WCDefenseCA

It’s Friday, dear readers… but not just any Friday.  Today is Friday June 30, 2017, which makes tomorrow, July 1, 2017… the effective date for Labor Code section 4903.05(c) (well, the part of it that counts for this blogpost, anyway).

Labor Code section 4903.05 requires lien claimants to file certain additional declarations, but for those lien claimants that had already filed their liens prior to January 1, 2017, the Labor Code afforded an additional 6 months to file a supplemental declaration.

Those liens that do not have this supplemental declaration as of July 1, 2017, shall be dismissed with prejudice by operation of law.

So, if you come in to the office next week and have any liens that do not have the supplemental declarations are required by Labor Code section 4903.05, the lien is to be dismissed by operation of law.

Now, here are some thoughts to keep in mind as you try to sweep away any non-conforming liens.

July 1, 2017, is a Saturday.  As we all know, California Code of Regulations section 10508 provides that “[i]f the last day for exercising or performing any right or duty to act or respond falls on a weekend, or on a holiday for which the offices of the Board are closed, the act or response may be performed or exercised upon the next business day.”

Possibly, lien claimants have until Monday, July 3, 2017, to file supplemental declarations.  So, perhaps it may be prudent to return from the July 4^th Holiday on Wednesday and check the EAMS file then.

In any case, dear readers, if you’re taking a 4-day weekend, I hope you return from your revelry patriotic, safe, and ready to free yourselves from liens.

Happy Wednesday, dear readers!

The Workers’ Compensation Ethics Advisory Committee recently posted its report on complaints from 2016.  As is expected, the vast majority of the complaints filed by were employees not represented by counsel.

There were two complaints in particular that seemed to echo what some WCJs have mentioned about supplemental job displacement benefit vouchers.

As by now we all know, SB-863 prohibits the settlement of an injured workers’ supplemental job displacement benefit voucher.  However, as was held in the panel decision of Beltran, there are cases in which no voucher is due, and the case should be settled without the voucher being provided.

In the ethics report, the two complaints were from (1) a Return-to-Work counsel, and (2) a represented applicant.  In both cases, the review of the facts concluded that there was no ethical violation, but one can easily understand and appreciate the chilling effect such a complaint has against a WCJ.

I can see a bitter return-to-work counselor lashing out in the face of dwindling income, but what about the represented injured worker?  If the attorney failed to advise of the effect of the C&R, why not pursue an ethics complaint against the attorney or file a malpractice claim?  If the attorney did advise the injured worker that there would be no voucher, why accept the settlement?

We can only hope that the applicant’s attorney did not encourage the injured worker to file an ethics complaint for approval of a settlement to which the injured worker, under advice of counsel, agreed.

Hopefully, the fact that, in both cases ethics committee found no violations will reassure WCJs that they approve a C&R that does not provide a voucher when the facts call for it.

In the meantime, practitioners should continue to draft settlement paperwork with care – the parties are not settling the voucher but, instead, are entering into settlement without determining whether or not the injured worker has the right to a voucher.

Happy Monday, dear readers!

Back in the ol’ law school days, your humble blogger heard the claim that yoga should be barred from public schools on the grounds that it was a form of Hindu worship, and the separation of Church and State would mandate a separation of Yoga and Public School.

Whatever the merits of that particular claim, it appears that Yoga has a widespread secular use: as a form of exercise and health improvement.

Well, the news going around the internet now a-days is that there is yet another claim regarding Yoga: one study has found Yoga to be as effective for back pain as physical therapy.  As one reader, KC, points out, the benefit to Yoga as opposed to physical therapy is the psychological effect of social engagement – going to a Yoga class with other people probably minimizes the feeling of isolation one has when going through a workers’ compensation case.

Did Somebody Say Yoda?

Speaking only from anecdotal evidence, which, unlike the whims and fancies of your humble blogger, do not make a good basis for state-wide legislation, Yoga seems to help with back pain.  I’ve known several people who were motivated solely by the desire to relieve pain (and not by the pillage and plunder afforded by the workers’ compensation system) and regular Yoga classes helped the reach this goal, without the debilitating effects of opioids or the dangers of surgery.

