WCDefenseCA

Well, dear readers, it’s Wednesday again!  As we see the spooky decorations going up and the wild-eyed excitement of children building up, your humble blogger has some advice for you.  Now, this advice is free, so bear that in mind before you put it into practice.

On Halloween, children will often ask for scary stories.  There is no surer way to give those kids an overdose of disappointment than to describe the horror and dread that is California’s workers’ compensation system. 

As a certified specialist in workers’ compensation, as a father, as an uncle, and as a person who is obsessed with all things workers comp (much to the annoyance of friends, family members, and random strangers on public transit) I can promise you that no matter how horrible or unfair or scary workers’ compensation is… the kids aren’t interested. 

So, rather than telling them about the horrors of “developing the record” or “this is just a benefits delivery system,” tell them instead about ghosts, werewolves, or even the pied piper.

But, since you have the misfortune of visiting the blog, I will share some workers’ comp stories with you, dear readers!

The case I bring to your attention today is that of Gonzalez v. Costco Wholesale.  Applicant claimed an orthopedic CT spanning about nine years while working as a warehouse stocker to the right wrist and low back.  He had several other orthopedic injuries as well, although those appear to be specific dates of injury rather than CTs.  In any case, he was evaluated by several QMEs, none of which found a CT to his right wrist and low back. 

His PTP however, DID find a CT to the low back and right wrist, and pointed out that other QMEs, including the QME that specifically saw applicant on his CT claim, did not appear to review the PTP’s reporting.  The WCJ at trial found that there was sufficient basis for finding a CT, and the WCAB upheld the WCJ’s opinion.

The WCAB also came down hard on the defense for accusing the PTP of bias without evidence, warning of possible sanctions for such claims.  Your humble blogger can’t help but wonder if evidence that the PTP is a member of Sam’s Club but not Costco be sufficient proof of bias against the defendant. 

The QME’s comments that “the patient is asked about the right wrist and hand and he has no complaints” was insufficient to find that there was no CT, in light of the PTPs documented complaints to those body parts over the past several months.

So, what do we take away from this, dear readers?  A benign examination with a QME is likely insufficient to prevail on AOE/COE in light of medical reporting to the contrary from the PTP.  Now, your humble blogger has no specific knowledge of the particular PTP in this case, but it is not hard to conceive of some PTPs, well versed in the workers’ compensation system, guiding the injured worker into reporting the symptoms that would be most beneficial to a case. 

Certainly, the majority of physicians would not do this, and the majority of injured workers would not do this either.  To some extent, there is sample bias amongst defense attorneys because most injuries don’t require an attorney at all – we tend to get the ones that are contentious.  But if that’s the theory – that the PTP is biased and is guiding applicant into reporting, some actual evidence is necessary to prove this point.

Often, TPAs and insurers can aggregate data to see who the problem doctors are – whether from overprescribing to cookie cutter complaints.  Further, discovery such as depositions, sub rosa, and rebuttal reports can also be used.  The QME should review all treatment reports and comment on them.  The QME should be deposed to ask how he or she explains the difference between the examination for med-legal purposes and the PTP’s reporting. 

Of course, the burden of proof on causation for an orthopedic injury, absent a presumption case, is on applicant.  But if applicant is going to trial with PTP reports, that burden can be carried.

Straight on till Friday, dear readers!