Archive for January, 2017

School Employee Goes Down for Fraud

January 30th, 2017 No comments

Hello, my beloved readers!

Welcome back to another wonderful day in the world of Workers’ Compensation.  Your humble blogger brings you a story today… one might say I am even telling tales out of school. I bring you today the story of one John Heaton, who alleged an industrial injury in November of 2015, and was convicted this month of insurance fraud, thanks to the diligent efforts of the Stanislaus County DA.

Apparently, Mr. Heaton made “material representations” to a return to work specialist about his physical abilities after sustaining an alleged injury while employed by the Stanislaus Union School District.

Unfortunately, the Bee report does not provide details about his statements or, more importantly, how they were discovered to be false.

The sentence includes 30 days in jail and restitution of just over $8,000.

So, this is cause for speculation, but speaking only hypothetically, how would one prove fraud based on misrepresentations to a return to work specialist.

A couple of suggestions (some of them pretty obvious):

  1. Sub-Rosa – showing applicant engaged in physical activity which he allegedly could not perform;
  2. Social Media – Facebook, Instagram, and whatever else the kids are thumbing away at with their smart phones these days;
  3. Co-worker statements – often enough, this is the starting point in an investigation, where co-workers will hear (or overhear) about activities that don’t comport with why their colleague is getting a paid vacation while they are stuck covering extra shifts.

But the real trick is getting the case picked up by law enforcement.  Due to limited resources, the Department of Insurance and the District Attorneys’ offices can only prosecute so many cases, many of which will be prosecuting employers operating without insurance.

In any case, a hearty congratulations is owed to the Stanislaus County DA and to the school officials for diligently detecting, investigating, and ultimately prosecuting this case.

Alright, dear readers, back to work!

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What if Self-Driving Cars Reduced TTD?

January 27th, 2017 No comments

Alright dear readers, I know you’re probably tired of reading (and, for those of you who hear my voice in your minds because of the relentless persistence of my crackpot ideas, hearing) about how driver-less cars are going to put a lot of people out of work, I get it.

It only takes so many rabbit heads being mailed to my office before I understand I’m not supposed to blog about this stuff anymore.

So, for today’s post, I’m not going to gloat about how automation is going to put a lot of would-be applicants out of work.  No, no – let’s talk about the benefits of returning to work.

Returning an injured worker to duty – regular, modified, or alternative – is a wonderful thing.  On the practical side, that means an end to TTD; it means not having to pay PDAs; it means the injured worker might be reluctant to get a second, higher opinion on PD at the risk of getting enough work restrictions to lose his or her job.

But the benefits don’t stop there – ask any defense attorney with more than 5 minutes under his or her belt, and they’ll take you to that one file… the lingering, endless, multi-filing cabinet file.  The one where NOTHING can bring an end to the claim – the injured worker is in a self-perpetuated free-fall of despair.  Woe is me and now my other pink toe hurts too!

Just about any applicant could end up like that, if enough soul-less butcher doctors and ethic-less attorneys say the “victim” word to the applicant enough time while cashing in on his or her misery.

You know what helps minimize the risk of that happening?  Getting back to work.  It’s not just about the money, it’s not just about returning to normal (because, often times enough, it’s not normal – the injured worker will likely have residuals from the injury).  It’s about moving on from the trauma.

Well, I stumbled upon this story recently, which makes the point that, rather than self-driving cars eliminating jobs, self-driving cars will help people with disabilities overcome the hurdle of transportation that might otherwise keep them out of the job market.

The advantages on a workers’ comp file are pretty apparent as well.  Think of how much cheaper it would be to arrange transportation for a worker to attend a deposition or a medical appointment without having to pay a driver?  And, if you’re the insurer and the only reason you’re paying TTD is because the applicant can’t get to and from work because of the effects of the injury, wouldn’t you rather pay for a self-driving car to do this twice a day than pay for the TTD?

Now, I get it – there’s always the sceptic who was afraid of fire, afraid of the wheel, afraid of the T-800, and is now afraid of self-driving cars: they’re not safe, they’re not reliable, I wouldn’t trust a machine behind the wheel, what if I want to make small talk?

Well, look, here’s what we already know about cars driven by people: they still get into car accidents, and they’re expensive!  If you need a car for an hour, you’re paying for the whole day (or at least half a day).

If self-driving cars can get the applicants back to work sooner and cheaper, then your humble blogger is all for it.

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WCAB En Banc Clarifies Distinction Between “Communication” and “Information” when writing to AME (and QME)

January 25th, 2017 2 comments

Happy Wednesday, dear readers!