Much like with medicinal marijuana, there doesn’t appear to be a framework, at this time, for the injured worker to receive Yoga sessions at the employer’s expense by right of law.  However, if both the employee and the employer are willing to try it, perhaps it might be prudent to invest a few hundred dollars to see if improves applicant’s pain and ability to return to work.

After all, despite the claims of some disgruntled participants in the workers’ compensation system, employers and insurers are not out to make the injured worker suffer, but are rational actors: if something is going to effectively reduce disability and return the applicant to the workforce, why not pursue it?

What do you think, dear readers – if physical therapy is proving ineffective, would you consider authorizing six sessions of Yoga on a trial basis?

Happy Friday, dear readers!

It looks like the hits just keep on coming for those not privileged enough to be members of the defense community.

The Department of Industrial Relations Newsline reports that Pasadena psychiatrist Jason Hui-Tek Yang has been suspended from participating in the workers’ comp system, pursuant to AB 1244.  The Newsline reports approximately $13.7 million in liens, so you may want to check your own liens before you get out that check book.

Although the report notes that Dr. Yang was convicted, his license on California’s BREEZE website reflects “renewed and current” and shows no signs of disciplinary history.

It looks like Dr. Yang primarily focused on victimizing defendants in southern California.  However, I bet if we all put our thinking caps on we could think of a few suspicious doctors up here as well.

With AB 1244 in effect, is there a sufficient monetary incentive for employers and insurers to devote more resources to investigating suspicious referrals?  After all, if you can throw a few thousand dollars into investigating a referral pattern and end up with a fortune in liens being disallowed, perhaps the game is worth the candle.

In any case, your humble blogger respectfully suggests you check your MPN and any pending liens, as well as any files involving Dr. Yang before you pay any more bills.

Have a good weekend!

Happy Wednesday, dear readers!

Still giddy and tickled pink from Monday’s blogpost, which I hope you enjoyed reading nearly as much as your humble blogger enjoyed writing, I bring you the matter of Garcia v. Federal Building Services, in which a WCJ’s dismissal of a lien claim for failure to appear at a lien conference was sustained by the WCAB.

The case in chief having resolved, a medical-treatment lien was filed for just under $10,000.  However, on the date of a lien conference, no lien representative was present.  The defense attorney tried to call around, but the lien claimant’s supposed representative advised that the assignment was rejected due to late referral.  With no one there, the WCJ issued a notice of intention to dismiss the lien (as per Regulation 10562).

When no objection was filed to the NOI, the lien was dismissed, and the lien claimant filed a petition for reconsideration, arguing that an objection was submitted (but apparently not labeled with the proper case number) and that the lien representative was present but forgot to sign in and was in another lien conference at the time the case was called.

The WCAB was not impressed.  Rejecting what it labeled as “the dog ate my homework” defense, the WCAB ruled that although a failure to appear may be forgiven, it doesn’t have to be and this relief is discretionary.

It also noted that the petition for reconsideration failed to explain who the actual representative was.  Your humble blogger will remind his beloved readers that under California Code of Regulation section 10774.5(e)(4) the notice of representation for a non-attorney representative must be signed by BOTH the lien claimant and its representative.  As per this Lexis blogpost, without such a signed notice of representation, the lien representative might be present, but the lien claimant might still have failed to appear.  

The WCAB panel also admonished the lien claimant that “the lien claimant’s mistakes have taxed the WCAB’s resources, and that noncompliance with WCAB Rules or bad faith actions may result in the imposition of sanctions.”

Well, true as that may be, lien claimant tactics also tax the resources of the insurers (which is a double tax, when you think about it, because the defendants pay the bills of the Workers’ Comp system to begin with!)

The bottom line is that someone decided to wait too long before given this case a proper assignment and proper attention, and a series of events followed which wasted Board resources.  The WCJ had to write a report and recommendation; the defendant had to write an Answer; the WCAB had to review the file and write an opinion.   All of these hours could have been better spent in more meaningful pursuits.

