Archive for December, 2016

Merry Christmas and Happy Hannukah!

December 25th, 2016 No comments

To my dear beloved readers – I wish you a Merry Christmas and a Happy Hannukah!

May this be a season of joy, rest, peace, and good health for each and everyone one of you, and may 2017 overwhelm you with success and good fortune.

As for the undersigned, I remain, even into 2017, your humble blogger.

Happy Holidays!


Categories: Uncategorized Tags:

Panel: 5th Amendment or Workers’ Comp Benefits – you can’t have both!

December 19th, 2016 No comments

Happy Monday, dear readers!

Most people with a TV set or a subscription to Netflix (let alone a basic education) are familiar with the concept of the 5th Amendment’s privilege against self-incrimination.  An accused cannot be compelled to offer testimony that might incriminate him or herself.

What happens when such a privilege is asserted in workers’ compensation matters?  Can the privilege against self-incrimination be asserted to avoid testifying at a deposition or hearing?  Can it be used to avoid submitting to a medical-legal examination?

In the matter of Smith v. Action Roofing, a panel case, presented such a situation.  Applicant sustained an admitted injury, but defendant alleged applicant committed fraud by engaging in softball during TTD periods, and lying about playing softball.  At some point, criminal charges were filed against applicant, and defendant sought to go to trial on its petition to dismiss based on fraud.

Applicant objected to proceeding to trial, arguing that as criminal charges were pending, applicant could not openly testify about the facts.

In denying applicant’s petition for removal of the order setting the sole issue for trial, the WCAB reasoned that “[d]efendant has a significant interest in proceeding expeditiously on its petition because defendant is continuing to pay benefits in this case and the continued payment of such benefits would be a significant burden if applicant’s workers’ compensation trial were stayed pending the resolution of criminal charges, which could take years… [a]lthough applicant has a significant interest in asserting his right against self-incrimination and applicant would be significantly burdened as such an assertion would create an adverse inference that applicant’s testimony would favor defendant, on the facts of this case applicant’s interest against self-incrimination is outweighed by defendant’s burden of continued payment of benefits and our constitutional mandate to resolve cases expeditiously.” (Emphasis belongs solely and exclusively to your humble blogger)

Now, I know this is only a panel case, dear readers, but it’s a wonderful result for the defense community.

Let’s put aside all the legal mumbo jumbo for a minute – one of two things is true: either applicant engaged in fraud or he didn’t.  If he did not engage in fraud, he can honestly and fairly testify about the facts of the case at his workers’ compensation proceeding without fear of any adverse effects on the criminal case.  However, if the injured worker must choose between engaging in perjury or self-incrimination, then, although the constitution might spare him a cell, perhaps he is not entitled to workers’ compensation benefits.

What’s the take-away for us?

Various privileges are asserted at deposition and trial.  Have you ever had an injured worker testify that he drove himself to the deposition, but then assert a privilege against self-incrimination when asked for a driver’s license?

Have you ever asked an injured worker if she has the right to work in the United States only to have the attorney instruct her not to answer based on 5th amendment privilege or privacy privilege?

Well, this panel case confirms other cases that allow for an adverse inference from asserting these privileges.

What’s more is that although incarceration is a basis for delaying resolution of workers’ compensation cases, pending criminal chargers are NOT grounds for delaying workers’ comp proceedings.  So if chargers are brought against an applicant, full speed ahead!

Now, it’s perfectly understandable that the more paranoid members of the applicant attorney bar will start crying out “injustice!”  They will see in their collective mind’s eye insurance companies pulling strings with their puppets in the prosecutor’s office to get rid of claims by having false charges brought against poor, defenseless workers.  Rubbish!

It is easier to have a camel pass through the eye of a needle than to get a case picked up by the district attorney or prosecution – probably because there are so many cases that merit prosecution!  The various prosecution offices receive funding from the defense community, but don’t kid yourself – it’s not a voluntary contribution.  The State of California takes what it wants from the employers and insurers and distributes it as it sees fit, often times to fund investigation and prosecution of employers and insurers!

Bottom line, dear folks – we should press this reasoning as much as possible to punish and discourage fraud.  There is no reason why an injured worker trying to decide between perjury and self-incrimination should be collecting benefits during his deliberations.

Categories: Uncategorized Tags:

Michigan Goes Driverless – A Trend is Your Friend!

December 16th, 2016 No comments

Bear with me dear readers – your humble blogger knows you’re only interested in news from California.  In fact, rumor has it that when some of you see a discussion on these hallowed pages regarding anything other than this great state, you may consider plugging your ears and going “la la la la la – I can’t hear  you – la la la la la” until the discussion returns to California.

This behavior is decidedly odd, of course, because this is a written publication, so you can really just not read it… there’s no sound involved…

Anyway, Governor Rich Snyder of the Great State of Michigan (although not as great as California) has signed into law a bill that would allow driverless cars on its roads.

Just think about it, dear readers – this process is happening and, absent a real-life Terminator-style scenario, more states are likely to follow suit.  In fact, given the inherent federal nature of roads and highways, it would not be surprising if, before long, there was a universal federal law in the United States permitting driverless cars.

The implications are astounding, of course – so many jobs would be automated.  Not only would the pool of labor being covered by workers’ compensation policies decrease, but we might see other benefits to the defense community: providing transportation for a worker to medical appointments, QME examinations, depositions… these things can get expensive.  Not every injured worker is willing to take Uber and get a reimbursement.