Yesterday, the WCAB issued an en banc decision in the case of Maxham v. California Department of Corrections and Rehabilitation, ruling on the issue of what constitutes a “communication” as opposed to “information.”

Generally speaking, Labor Code section 4062.3 provides breaks the universe into two piles: “information” (records prepared or maintained by the employee’s treating physicians; and medical and nonmedical records relevant to determination of the medical issue) and “communication,” which is everything that is NOT information as defined above.

Information which a party proposes to send to a QME must be served on the other side 20 days prior to providing the information to the QME; as for AMEs, subsection (c) provides that “as part of their agreement on an evaluator, the parties shall agree on what information is to be provided to the agreed medical evaluator.”

By contrast, “communication” must be served like information for a QME, if provided before the evaluation.  But communication with an AME can be sent at the same time it is sent to the other side.

So what happened in Maxham?  The parties were using 3 AMEs, and applicant sent advocacy letter’s defense counsel which were to go to the AME.  Over defendant’s timely objection, the advocacy letters were sent to the AMEs.

Litigation ensued.

Ultimately, the WCAB, en banc, held that a communication can become information if it contains, references, or encloses communication.   In the instant case, the commissioners noted that the advocacy letters referenced various stipulations and wards and other documents, but it was not clear if these documents had been agreed-to, and so sent the case back down for clarification.

The WCAB did note, however, that “[c]orrespondence engaging in ‘advocacy’ or asserting a ‘legal or factual position’ can, however, cross the line into ‘information if it has the effect of disclosing impermissible ‘information’ to the AME without explicitly containing, referencing, or enclosing it.  Misrepresentations of case law or legal holdings, engaging in sophistry regarding factual or legal issues, or misrepresentation of actual ‘information’ in a case are three ways in which a party might attempt to convey purported ‘information’ to a medical examiner to which the opposing party has not agreed.”

So, what’s the take-away?  Advocacy letters should be scrutinized carefully to ensure that the sender is not violating the 4062.3.  One way to do this is simply to send the letter to opposing counsel with the log and proposed records 20 days prior to providing everything to the QME.  But, when the other side makes an objection, be careful in sending it off over the other side’s objection.

And, of course, try your best to document what you are agreeing to when you agree to an AME.

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Earlier Treatment Reports Shift CT DOI Back to Pre-1/1/13

January 23rd, 2017 No comments

Happy Monday, dear readers!

You’ve survived another weekend after being cruelly pulled away from your precious files and typing out your gleeful denial letters by an amalgamation of religious observance, union activities, and human rights that gave you two days a week that are generally work free.

Well, don’t worry – I know you’re jonesing for a dose of workers’ comp and I’ve got a double for you.

Today’s post is about the panel decision in the Azurdia case (Azurdia v. International Union of Operating Engineers).

Everyone loves cumulative traumas – it allows California to stand out from most other states by declaring as industrial injuries that are sustained by all people through the course of their lives (some of which happens to be on the clock), it also allows us to revel in the fact that no matter what, any one of us could be sporting an industrial injury if we only enjoyed suffering so much as to subject ourselves to the workers’ comp system.

The tricky thing with CTs is, of course, is the date of injury.  Labor Code section 5412 provides that the date of injury is the coinciding of disability and knowledge of industrial causation.

In Azurdia, the WCJ found the date of injury to coincide with the report of the AME in this case, thus providing “knowledge.”  However, the WCAB reversed this conclusion, and picked an earlier date based on the fact that applicant reported symptoms to her primary care physician a few years earlier.

Defendant’s basis for seeking reconsideration, that the WCJ had increased PD based on  a compensable consequence psyche claim and had also increased PD by 15% for failure to make an offer of regular, modified, or alternative work, all on a post-1/1/13 claim.  However, the WCAB ruled that those contentions were moot when the date of injury was actually in 2011 based on the “knew” date of knowledge (did you see what I did there? Apparently, it’s called a pun…)

Anywho, the medical documentation provided applicant with an earlier date of injury, shifting the DOI from 2013 to 2011.

So some thoughts on this – the date of injury is pretty important, as you can see above.  Had defendant succeeded in establishing a post-1/1/13 date of injury, the PD value would have faced a whole lot of slashing.  What’s more, this is a CT, which means that liability shifts with coverage which shifts with the DOI.

The actual DOI is worth fighting for!

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Reconciliation; Death Benefits; and another Blast from the Past!

January 20th, 2017 No comments

Happy Friday, dear readers!

Your humble blogger was taking a look at Lexis’s Top 25 Noteworthy Panel Decisions, and came across the case of Woolever v. City of Long Beach.  Basically, the injured worker died as a result of an industrial injury, and the courageous gubmn’t swoops in with the Death Without Dependents Unit to hit the defendant up for $250,000.

Well, the injured worker’s ex-wife was presented by defendant as a dependent, and argued that the decedent provided court-ordered spousal support and additional support a well (loan forgiveness, gas, other necessities).  However, the WCJ and the WCAB both rejected defendant’s position because the decedent and his wife never reconciled after their divorce.

The WCAB opined that “[s]ince there was no reconciliation of the marriage of Applicant and the Deceased … and because Applicant and the Deceased did not live in the same household after they divorced and sold their home in the late 1990s, Applicant is not entitled to dependency death benefits on the basis of the financial support she received from the Deceased.”

Ok, so why am I boring you with this case?  Because it leads into a … [wait for it] … Blast from the Past!

Back in 1940, we got another case: Murry v. PG&E (5 CCC 4).  There, the decedent’s wife had obtained an interlocutory decree of divorce about a month before the industrial injury, and was thus obligated to pay $25 a month in alimony (presumably $422.37 in today’s dollars) and $25 a month in support of their son.  The decedent had time to make a single payment under the divorce decree before his injury.

Both the decedent’s ex-wife and his son were determined to be total dependents.

So, what’s the difference (other than about 75 years)?

Perhaps the ink was barely dry on the divorce decree in Murry and was ancient history in Woolever?  Perhaps the Murry decedent and applicant didn’t even have an opportunity to reconcile?

I dunno… I’m just a humble blogger.  Have a good weekend!

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New Lien Laws in Place – Swap Out the Checkbook for the Litigation Budget!

January 18th, 2017 1 comment

There are few things that make the frozen, black heart of a defense attorney hum with warmth and mirth.  The sound of a “take nothing” as it is retrieved from an enveloped from the WCAB; the smell of arrest warrants for workers’ compensation fraudsters; and, of course the inexplicably sweet atmosphere and ambiance of liens being mercilessly crushed underfoot.

2017 is the dawn of a new era for many reasons – from Washington, D.C., to San Francisco, a lot of stuff is going to be very different in the coming years.  Among them, even if not the most significant, is the treatment of liens.

I respectfully direct the attention of my cherished readers to the 2017 version of Labor Code section 4903.05.

Liens filed on or after 1/1/17 will require additional documentation, or suffer the sweetest justice of all: “dismissal of the lien with prejudice by operation of law.”  (Labor Code section 4903.05(c)(3).  And, just to make things interesting, it’s not only the post 1/1/17 liens – “[l]ien claimants shall have until July 1, 2017, to file a declaration pursuant to paragraph (1) for any lien claims filed before January 1, 2017.”  (4903.05(c)(2)).

So, what is it that will have to be declared, under penalty of perjury, for all liens, past and future?  Aside from declaring that the lien is not subject to independent bill review and/or UR, AND one of the following:

(A) Is the employee’s treating physician providing care through a medical provider network.

(B)  Is the agreed medical evaluator or qualified medical evaluator.

(C)  Has provided treatment authorized by the employer or claims administrator under Section 4610.

(D)  Has made a diligent search and determined that the employer does not have a medical provider network in place.

(E)  Has documentation that medical treatment has been neglected or unreasonably refused to the employee as provided by Section 4600.

(F)  Can show that the expense was incurred for an emergency medical condition, as defined by subdivision (b) of Section 1317.1 of the Health and Safety Code.

(G)  Is a certified interpreter rendering services during a medical-legal examination, a copy service providing medical-legal services, or has an expense allowed as a lien under rules adopted by the administrative director.

How many times have we had to deal with lien claimants that KNOW they are not in the MPN because this is lien number 3,561 as between Defendant A and Lien Claimant 1

How many times do we have to deal with lien claimants that subjectively understand that they are not entitled to reimbursement but think that they can get SOMETHING just for filing a lien and inflicting litigation costs on a defendant?

Well, those litigation costs might be disappearing soon – if the lien does not have the required declaration, under penalty of perjury, then it SHALL be dismissed by operation of law, with prejudice.  If it does have such a declaration, and you’re pretty sure that the declarant has committed perjury, list the declarant as a witness for trial or depose him or her – perhaps sanctions and costs will be ordered after the lie is exposed.

Current proposed regulations for section 10770.7 will operate to dismiss all liens filed prior to January 1, 2017, by operation of law, if there is no supplemental declaration filed with the WCAB on or before July 1, 2017.

To help lien claimants comply with these new rules, the DWC has prepared a form, but is appears to be only available to JET and e-filers, so it is not linked on here.

So, be wary, dear readers, and hold up this additional hoop for lien claimants to jump through before getting out your checkbook instead.  As for me, I feel that cold, dark heart of mine warming up already.

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WCAB Rules Facebook Profile Should Not Have Been Sent to PQME over AA’s Objection

January 16th, 2017 4 comments

Hey there dear readers – do you love surfing Facebook, Twitter, and all sorts of other social media?  Does your boss tell you that you can’t do that at work because it isn’t work?  That’s lame, maaaaaaan – a real drag!

Well, what if I told you that you can now combine business with pleasure and surf Facebook at work?

In a manner of speaking, if you’re looking to deal with your claims, you almost have to.

Facebook isn’t for college kids anymore – just about everyone and everyone’s mother is on it.  It’s not just for stalking ex-girlfriends and ex-boyfriends anymore either – folks promote their businesses on there.  They find business contacts.  In less professional fields, there is a pretty strong level of marketing and networking that goes on through Facebook groups.

The same is true, to some extent, for just about every other form of social media.

So what has your “injured” applicant been up to lately?  Is he starting a business? Is he competing in weightlifting competitions while on TTD?

What made me think of all this stuff (again) was a recent case that came up – Pecoraro  v. PT Gaming, a panel decision which has a whole lot of issues going on.

Applicant alleged a right shoulder injury as a CT.  After the parties selected a QME and set an evaluation date, defense counsel provided applicant with a cover letter, medical records log, Facebook profile, and sub rosa video which he intended to provide to the PQME.  As the panel opinion discusses, apparently, over applicant’s objection, defendant provided the Facebook profile to the QME.

Applicant then set a hearing and proceeded to trial on the issue, seeking to strike the PQME’s report and requesting a replacement panel.  The WCJ found no impermissible evidence was reviewed and denied applicant’s request for a new panel.  The petition for reconsideration followed.

After the recon petition, defense counsel appeared before the WCJ to walk through a C&R, presumably with applicant having dismissed his attorney.  The C&R was ordered approved by the WCJ and prompted a second petition for reconsideration.

The WCAB held that sending non-medical information to the PQME over applicant’s objection was a violation of Rule 35(d).  The finding that the PQME did NOT review impermissible documents was rescinded and the matter was returned “to the trial court for further proceedings consistent with the opinion.”

As to approving the C&R, the WCAB noted that the WCJ may have been stripped of jurisdiction to approve the C&R based on applicant’s first petition for reconsideration.   The WCAB also cast doubt on applicant’s dismissal of his attorney and ordered further discovery on this point.

So, a few thoughts on this one.

As to the panel issue, it seems like an objection to non-medical records being provided to a QME does warrant further review by a WCJ, but let’s look at the situation step by step.  If the defense provides objected-to records to the PQME, but the WCJ, at a subsequent hearing, rules that there is no basis to keep this information from the QME, what harm was done by sending the records?  If there is no harm done, why would the PQME be “poisoned”?

What’s more, what possible reason could there be to exclude an applicant’s Facebook profile from the eyes of the PQME?  When applicant shouts from the mountain-tops “X Y Z!” by posting it on Facebook, why can’t the QME review it?

As to the OAC&R, if an applicant has dismissed his attorney, the only possible reason to question this is to suggest that the defense attorney somehow engaged in fraud.  Are we SERIOUSLY getting to the point that we are accusing officers of the court of falsifying documents?  Does anyone think that a defense attorney would risk his career and his reputation (I’ve found that in a small community like Workers’ Compensation litigation, the two are one and the same) to get a single file closed?

And, of course, Facebook is a total goldmine for us.  Whether you decide to send the Facebook profile to the PQME over applicant’s objection or after getting an Order, this is a resource you should not overlook in every file that’s heading down litigation lane or represented road.

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Amazon Makes its First Drone Delivery!

January 13th, 2017 No comments

Happy Friday, dear readers!

Your humble blogger brings you a fascinating bit of news today that had me convinced it was fake until every major news source confirmed it:  Amazon has successfully made its first drone-only delivery.

According to this article from the NY Times the delivery was a test-drive which resulted in a 13-minute delay from order to delivery.  The video is very, very cool:

Now, this is just a test, and it occurred in Merry Old England, but imagine the implications here.  If this could be a regular thing for Amazon and its distribution centers in the United States, we’re looking at less demand for human labor, and lower costs for customers.

From what’s in the video, it looks like the weight limitation will be a very serious consideration for a while, and deliveries will continue to be made by humans.  However, this is a first step to automated delivery.  Eventually, heavier items will be delivered by flying drone (or driving drone) to the point where a growing segment of the current parcel delivery labor pool will be freed up for other work.