Now, I know, dear readers, that looking at this single case, it’s easy to shrug your shoulder and say “what-are-ya-gonna-do?” or “well, these things happen!”  This isn’t an isolated case.  I’ve seen lien reps sign in and then disappear for hours at a time.  I’ve seen lien reps insist on a hearing to drive up costs and then fail to appear, already focusing their gaze on negotiating the next lien with a threat of wasted attorney hours.  Requiring the lien filing fee is certainly a help, but perhaps additional deterrence to such casual disregard for the Board rules are warranted.

What do you think, dear readers?  Is you humble blogger being too tough on the intrepid lien claimants and their representatives?  Or this a game that is well known to all of us?

Happy Monday, dear readers!

The buzz around the interwebs recently is a press release from the Orange County District Attorney which has filed charges against 10 attorneys and a handful of “cappers” in a fraud scheme.

The attorneys involved are accused of paying a fee to a firm that would provide misleading information to injured workers, provide “free consultations,” and, after signing up clients, would subpoena records without attorney oversight or input, using companies owned by the capper enterprise.

It appears that a number of the targets for the alleged scheme did not speak English.  The District Attorney’s office is alleging that targets were “in predominantly Hispanic neighborhoods, businesses, swap meets, and the U.S.- Mexico border.”

At this point, these are all just accusations, and I’m sure the District Attorney will seek, discover, and do justice.

In the meantime, while your humble blogger would decline to name the accused, as they are, after all, just accused, I have no hesitation in naming the copy services alleged to be part of this scheme.

The district attorney has alleged that USA Photocopy, C & E Technology, Professional Document Management, and Providence Scheduling are all businesses owned by the alleged mastermind of the referral scheme.

If you’ve got liens pending from any of these outfits, it may be a good idea to look more closely at any relationships between the copy service and/or its owners on the one hand, and the attorneys listed on the DA’s office website on the other.

Happy Friday, o beloved readers of the humblest of blogs!

Whenever possible, your humble blogger likes to send his readers into the weekend with good news.  News that with lift spirits and calm nerves.  News that will allow his readers to relax and say “everything is going to be ok, I can leave my files at the office.”

Well, today is just one of those days!

I bring you the panel decision in the case of Austin v. Fresno Unified School District.  Applicant sought appeal of a take-nothing Order on two grounds: he argued that the 90-day presumption of Labor Code section 5402 required his claim to be found compensable and that the QME’s opinions were not substantial evidence because the QME failed to address apportionment and permanent disability.

Applicant claimed various injuries as a CT, and defendant accepted the claim.  However, after the PM&R QME found applicant’s injuries to be non-industrial in nature given the greater context of applicant’s other, non-industrial medical conditions, the defendant denied the claim.

At trial, the WCJ found that after a claim has been accepted, if new information comes to light, the defendant can subsequently deny the claim.

In affirming the WCJ’s take nothing, the WCAB cited Honeywell v. WCAB in finding that the 90 days of Labor Code section 5402 do not start to run until “a DWC-1 claim form [is] filed with the defendant.”  (Honeywell: “the 90-day period for the employer to deny liability runs only from the date the worker files a claim form with the employer.”)

As to the substance of the QME report, the WCAB held that because the QME already found that the injury was non-industrial, “the issues of permanent disability and apportionment are clearly irrelevant.”

Compare this result, of course, with the case of Ramirez v. Osteria Coppa LLC in which the WCJ and WCAB found that defendant’s failure to timely deny a claim invalidated a PQME’s finding of non-industrial causation later.

So, there you have it, dear readers – a PM&R QME found a claim non-industrial and the WCJ and WCAB adopted that opinion to issue a take-nothing.  Is this not cause for a weekend of celebration?

Happy Wednesday, dear readers!

You know, it strikes me that there is a perception amongst some members of our little workers’ compensation community that prosecution of workers’ compensation fraud is a bad thing.  Why are we hurting the poor workers who are just struggling to get by?

Well, prosecuting and deterring fraud is of a benefit to everyone, especially the worker considering engaging in fraud to pad his or her benefits.  The criminal prosecution and conviction can have serious consequences for the individual, ones that last much longer than any restitution or incarceration – a conviction puts one at a serious disadvantage when seeking later work.

In an unpublished decision, the Court of Appeal recently ruled in the criminal matter of People v. Snow, that even though her various statements that constituted perjury were all part of the same “material matter”, each false statement gives rise to separate convictions for each statement.

