 days is not a lot of time in the grand scheme of things.  Let’s say that the adjuster has absolutely NOTHING to do all day, and is twiddling his or her thumbs when a claim comes in.  Out of sheer boredom, the adjuster takes a look at the file and decides it warrants some investigation, and issues a delay notice.

Sixteen days later, the adjuster can request a panel (see regulation 30(d)(1)); even if the adjuster gets the panel right away (as in, online) the strike or selection process can take another ten days (see section 4062.1 and 4062.2) or even 15 days so we’re now up to 26-31 days gone.  If the applicant decides to run out the clock the adjuster still has to wait 10 days to schedule the appointment, so now we’re up to 36-41 days.

As per regulation 31.5(a)(2), the QME has up to 60 days to schedule the appointment and another 30 days to issue the report (section 38(b)).  Well, it’s easy to find yourself past the 90-day mark, even with immediate and super-human diligence.

So what do you do?

If you have your doubts, perhaps you should consider denial pending the QME report.  In the long-run, that may be a safer way to go than to miss the 90-day denial window and then rely on rebutting the presumption with subsequently-acquired evidence.

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