What does this mean for workers’ compensation? The same as the rest of it – the world that once called out for workers’ compensation laws as they rare is shrinking, and with it shrinks the relevancy of our beloved system.

Do you think, sometime soon, we will look up and see drones instead of the sky?  To quote Dienekes, then we will litigate in the shade.

Have a good weekend, dear readers!

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WCAB Finds “Ind. Contractor” Truck Driver to be Employee

January 11th, 2017 No comments

Hello, dear readers!

Your humble blogger brings you a post today about the wonderful topic of classifying workers as independent contractors vs. employees. Of course, prior to being hurt, many workers jump at the chance of being independent contractors – higher pay, the prospect of deducting various expenses from their taxes, and the ability to take on more than one client at a time… all of these are wonderful things!

But, like an offended child retroactively withdrawing an invitation to his or her birthday party (at the party, mind you), once injured, many workers want to claim that there was no agreement, no meeting of the minds, no basis upon which to rely on someone’s honor or good word.

Unfortunately, California is one of those states that is all too happy to disregard the intent of the parties at the start of the relationship.  Nor is California inclined to force former independent contractors to repay the extra money they were paid as compared to similarly situated employees.


Then again, you have other cases, where the facts suggest that the worker was an employee in everything but name.  Is it any less dishonorable to take a worker who is not sophisticated and educated in employee/independent-contractor classification and undercut competitors by unfairly classifying the worker at the employee’s expense?

In the case of Lozano v. Universal Logistics System, applicant claimed he was an employee and defendant raised the argument that he was actually an independent contractor.  Defendant argued that when applicant-truck-driver got into a traffic collision in 2014, he was carrying a load for defendant as an independent contractor because when he had first started working for defendant in 2006 he provided his own truck and could decline to take on loads.

But applicant testified that these terms changed in 2009 – he could no longer refuse loads and his truck could not comport with the emission laws for the port he visited.  He was apparently paid in his individual capacity and his checks showed deductions for various related expenses, including insurance and administrative fees.

The WCJ found applicant to be an employee, but defendant sought reconsideration arguing that (1) applicant interrupted his interpreter to answer questions, suggesting he didn’t need an interpreter; and (2) applicant’s testimony about who provided him with a vest (presumably one piece of a uniform) conflicted as to whether it was defendant or the Port where deliveries were sometimes made (or originated).

Ultimately, neither issue persuaded the commissioners to grant reconsideration.  The WCJ was rightly afforded a tremendous amount of weight on credibility issues, and given the state of the law and the natural presumption of a finding of employment, there was sufficient evidence in the record to conclude applicant was an employee.

Recall, if you will, that the applicant in Lozano was completely fine with the arrangement until he wasn’t.  From 2006 until 2014 it doesn’t appear there were any real complaints.  And you know how I know? Because he continued to do the job.

The dispute of independent contractor vs. employee is one that comes up with considerable regularity in California, and the defense needs to be prepared to offer thorough and fact-specific evidence of the relationship.  Simply put, mutual agreement at the outset of the relationship is not enough and employers would be wise, if they intend to retain the services of independent contractors, to properly document the relationship and give due regard to the Borello factors.

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Welcome Back! Some New Laws Effective 1/1/17

January 9th, 2017 No comments

Happy Monday, dear readers!

It looks like we are all, slowly but surely, returning mentally and physically from our holiday revelries.  Those fortunate souls who went on vacation are now returning refreshed and re-energized to their posts.  The intrepid souls that remained at work are ready to continue holding the line without missing a beat or being bogged down in catch-up duty.

2017 is here at last!

And here are a few things we can expect from 2017:

  1. Minimum Wage: California’s minimum wage has gone up yet again – from $10.00 to $10.50 per hour.
  2. Mileage Reimbursement: the IRS has reduced the mileage reimbursement rate from 54 cents per mile to 53.5.
  3. TTD Minimum and Maximum: The range of TTD is now from $175.88 to $1,172.57 per week (up from $169.26 to $1,128.43)
  4. Owner/Officer Comp Coverage: AB 2883 goes into effect, so owners and officers now need to provide additional documentation to be legally excluded from their policies (call your broker!)
  5. Medical Fraud Liens: AB1244 goes into effect, which will hopefully give a bit more teeth to the defense community in dealing with lien claims by parties convicted of various forms of insurance fraud.

There are others, of course, but hopefully those will raise a red flag in all of our minds about new issues to address in this year.  In particular, the new filing requirements for liens warrants its own post (stay tuned, dear readers)

In any case, dear readers, your humble blogger hopes that 2017 will be a year full of joy, peace, and success for all of us.

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