The facts are pretty simple – Snow alleged an injury to her wright wrist based on a CT, and claimed she was severely limited in her day-to-day activity, but then was caught by a sub rosa investigator carrying a 12-foot paddleboard 150 feet to the water, and then paddling out to sea, before returning and carrying the boat back to her car.

Subsequent sub rosa video showed Snow engaged in various other activities which she told her doctors, and testified at deposition, that she could not do.

Following her criminal trial, a jury convicted Snow on different counts of insurance fraud for the various statements she made.  She was sentenced to three years for each count, to be served concurrently.

The Court of Appeal rejected Snow’s argument, and found that each false statement, even though it was about the same subject matter, could form the basis of a separate count for prosecution and conviction purposes.

In this case, the sentences were to be served concurrently for each count, which means that the time applicant will serve is fairly limited (3 years, of which 1 will be mandatory supervision).  But the prospect of a possible consecutive sentence for other would-be fraudsters is a fairly good thing and should have some deterrent value.

There are so many instances where workers can exaggerate their symptoms and conceal their true causes, and then brag to co-workers about “winning the lottery.”  Cases such as these, where a fraudster is not only punished, but (thanks to Google) is effectively branded for future dealings, serve as a good counter-balance to the harvest of fraud.

Happy Monday, dear readers!

Your humble blogger is back for the moment, and brings you the rather bitter-sweet story of the case of Padilla v. Rio Farms LLC.

Now, other than “take nothing,” there is no sweeter sound emanating from a workers’ compensation file than “C&R.”  The thought of wrapping up all issues and washing your hands of a case is exhilarating.  And, of course, it lets us all focus on the real reason we got into workers’ compensation – lien resolution!

But the Order Approving C&R was just the start of the headaches in the Padilla case, rather than the end of them.

The parties reached a C&R agreement for the sum of $42,500, out of which EDD was to be paid $5,965.71 and the attorney was to be paid $6,375.00, leaving $30,159.29 for the applicant.  Although the C&R language provided that defendant would be entitled to credit for permanent disability advances, in the area provided to enter the amount advanced to date, the C&R reflected $0.

In issuing payment, defendant asserted a credit of PD advances in the sum of $11,020 to reduce the total C&R.  Applicant objected, claiming he was entitled to the full $30,159.29.

The matter proceeded to trial and the WCJ issued an order rejecting defendant’s claim for credit.  The WCAB denied defendant’s petition for reconsideration.

Relying on various provisions of the Civil Code, the WCAB commissioners noted that defendant failed to assert the PDAs to date at the time the C&R was drafted, and went so far as to list advances to date as $0 (rather than leaving the field blank).

This happens a lot, actually – sometimes the benefits printouts are stale, sometimes there is an oversight on the part of the adjuster, the attorney, or both.  What’s more, some applicants are looking at a C&R for “new money,” so updated information might have had zero impact in this case, as it does in many other cases: asserting a credit for PDAs in the sum of $11,020 might just drive up the price of a C&R by the same sum.

But here’s the fun part – no one is saying that applicant did NOT receive this money.  If he’s got the $11,020, then on what grounds is he keeping it?

In 2014, Prakashpalan v. Engstrom et al, the Court of Appeal defined unjust enrichment as follows: “[t]he theory of unjust enrichment requires one who acquires a benefit which may not justly be retained, to return either the thing or its equivalent to the aggrieved party so as not to be unjustly enriched.”  (citing Lectrodryer).

Well, doesn’t the same theory apply here?  Either applicant received permanent disability advances or he did not.  If he did receive advances, then should defendant receive credit for the moneys paid?  If he did not receive advances, then what were the sums he did receive?  Should the insurer have a free hand to pursue an unjust enrichment claim in civil court?  (The applicant might not have the money by the end of the lawsuit, which is a different story, of course).

In any case, this is a reminder to all of us that we should try to keep the lines of communication between the adjuster desk and the attorney desk as open as possible.

So, dear readers, does the file coming up for hearing have any advances on it?  Are you suuuuuuure?

Onward, dear readers, onward!