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Archive for February, 2017

Another LEO Goes Down for WC Fraud

February 27th, 2017 No comments

Happy Monday, dear readers!

Have you heard the news? There’s a horrible plague going around.  It’s a weird epidemic – law enforcement officers are going down for workers’ comp fraud!

Just last week your humble blogger brought you the story of Ryan Patrick Natividad, of the Costa Mesa Police Department.

Well, it appears that Nicholas Zappas, a former deputy of the Orange County Sheriff’s Office, the nameless individual featured on this blog back in November of 2016, has plead guilty to six misdemeanor counts of insurance fraud.

Sentencing includes six months    of jail time and three years of probation, as well as $34,838 in restitution and $1,000 to the Workers’ Compensation Fraud Assessment Fund.

His downfall was, of course, representing pretty limiting work restrictions to his doctor while engaging in cross-fit exercise.   14 years of service, 14 years of assisting in convictions, 14 years of building credibility and a reputation, all up in smoke to collect a bit of wage loss and be assigned to desk duty.

So, here’s something really interesting about this case – the injured worker was placed on modified duty and the employer was accommodating.  Despite this, something made the employer engage in an investigation.

In a lot of cases, if the employer is accommodating and there is no TD being paid (or very, very little) the fraud element goes to sleep. Perhaps this case serves as a reminder to us all that fraud doesn’t always set its sights on a big bag of money – sometimes the fraudsters are intent on flying under the radar and draining siphoning off the pool just a little bit.

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Cosa Mesa Cop Convicted of Fraud

February 22nd, 2017 No comments

Happy Wednesday, dear readers!

California workers’ compensation law provides a tempting target for assigning blame for non-industrial injuries.  The word of the applicant carries enough weight and the bar is so low that often enough, non-industrial injuries can be covered as if they were sustained in the service of an employer.

Well, sometimes these claims lead to workers’ compensation fraud investigations.

Back in July of 2015, the OC Register reported that Ryan Patrick Natividad , of the Costa Mesa Police Department, was charged with insurance fraud related to his September 2014 claim that he struck his first against a wall while transporting a prisoner.  As you know, your humble blogger does not like to name names based solely on accusations, so if this gentleman is being named, there’s more to this than pointing fingers.

Well, just recently, Mr. Natividad was convicted of insurance fraud.  It looks like applicant listed a jail employee witness to bolster his claim.  However, the employee then reviewed surveillance footage and discovered that no such incident occurred, and an investigation was launched.

Now, here’s a though – if you were arrested by Mr. Natividad at any point in his career or if Mr. Natividad provided witness testimony that led to your conviction, don’t you think now would be a good time to reopen your case based on Mr. Natividad’s now non-existent credibility?  Don’t you think that the government’s resources are going to be severely strained trying to answer this fresh wave of challenges based on this gentleman’s conduct?

The vast majority of people in California have nothing to do with the city of Costa Mesa, so what possible benefit is this story to the rest of us?

Whether prompted or not, the worker in this case listed a witness to bolster his claim.  Not only did the witness deny seeing this, but also took the affirmative step of finding video that disproved the claim.  The insurer also took the necessary steps to investigate the claim and prepare a referral to the district attorney.

Perhaps we could all learn from this – work areas would benefit from video recording.  The technology involved is not nearly as expensive as it once was, and the manpower necessary to review these videos is pretty small given that they would only be reviewed in the event that a claim was filed.  A lot of injuries will not benefit from video – the cumulative traumas, the off-site injuries, and the psyche claims, but the specific injuries should.

And, aside from justice being served, providing a basis to deny and fight workers’ compensation claims keeps an employer’s x-mod down, which might help recoup the costs of a simple camera installation.

So, what do you think, dear readers?  Is it worth putting cameras up all over the workforce in the hopes deterring or defeating workers’ comp claims?

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Happy Presidents’ Day!

February 20th, 2017 No comments

Your humble blogger greets you, dear readers, and hopes that your circumstances have allowed you to spend today at ease and at rest.  May the conditions of your life excuse you from the trials of working and the tribulations of shopping (no matter how appearing those sales are!).

If, for some unspeakable reason, you are actually reading this most humble posts, I’d like to appeal to you, especially those that happen to appear regularly at the Board, in the spirit of this holiday.

Civility folks please!

Since the events of last November, and especially the 20th of January, 2017, I’ve observed some pretty harsh words spoken at the Board about matters completely unrelated to workers’ compensation.

Membership in the workers’ compensation community is not monolithic as to politics, and there are attorneys, hearing representatives, adjusters, and lien claimants that fall all over the political spectrum.  With that in mind, I think we would all benefit if we tried our best to stick to the issues of our professional callings, rather than our personal musings.

No one should ever think that TD benefits are being denied because the applicant is a member of the Tea Party.  No one should think that settlement is being rejected because the defense attorney’s car has a Bernie Sanders sticker.

We’re all in this together, for better or for worse, and workers’ comp tends to be one of those little pockets of the law that is actually quiet bearable.

So, your humble blogger calls upon his patriotic and civilized readership… whatever the personal views of you or those around you, let’s do our best to make sure that, regardless of politics, the workers’ compensations system continues to work as it always has.

Till Wednesday, dear readers!

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Sudden and Extraordinary Proven by Applicant’s 12 Years of Experience

February 15th, 2017 No comments

Happy Wednesday dear readers!

Your humble blogger hopes you had a wonderful Valentines’ Day.  I used to be a real valentines’ day Grinch, but then I invested heavily in the flower cartels, the greeting card mob, and the chocolate teamsters, and now I’m all for it!

My favorite highlight from yesterday?  The Walter Sobcheck valentines rhymes (many thanks to Mr. KC). If you’re a fan of the Big Lebowski, take a look at #SobcheckValentines for a good chuckle.  For a bad chuckle, however, please proceed with this post.

Today’s post is about a recent panel decision, Guzman v. Carmel Valley Construction, SCIF.  The WCAB did not add much in denying defendant’s petition for reconsideration, but, fortunately for us all, your humble blogger has acquired the report and recommendation which lays out a lot of the facts and law.

The issue at hand was a crazy one – I mean it: applicant was alleging a psyche injury and defendant had raised the 6-month employment rule of Labor Code section 3208.3(d).  Although it appears uncontested that applicant was employed for a period shorter than six months, applicant alleged the mechanism of injury was sudden and extraordinary: while operating a soil compactor applicant hit a rock causing the soil compactor to fly up in the air and to land on applicant.

Applicant’s testimony was to the effect that in his 12 years of construction laborer work, he had used a soil compactor once per week, and he had never sustained an injury in those twelve years related to the soil compactor.  In fact, he subjectively never anticipated any risk of injury with a soil compactor.  The WCJ found that applicant’s injury was sustained as part of a sudden and extraordinary employment condition.

Because defendant offered no evidence of similar evince happening, let alone being commonplace, the WCJ relied on the uncontroverted testimony of applicant that he had never heard of such a thing happening in his 12 years in the industry.

This seems like a really good opportunity for the employer – the actual, insured, employer to assist.  The employer likely has several very seasoned managers and veterans in the industry who could advise on this point and probably reference prior cases involving OSHA or the workers’ compensation appeals board, even if out of California, to provide examples that these things do happen.

On the other hand, perhaps there really aren’t a lot of incidents out there.  Perhaps the safety manual for the soil compactor doesn’t cover this possibility.

Then, maybe, this really is an extraordinary event…

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No New Panels For Injuries Already Claimed at Time of First QME

February 13th, 2017 No comments

Howdy, dear readers!

Today I bring you the panel case of Parker v. DSC Logistics which everyone’s favorite topic was, again, litigated, appealed, and reversed.  That topic, of course, is what clogs up the Boards, runs up the billable hours, and makes workers’ comp such a busy bee-hive of activity: a panel dispute!

Applicant filed a claim alleging injury to the neck and back.  The claim was denied.  Applicant then filed two additional claims, one for a specific and another for a CT.  Although the dates of injury were different, the parties remained the same – same applicant, same employer, same insurer.

Defendant beat applicant to the punch, obtaining an orthopedic panel.  Applicant then underwent an exam with a QME from this first panel, and then requested two additional panels based on the two additional cases.

Defense counsel, not wanting to pay for two additional QME exams, have two additional opinions (from non-orthopedic panels) in the record, or delay the case to afford two additional medical practitioners to send each other letters competing over who can give the injured worker the highest rating of PD coupled with the lowest work restrictions.

So, away went the olive branches and out came the trail briefs of war – applicant presented a passionate case: MORE MONEY!  Defendant also presented a well-reasoned argument:  Navarro holds that you don’t get a new panel for every claim you allege, especially when a claim has already been filed and applicant was already seen by a QME.