In those cases, how much cheaper will it be when a professional driver need not be hired for the day, but a driverless car can be dispatched?  Injured workers unable to drive will also have a cheaper claim for in-home care.

In the same way that once, long ago, the common mode of transportation was on horseback, and automotive ownership was an expensive luxury, perhaps owning cars and driving cars through human hands will be considered a skill-based luxury.

Have a good weekend!

Categories: Uncategorized Tags:

QMEs Must Do Exams in Person – No Emoticon Reports!

December 14th, 2016 No comments

Hello dear readers!

Your humble blogger bids you a very happy Wednesday, and hopes all is well in the world of the blog readers.

One of the wonderful charms of practicing workers’ compensation, at least in the San Francisco Bay Area, is that there appears to be a shortage of court reporters from time to time.  On a few occasions, y our humble blogger has observed trials and expedited hearings being postponed because no court reporter is available – sometimes none are present at all, and sometimes the only ones available are taken by other matters.

To relieve this pressure, the WCAB has started using remote court reporters with the aid of speaker phones and web cameras.  So your trial in San Francisco might be documented by a court reporter in Los Angeles or San Jose.  Fairly decent audio and visual technology has allowed an idle court reporter to fill a need in another part of the state.

As my readers will recall, the same technology, to a very limited extent, is being applied to address QMEs.  The issue of telemedicine was addressed briefly on this blog before but has come up again in Gonzales v. ABM Industries, where applicant declined to be examined by a QME using “telemedicine.”  From the case facts, it appears that the PQME would have examined applicant (presumably) by video and audio, with a local chiropractic QME to do the actual measurements.

Applicant sought to have the panel replaced on the grounds that without having the specific QME listed on the panel perform the face-to-face examination himself, he’s denied a meaningful choice from the panel.

The WCJ ruled that the telemedicine consent form allows applicant to refuse a QME exam through this means.  The WCAB denied removal.

So, just a few thoughts on this issue, dear readers:

How many applicants actually object to a pain management QME with an assist from a chiropractic QME?  Isn’t that an applicant’s dream team?  Perhaps there is more at work here than what is available from the facts of the case – if applicant is continuing to receive TTD benefits (remember, dear readers, that applicants already get practically full control over which PTP they will see), perhaps there is a tactical benefit to delaying the resolution of the file?  Just as easily, could a defendant decide to delay resolution of a file by objecting to telemedicine?

Additionally, while relief was sought on removal, aren’t panel disputes now valid grounds for reconsideration?

Finally, perhaps we need to revise the laws regulating medical-legal examinations.  If a QME exam really is conducted over both audio and video tools, how easy would it be to have the examination recorded?  Everything that was said (and everything that wasn’t said) would be evident to all parties, as would the actual results from any measurements taken.

Your humble blogger submits, once again, that there would be tremendous benefit to legitimately injured worker and the employers and insurers that pay all the bills to have such transparency.

Categories: Uncategorized Tags:

Panel Disputes Now Reconsideration Material (Instead of Removal?)

December 7th, 2016 No comments

Hello, dear readers!

It’s a wonderful day in the world of workers’ compensation.  Benefits are being denied, UR is being slowly but diligently upheld by IMR, and your humblest blogger has another blog post for you!

Today’s post is the case of Maciel v. RP Automotive, Inc., in which the WCJ ordered a new QME panel due to defendant’s alleged ex parte communication with the then-QME, only to recommend defendant’s petition for removal be granted on the basis that applicant’s counsel did not assume representation until after the letter in question had been sent, and said letter was sent to and received by the then-unrepresented applicant.  (Need another cup of coffee?  Basically, defendant copied in-prop-per applicant with a letter to the QME, applicant’s counsel gets retained and complains of ex-parte, WCJ determines that Order granting new panel should be rescinded).

Ok, everything is peachy, right? Why is that blogger guy wasting my precious internet time on this drivel when I could be looking at pictures of cats or researching how to handle a difficult doctor (the answer to that one, dear readers, is to bring a big bushel of apples to the doctor-depo!)

Defendant files for removal.  The WCAB reviews this and re-designates it a petition for reconsideration.  Are you getting this?

For years and years and years, many practitioners KNEW that QME panel disputes were NOT to be the basis of reconsideration petitions, and that the consequential delay in resolution and stripping the WCJ of jurisdiction, were effectively a bad-faith delay tactic.  Petitions filed petitions for “reconsideration and/or removal” and then sheepishly said “I dunno” and shrugged.

In fact, the WCAB panel held, en banc, that a dispute of a panel was proper for a petition for removal in Messele v. Pitco Foods, Inc (remember the one about how to count the first day for requesting a panel?)

Now, this panel of commissioners is opining that “[t]his requirement gives the opinions of the QME an elevated status that can be characterized as ‘critical’ to determination of the underlying issues in a case… From this perspective, a WCJ’s decision that resolves whether or not to allow a replacement QME panel in the determination of a critical issue, and a Petition for Reconsideration is the appropriate vehicle to challenge the determination.”

So, dear readers, what do you think?   Going forward, are you going to file petitions for reconsideration for panel disputes?  If nothing else, the Maciel opinion should be enough justification to avoid the imposition of sanctions for seeking reconsideration instead of removal.

Happy Hunting!

Categories: Uncategorized Tags: