WCDefenseCA

Are you ready for a post on IMR?  This is a good one, dear readers, because the Court of Appeal has, once again, upheld the IMR process as constitutional.  Not only that, the case of Zuniga v. WCAB was recently ordered published.

The facts aren’t particularly confusing and the ruling is pretty clear, but here’s a short summary.

Zuniga challenged an IMR determination as based on erroneous factual findings.  After prevailing on the challenge, the WCJ ordered a new IMR evaluation by a different reviewer.  However, the identity of the first reviewer (and the second reviewer) were kept secret.

Zuniga challenged the secrecy involved as a violation of due process, arguing that if he could not know the identity of the IMR reviewers, he could not, in fact, tell if the order of a new reviewer was being obeyed.

Basically, applicant was challenging the constitutionality of the IMR process as to keeping the identity of the IMR reviewers secret.  However, like every challenge to IMR to date, the Court of Appeal responded with a (now published) decision rejecting applicant’s arguments as to the constitutionality of IMR.

The COA reasoned that “confidentiality helps to ensure that IMR reviewers are independent and unbiased is reflected in an analysis of a proposed, but not adopted, change to the IMR process.”   Explaining further, the COA opinion cited Article XIV, section 4 of the California Constitution, that the Legislature is unlimited by the other provisions of the California Constitution to create and enforce a workers’ compensation system.  Thus, the due process clause of the California constitution does not limit the workers’ comp system (a fact that defendants, sadly, are all too familiar with).

The federal due process claim fails as well, as per the COA, because there is ample notice and opportunity to be heard, as per Stevens.

So IMR survives another challenge, and the defense community can rejoice as the UR/IMR process is probably the most effective cost containment win from SB-863.

That being said, your humble blogger has a hard time following the logic that leads to this result (as desirable of a result as this might be).  If the next reform found that the identity of Judges should be kept secret, would that be a due process violation?  After all, the parties can submit their arguments through trial briefs and the witness testimony can be video-recorded and provided to the Judge for review, and there will be no need for hearings because Judges can work remotely from the secrecy of their home offices… right?

Again, as desirable as this result is for the defense community (the IMR, not the secret judges – that’s just crazy talk), somehow this doesn’t pass the logic test on due process grounds.  Unless the party can independently confirm enforcement of the order or the rules involves (such as those requiring re-review by a NEW reviewer), how is compliance with the law to be confirmed?

Alright readers – we’re back! And I’ve got a GIANT story for you today!

Well, it’s a relatively quick story, but it does have to do with the Giants… in particular, a member of the Giants team engaged in workers’ compensation fraud.

Now, before you all lock shields against me for daring to impeach the honor of our beloved San Francisco Giants, you can all relax.  The fault, at least this time, lies with the New York Giants (but, in truth, the NY Giants are actually the victims of the fraud).

Marcus Buckley played for the New York Giants from 1993 to 2000, and then claimed a CT through January 2, 2000, for injuries to the head, neck, back, shoulders, and other body parts.  That case, set before the Anaheim WCAB, was resolved by way of C&R back in 2010.

However, according to this article, Mr. Buckley agreed to his $300,000 settlement and then proceeded to file additional false invoices and medical bills to get more money.  He ultimately collected about $1.5 million for these false bills before getting caught.

Now, if you’re thinking that the adjuster on the case must have been in on it to hand over so much money, you’re right.

(This one is from Star Wars – the Force Awakens; an apt image but a thoroughly disappointing film.  I challenge you, dear readers, to prove my appraisal wrong.)

Fortunately, Ms. Kimberly Jones of the TPA involved in this case also got a beautiful set of matching bracelets for her cooperation in this fraud, and is set to be sentenced in February.  Mr. Buckley has been sentenced to two years in prison and ordered to repay the money.

This is a particularly troublesome issue and one that carries the unfortunate sting of betrayal.  We can reasonably expect the thief to steal and the vandal to vandalize.  But such conduct besmirches the name of hardworking adjusters everywhere.