The commissioners relied on section 4062.3(j) and 4064(a) for the proposition that the QME must address “all medical issues arising from all injuries reported on one or more claim forms.”

Accordingly, the commissioners interpreted Navarro to require applicant return to the same QME for all injuries already claimed at the time of the first examination.

Some thoughts here – why would applicant want additional QME examination?

First off, it is in applicant’s interest to make the claim as expensive as possible.  Why? Because the more pain an applicant can inflict on a defendant, even if the money does not go directly to the applicant, the more benefit the defendant sees in closing the file, increasing the justifiable settlement authority.

Additionally, with every single opinion entered into the equation, applicant creates more and more uncertainty as to which of the opinions would be adopted, as well as more grounds for appeal and delay of file closure.  If one’s case is weak, delay is a good thing, after all.

So, of course, this is a fairly good result for those brave practitioners on the defense side – outnumbered, if not outgunned by the applicants’ bar.

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How I Learned to Stop Worrying and Love Settling Vouchers

February 10th, 2017 No comments

Welcome, welcome, dear readers, to the end of yet another glorious week of workers’ compensation.

I thought I might relate to you, my skeptical followers that oscillate between amusement with my blog posts and frustration with their shameless oozing into your inboxes and computer screens, a recent hiccup in settling a case.

The ink was dry, the number was agreed to, and everyone was happy, but when the C&R was submitted for approval, there was one bump in the road that almost derailed the whole thing – the voucher.

As the entire claim was denied, and the parties were settling the case without a determination, one way or another, of AOE/COE, it seemed fair to have the issue of whether applicant was entitled to a voucher also left unresolved.

But the concern was voiced that the parties were, in effect, settling the voucher, which is expressly prohibited by Labor Code section 4658.7(g) (“Settlement or commutation of a claim for the supplemental job displacement benefit shall not be permitted…”)

In fact, your humble blogger has heard from more than one voice that some folks in the VR (that’s vocational rehabilitation, not virtual reality) industry have been filing ethics complaints against Judges who approve settlements without providing for a voucher as well.

In August of 2016, a panel of commissioners issued an opinion in Beltran v. Structural Steel Fabricators, in which a WCJ approved a C&R but also ordered that the voucher must be provided, even though there was a dispute about whether applicant was entitled to a voucher.  The panel reversed the order concerning the voucher and ordered the C&R approved in its original form – WITHOUT the voucher.

However, this panel decision is, of course, not binding, and some WCJs still have concerns.

Looking at the law itself, the Labor Code provides that “[i]f the injury causes permanent disability, the injured employee shall be entitled to a [voucher] … unless the employer makes an offer of regular modified, or alternative work…”  (Section 4658.7(b).)

Right away we see that a voucher may not be owed if the injury does not cause permanent disability.  Further, a voucher may not be owed if an offer of regular, modified, or alternative work is made in accordance with the law.  Finally, as the Court of Appeal ruled in Del Taco v. WCAB, “an injured employee is not entitled to vocational rehabilitation benefits where the employee is unable to return to work solely because of immigration status.”

And, most important of all, as contemplated in the Beltran case, when the claim is denied and there is a genuine dispute about causation or an affirmative defense, the parties should be able to settle the dispute with that green panacea, rather than litigating this issue like any other.

So, what’s to be done?  Well, first off, if you’re filing baseless ethics complaints against Judges because you’re unhappy with a reasonable and validated interpretation of the law in an effort to terrorize public magistrates into increasing your business – shame on you.

Second, we need to get an En Banc or Court of Appeal decision on this issue, and we need it soon.  I recognize that the $6,000 voucher doesn’t seem like a lot of money in the grand scheme of things, but having an extra year of keeping one’s file open on the off chance an applicant might use the voucher does.

And, if that’s not enough, the voucher entitles the applicant to a $5,000 payment from the “injured worker fund” and, guess what – that fund isn’t filled by the generosity of injured workers or the magic of good intentions.  Like all things in workers’ compensation, good or bad, willing or not, the funding is sucked out of the veins of California’s employers and insurers.  Accordingly, the less damage done there, the better.

Have a good weekend folks!

 

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WCAB Rules (Again) That 18-month SOL Applies to Post 7-1-13 Liens

February 8th, 2017 1 comment

Happy Wednesday, dear readers!

This week is moving just right along, isn’t it?  What better way to keep the momentum going than to talk about liens?