Your humble blogger is torn between wishing I could see how this pair was ultimately caught for my own education, but also realize that general dissemination of this information would make more clever thieves.

If nothing else, dear readers, this should be a reminder us all to be extra vigilant, sadly, from every vantage point.

Special Thanks to T.J.H. for sending me this article.

Applicant Attorney: “HAL – please maximize this injured workers’ permanent disability.”

HAL: “I’m sorry Dave, I can’t do that.”

Happy Friday, dear readers!  I bring you some interesting news direct from Japan but landing in the United States – Japanese company Cyberdyne has received FDA approval for limited use of its HAL for Medical Use.  What is HAL?  It’s not a malfunctioning robot on a spaceship determined to add tension and suspense to a movie or a book.  It’s the Hybrid Assistive Limb product that is supposed to help and speed up physical therapy by supporting the movements of injured patients and gradually allowing them to do more and more walking on their own.

So, are your physical therapy clinics using something like HAL?  Perhaps – but if you’ve got an inherent resistance to gimmicks and new technology (Wheels are round and confusing! Fire scaaaaares me!)  Practically speaking though, if this method can expedited the effects of physical therapy, we might be looking at fewer PT sessions being necessary, shorter TD periods, and lower PD… then perhaps it’s worth it?

From the point of view of the physical therapist clinic, perhaps such devices can have benefits as well.  Could the clinics that employ assistive robotics devices like this reduce the frequency of injury among their employees and physical therapists?

It truly is amazing watching the practical application of robotics and technology as it forces its way into our little swamp that is workers’ compensation.  Regularly enough we keep a wary eye on Sacramento and its periodic legislative reforms to upset all our most fundamental notions.  Now we must keep our other eye firmly trained on the Silicon Valleys of the world for those robotic and medical advances that rendered our laws moot.

Have a good weekend!

Happy Wednesday, dear readers… or, at least, it WOULD be if I had a better case to bring to your attention.

The matter is that of Sutter Solano Medical Center v. WCAB, a recent writ denied case.  The facts are fairly straight forward – applicant had an admitted injury to the neck.  Applicant’s PTP submitted an RFA for neck surgery, which Utilization Review denied.  Applicant then self-procured the medical treatment and demanded increased PD and TD resulting from the surgery.

If you are curious about the results of this issue, imagine your humble blogger’s normally grimacing face going into extra-grimace mode.  The WCJ and the WCAB both held that UR might shield defendant from liability for the medical procedure costs, but the resulting PD and TD claims are not defeated by Utilization Review.

In the immortal words of Pedro Chespirito, “no me gusta.”

The WCJ cited a 2009 panel decision (Barela v. Leprino Foods (ADJ3226482)) for the rule that UR does not bar PD or TD, only liability for medical treatment.

The panel added to the reasoning by noting that there are generally two methods of obtaining treatment.  That treatment provided by the employer, subject to UR and IMR, is held to the standard of being reasonably necessary to cure or relieve from the effects of the injury.  However, the panel noted that this standard is not applied to self-procured medical treatment.  Which, of course, your humble blogger reads to means that an injured worker can seek out and pay for unreasonable methods of treatment – and the unreasonable aspect of the treatment can both be as to the method and the risks involved.

The panel decision concludes by inviting the legislature to get involved if the legislative intent is to allow UR denials of medical treatment authorization to extend to resulting TD and PD.  As much as your humble blogger would like such a legislative amendment, in my limited experience, seeking legislation is poking the bear – the “reforms” that come from legislation end up create more litigation (which is great for defense attorneys like me!) but also creating more exceptions, loopholes, limitations, and harm for employers.

After all, the reform of SB-863 essentially enshrined Almaraz/Guzman as part of the law rather than repealing it.  And, even though Ogilvie is essentially dead for post 1/1/13 dates of injury with the elimination of diminished future earnings capacity, we now have a body of law holding that a “forceful blow”, like a slip-and-fall, is an act of violence.

Anywho, there is sufficient panel authority out there to support this conclusion, but, conceptually, your humble blogger has a hard time following the logic.  UR has made a determination that a particular method of treatment is not reasonably necessary.  If the applicant proceeds with this treatment isn’t it, legally speaking, unreasonable?

Additionally, why isn’t this being treated as the functional equivalent of a non-industrial injury?  Had applicant sustained another injury subsequent to being found P&S, even a non-industrial injury, wouldn’t we expect the evaluators to apportion accordingly?  If Applicant had X permanent disability before the surgery (or the pretend non-industrial injury) and now has Y permanent disability, shouldn’t her level of PD still be X?

One of the points of reasoning in reaching this conclusion was that the PTP and the AME both agreed that applicant’s surgery was necessary.  Isn’t that the point of UR – to determine if the treatment is thus?  AMEs are even prohibited from addressing matters reserved for UR and IMR, as per Labor Code section 4062.2(f).

In short, what is to prevent an employee from taking unnecessary medical treatment risks, and forcing the defendant to bear the costs of failed or even technically successful procedures?

In the instant case, applicant underwent a serious surgical procedure at her own expense, and the medical professionals involved, whatever the weight or relevance of their opinions as to the proceedings, reasonably opined that the procedure was necessary.

Now let your imagination wander away from this scenario and look at some… “other” forms of treatment.  In Ukraine (or, the Ukraine for my American friends) people are treated with radon baths for orthopedic injuries.  Would the resulting lung cancer and related benefits be the responsibility of a defendant?

I bet a little bit of google digging would find all sorts of… unusual… methods of treatment, including administering snake-bites, prolonged “faith healing” including refusal of any medicine in the interim, or exorcism.  Are defendants supposed to be on the hook for all the fallout from these things?  Believe me, dear readers, I have had cases where the PTP or QME decides that the radon baths are “reasonable” even though there was never an RFA, let alone UR and IMR.

So, what do you think, dear readers – is it worth it to open Pandora’s Box with new legislation on this?  Or is this a rarity and applicants will rarely self-procure?

Alrighty dear readers – another weekend down and another week is up.  Are you ready?

Now, come on, don’t be like that – before you know it retirement will be knocking on your door, and you’ll get to grumble about not getting to come into work anymore.

As the old song goes… enjoy yourself, enjoy yourself, it’s later than you think.

But, what if there were a way to combine the best parts of work and retirement?  Well, one retired LAPD Civilian Employee tried to do just that and is now facing charges for felony insurance fraud.

A certain criminal defendant, who remains nameless because there is no conviction, retired from his job with the LAPD, but an investigation revealed that he was not only exaggerating the extent of his disability, but also had secondary employment, all while (allegedly) receiving temporary disability benefits.

I think we’ll get more details about what happened, specifically, as time goes on.  We might also get some tips of how the alleged fraud was discovered.

In the meantime, we should all be reminded that we must remain constantly vigilant to make sure applicants are not getting benefits without justification – no matter how noble of a profession or calling the applicant had at the time of injury.

Now, back at it, dear readers!

Alright, dear, readers, it’s Friday.  You’ve made it once again.  And you are to be congratulated, of course.

You know, when a young man or a young woman sets out on a career in law, we are all prepared to see and hear various things.  We know we will meet people from different walks of life, bringing different cases to our attention.

That being said, there are still certain things that raise eyebrows, even among the seasoned members of the bar such as your humble blogger.

One of these things was recently discussed on Lexis, wherein a neurology PQME had concluded that because of an applicant’s “Negro blood” the PQME had certain expectations for the injured worker’s physique.  Of course, applicant’s counsel sought to strike the PQME’s report and the WCJ granted this request.  The commissioners concurred and the PQME’s reports were stricken and applicant was entitled to a replacement panel.

How, your humble blogger doesn’t like to name names, as we all know, but it’s not that hard to review the panel opinion and find the name of the QME.  I imagine that this particular PQME is going to have some difficulty in future cases where this history of apparent racial bias has been exposed.

However, that being said, we have another case out there – City of Jackson v. WCAB – wherein the Court of Appeal upheld a QME’s apportionment to previously asymptomatic genetic factors causing a spine condition (and/or worsening it).

Now, clearly, there’s a difference between identifying a genetic condition resulting in a more severe impact due to an injury and simple racial bias, relying on racial stereotypes instead of medical findings.

But, as anyone who has read a garden-variety medical-legal report will confirm, even the sharpest medical minds, the steadiest physician’s hands, and the nimblest surgeon’s fingers are of little assistance to the often unintelligible medical reports produced by these great healers and evaluators.

The instant case, Beecham v. Swift Transportation Services, is not decided wrongly.  That being said, it is a warning sign for all of us to make sure that, when necessary, we cure the record to avoid a tongue-tied QME from starting out explaining why a particular applicant’s multi-generational family history of high blood pressure resulted in the permanent disability caused by an industrially injury to be considerably worsened, and thus warranting apportionment… and ending up looking like he’s leading a Klan rally.

Have a good weekend, dear readers!

Happy Wednesday, dear readers!

Your humble blogger hopes you really did get Monday off, but, even if you didn’t, you work in the illustrious field of workers’ compensation – isn’t every day like a vacation?

Right.

Well, allow me to bring you this Pina colada of a blog post to enjoy during your proverbial day at the beach of denying benefits and arguing with lien claimants.

Today’s post is on the case of Minarik v. Del Taco, a somewhat recent panel decision and now writ denied claim, in which the WCJ and WCAB held that injuries sustained en-route to an AME exam on an accepted case were compensable consequences of the underlying injury.

Applicant Minarik was involved in an MVA on her way back from an AME appointment for an admitted injury.  She claimed the injuries sustained as a result of her MVA to be a compensable consequence of her industrial claim, which the defendant naturally disputed.  Defendant relied on Rodriguez v. WCAB, a 1994 Court of Appeal decision which held that injuries sustained from the litigation process were not compensable consequences. In Rodriguez, applicant claimed a compensable consequence psyche injury as a result of the termination of vocational rehabilitation benefits, which the Court of Appeal rejected in that the litigation process is not AOE/COE.

On a personal note, I, as a brave, courageous, and very modest workers’ compensation defense attorney, can attest that the workers’ comp litigation process does give rise to psychiatric injury… at least to the attorneys involved… how often does a father see his child scrape his knee on the playground and involuntarily mutter something like “non-industrial” or “off-duty recreational activity”?

The Defendant also relied on the panel decision in Evans v. San Joaquin Regional Transit District, a 2014 panel decision in which the commissioners rejected applicant’s argument that injuries arising out of an MVA which occurred en route to medical-legal appointment because the medical-legal exam was part of the litigation process for a contested claim.

Well, neither of these cases seemed persuasive to the WCJ or the WCAB commissioners in Minarik.  The WCJ reasoned that because Minarik involved an accepted claim, the medical-legal appointment was more akin to the medical (as in, medical treatment) rather than to the legal (as in, litigation process).

Relying instead on Laines v. WCAB, where the Court of Appeal held, in 1975, that injuries sustained en route to medical treatment are compensable, the WCJ distinguished Rodrigeuz because the compensable consequence injury in that case was psychiatric, whereas in Minarik, the injury claimed was orthopedic.  The WCAB further distinguished the Evans panel case because that case was denied, while the Minarik claim was already accepted.

Naturally, your humble blogger does not like this result?  If we draw a distinction, as the WCAB panel appears to do, between a medical-legal exam to determine AOE/COE and one to determine the extent of permanent disability or the need for further medical treatment, does that mean that injuries sustained to the WCAB for a hearing on those issues should also be held compensable?

If applicant is claiming an entitlement to TTD benefits and is in an MVA on the way to an expedited hearing, should the defendant be liable because the “litigation process” is limited only to AOE/COE determinations and not to nature and extent of benefits owed?  Should applicants be able to claim a cumulative trauma from all the driving they’ve done to their medical appointments?

Members of the defense community, especially those that have been around through more than one reform, tend to comment with some frustration that the scope of employers’ and insurers’ obligations continues to grow.

The one silver lining from this, and it is so thin you have to squint to see it, is that perhaps defendants can use this case to bolster control of medical treatment.  Sometimes applicants challenge the validity of an MPN because there is an insufficient number of doctors within the 30-mile mark of the applicant’s residence or employment site.  However, other times, applicants seek to treat with physicians 40 or 50 miles away when there are plenty of physicians much closer.

The potential for exposure for injuries sustained en route to these far-off treatment locations presents an argument for denying PTP requests for far-away physicians.

Happy Monday, dear readers, and happy Martin Luther King Jr. Day!

Martin Luther King Jr. Day is observed on the third Monday of every January and is a state holiday (at least in California), so, aside from whatever personal observance we might plan, California Rules of Court 1.10, any due date or deadline from today is extended until the next working day, or tomorrow, January 16, 2018.

Now, bear in mind, dear readers, although the courts may be closed today, a lot of folks are still going to be in the office.  I know of some depositions set to go forward today and plenty of employers who are not giving their employees the day off.

For that reason, it’s always important to rely on the official court holiday list to determine if the last day to take a particular action (file an appeal, file an answer, request a panel, etc.) must be done on that day.

For example, did you work on December 31, 2017?  Well, it’s not a holiday according to the courts – only New Year’s Day is (January 1, 2018).

Whenever there seems to be a split in your social and professional circles about whether something is a holiday or not, your humble blogger respectfully suggests you confer with the court calendar to make sure you really do have the day off!

In any case, happy Martin Luther King Jr. day!

Alright, dear readers, you remember the story of those Orange County Deputies that sustained serious injuries at the Las Vegas shooting?

Well, Orange County denied their claims on the theory that the injuries were sustained while outside of California, and thus non-compensable.

Well, Assemblyman Tom Daly has introduced an amendment to Labor Code section 3600.2 to include injuries sustained by law enforcement officers within or out of the state (Assembly Bill 1749).

If signed into law, hopefully the fears expressed in this case – that law enforcement officers would hesitate to spring into action while out of the state – would be dispelled.

Here’s hoping that 2018 sees a legislature that is sensitive to the snags and issues we face in the workers’ compensation world and gives us prompt (and thoughtful) amendments to the law.

Hello my beloved readers! And a very, very happy 2018 to you!

Your humble blogger is back, at least for now,

So what’s new in 2018?  Well, here are a few things to look out for.

Minimum wage in California has gone up (of course!) and is now $10.50 ($11.00 for employers with more than 25 employees).  Now, bear in mind, in some places, like your humble blogger’s own, beloved San Mateo County, the minimum wage is as high as $13.50 per hour.  If you have a minimum wage employee currently on temporary disability, there’s a good chance you’ll see a demand for an increased rate.

Speaking of the TTD rate, as the State Average Weekly Wage saw a 3.6% increase, going from $1,164.51 to $1,206.92, anyone paying life pensions may want to calculate an increase based on COLA.

There’s also an increase in the TTD minimum, from $175.88 to $182.29.

What are you hoping to see in 2018? (let’s be realistic folks – from the litigation and legislation cookeries).

My wish list for 2018 includes:

1. Some binding authority that vocational rehabilitation experts are irrelevant for post 1/1/13 injuries, as diminished future earning capacity is not part of the permanent disability equation;
2. A reversal of the recent legal trend recognizing any “forceful blow” or any slip-and-fall as a violent act triggering liability for psychiatric compensable consequence disability (permanent OR temporary); and
3. The birth of a new trend in which the medical unit issues panels with three doctors that set timely (I know this is a long-shot, but we can dream, can’t we?)

But, post important of all, I think we should all find 2018 to be full of success, good health, and happiness.

Let’s get to work!