I know, I know, liens aren’t the most exciting topic in workers’ compensation.  Liens are the oatmeal-raisin cookie that you thought was chocolate chip – juts when you closed that file with dry ink on the Order Approving C&R, a whole bunch of liens come out of the wood work and your victory turns to ash (and you chocolate chip cookie turns out to be oatmeal raisin).

Well, here is something to soften the blow – recently the Court of Appeal denied lien claimant’s petition for a writ of review of the WCAB’s ruling in defendant’s favor.

The case is that of Paz v. Tech Flex.  The basic facts are simple enough – the lien claimant provided a series of services, the first of which was before July 1, 2013 and the last of which was after July 1, 2013.  So, which statute of limitations applies – three years or eighteen months?

Well, the panel cases all seem to say the same thing so far: if the last date of service was after July 1, 2013, then, pursuant to Labor Code section 4903.5(a), the 18-month rule applies.  This seems to be the holding in Escamilla v. Pelican Products, Inc., and the Paz panel came to the same conclusion.

The commissioners reasoned that because the new statute of limitation became effective January 1, 2013, so lien claimants had ample time to file their liens within the 18-month statute of limitations.

So what’s the take-away?  If the last date of service was provided before July 1, 2013, the lien claim is already barred – July 1, 2016 would have been the last day to file a lien.

By contrast, when the last date of service was provided after July 1, 2016, the eighteen month statute of limitations applies.

Unfortunately, your humble blogger still hasn’t seen any progress with arguing that any bills for dates of service provided more than 18 months prior to the filing of the lien are barred, but hope springs eternal.

Or rather, that’s the way the cookie crumbles.angry cookie

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Proposed AB 221 Would Limit CT Liens for Medical Treatment

February 6th, 2017 No comments

Happy  Monday, dear readers!

Your humble blogger brings you the story of a bill today – AB 221.

Now, although this is a bill and not an amendment, my steel-like discipline is typically reserved work workers’ compensation litigation, so I can hardly resist the urge to post one of my favorite Simpsons clips (though it has graced these humble pages many times before)

Assembly Bill 221, introduced by Assembly Member Adam Gray (D-Merced), would bolster the somewhat lack-luster defenses employers and insurers currently enjoy in fending off medical treatment bills related to cumulative trauma claims.

How often have you had to open a file for a CT with medical treatment liability already attaching in the thousands?  For years, an injured worker may have received treatment for a condition only to magically discover that the condition was industrially caused right around retirement, resignation, or sometimes even termination of employment.

In deposition, the timeline of the claim is typically “I self-diagnosed myself as needing more money, and then the doctor confirmed my diagnosis and advised it is industrially caused.”

AB 221 would amend the Labor Code in a fairly modest way, which is something a humble blogger can get behind without much difficulty: for claims filed after 1/1/18, the employer is not liable for any medical treatment bills unless the treatment was authorized by the employer, the injury is accepted, the WCAB finds the treatment compensable, or the employee has undergone a PQME exam which found the CT was caused by work.  (Proposed subsection (i) to LC section 4600).

Additionally, the C&R resolving the case would have to be for over $25,000 “exclusive of the cost of past and future medical treatment.”

If AB 221 becomes law, non-workers’ compensation health plans might suddenly have an interest in inquiring about or investigating potential industrial causation to avoid running up a huge treatment bill without a way to collect on it.  After all, an employer’s perfectly valid MPN is of little use when the claim is opened with most of the treatment already provided.

But, dear readers, picture this scenario – applicant files a CT claim but has received a healthy helping of treatment to date, and TTD is not really a pressing issue: subsequent employment, retirement, whatever else is negating the sudden need for TTD benefits.  So long as the claim is denied and the C&R properly documents that no more than $25,000 of the proceeds are for TD, PD, and (possibly) the voucher,  doesn’t it look like all those private health insurance liens are barred?

And, once the applicant has his check, how is the lien claimant going to get him to attend a QME exam?

Of course, presumably, the lien claimant could try to get reimbursement by proceeding with [proposed] section 4600(i)(3): “[t]he appeals board, after an evidentiary hearing or stipulation of the parties, finds the injury to the body part or body parts for which treatment was provided was compensable.”  But, in that case, aren’t you looking for a determination on AOE/COE?  If so, presumably, due process would entitle the defendant to request a panel and to defer a determination until a QME examination can be conducted.  Since the allegedly injured worker is unlikely to submit to a PQME examination, wouldn’t this defer resolution of this issue indefinitely?

Let’s keep an eye on AB 221, dear readers – it will be interesting to see how it evolves on its way to the Governor’s desk, if it gets there at all, and what we can expect to play with come 1/1/18.

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Do Robot Baristas Need WC Benefits Too?

February 3rd, 2017 1 comment

“What can I get started for you today?” asked the former art-major turned Starbucks barista.

“I’d like a medium-sized coffee please.” I responded.

“You mean a Tall?” I heard snarled back at me.

“A medium sized please.” I said back.

Our eyes locked, and in that moment, the rage of law school and political science classes; the hazy five and a half years of art history and philosophy classes boiled under each respect skin until it all broke loose:

“Can you get a TALL coffee started for this… gentleman?” yelled out the barista to his crew.

Maybe this exchange has happened to you, maybe not. It’s entirely possible that this didn’t even happen to your humble blogger, but with art mimicking life and life mimicking art, who can say anymore.

What’s important is that pretty soon, that might not happen to anyone.

Café X has opened in San Francisco, and has deployed a robot to take orders using a touchpad kiosk, and then deliver the coffee using an access code.

No more workers’ comp; no more overtime; no more lawsuits of the kind that employees can file against employers for a variety of abuses.

Obviously Café X, no matter how many kiosks it sets up in San Francisco or anywhere else, will still need human laborers – someone to refill the coffee and milk; someone to perform maintenance and repairs; someone to address issues of rent and contracts with other vendors.

But these jobs are ones that will have fewer injuries and fewer compliance costs, not to mention just be fewer in number.

Everywhere you look, the world as we know it is changing – your humble blogger asks the same question again, as is often prompted by such developments: is California’s workers’ comp system changing to keep up?

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AB206 to Increase Scope of Employees Covered by WC to Day Laborers

February 1st, 2017 No comments

Just imagine this, dear readers: you get home from a hard day of work, and you find your home has been infested with… you guessed it… tribbles!

As everyone knows, tribbles are wonderful, adorable, cute little creatures.  But boy do they multiply!

Here we see the film and stage star William Shatner who was faced with the same infestation many years ago.  He doesn’t look too happy, does he?

ST_TroubleWithTribbles

Well, this being more than enough work for one pair of hands, let’s say you hired help.  Because of the ability of tribbles to reproduce very quickly, it takes you and your hired set of hands 49 hours over several days to finally clear out every last one.

Just when you think your troubles are over, though, your VERY temporary worker hands you a claim form, explaining that all the bending over in picking up the tribbles, and the repetitive wrist movements of stroking them to keep them calm, has caused near permanent total disability.

Isn’t it nice to be able to rely on Labor Code section 3352(h) which specifically excludes from workers’ comp coverage temporary employees that work a total of less than 52 hours in the 90 days before the injury?

Well, the next victim of a tribble infestation, or really any short-term project, might not be so lucky.

Assembly Member Gonzalez Fletcher has recently introduced AB 206, which would eliminate the exemption described above.

As always, we must ask ourselves, cui bono? Who would benefit from day-laborers and short-term workers being able to file workers’ compensation suits?

Well, applicant attorneys, of course, as well as their horde of “doctors” who buy vacation homes off of unauthorized and unnecessary medical treatment.

But, being the cynical refugee from the Soviet Union that I am, there’s another reason for this law.  The State of California, and the various plaintiff associations and class action attorneys have tried to tackle the “gig” economy repeatedly.  These lawsuits frequently fail (or are in the slow, expensive, and fruitless process of failing).

What if someone from Task-Rabbit didn’t have to go up against Task-Rabbit and its army of lawyers?  What if the Task-Rabbit free-lancers could sue the homeowners they assist directly?  Without an insurance policy to cover them, there might not be enough resources to put up a real fight against a bogus claim.

But you know who is NOT going to benefit from this? The day laborer.  Right now, the day laborer has an advantage in the sale of his or her time and labor – lower costs because workers’ compensation insurance is not required.  However, how is a free-lancing day laborer supposed to compete against larger ventures that have regular employees and workers’ comp coverage?  Who will still hire day laborers and bear the risk of a workers comp claim, when the individual could hire a company with its own coverage and licenses?

But then again, California doesn’t ask the individual worker or the individual employer what they would like.  Just like California doesn’t ask business owners if they want to be forced to cover themselves with workers’ compensation.  Somehow, as businesses and employers in everything but high-tech continue to head for the exits, Sacramento still thinks it knows best.

Well, fine.  Good luck, Assemblymen and women, trying to find someone to help you deal with your trebbles.

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