Orange County DA Goes After Capper Network

June 12th, 2017 No comments

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.

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WCAB: No Need To Discuss PD or Apportionment After Finding Non-Industrial Causation

June 9th, 2017 No comments

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?

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COA: Each False Statement Can Be A Sep. Fraud Count

June 7th, 2017 No comments

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.

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WCAB: Advances Not Listed on C&R Are Waived

June 5th, 2017 No comments

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!

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 Exo-Skeletons and The Shrinking of the Comp World!

May 19th, 2017 No comments


Alright, dear readers, we made it.  Friday is finally here and your humble blogger brings you an interesting bit of development in the world of the working man (and woman).

Apparently our good friends at Lowes are testing out exoskeletons for their employees to help with lifting.  These suits are reportedly very comfortable and, as described by one user, “it feels like this heavy thing is much less heavy.”

The basic idea is that when the worker bends down, the exoskeleton contracts under the tension, and the force applied when he or she starts straightening up (with the heavy object in hand) makes lifting that much easier.

Presumably, if Lowes applies this to its various stores and warehouses, it might see a decrease in back strains.

Likewise, your humble blogger stumbled upon this YouTube video of Lockheed Martin’s employees using exoskeletons to “make 30-pound items weightless.”

The video is pretty cool and worth the two minutes to watch but if you’re too busy for that, the basic gist is that the suit makes standing and holding a 36-pound tool easy.  The employee using it described needing to take far fewer breaks and having the work itself considerably easier to do.

The basic idea is that if you one were to run the numbers on how much your average back sprain costs from the DWC-1 to the Order Approving Compromise and Release, at least some employers are finding the exoskeleton to be a worthwhile investment.

Furthermore, thinking outside of the workers’ comp box for a little while (I know it’s hard, dear readers, but try just this one time for your humble blogger’s sake) pre-injury, presumably, the employer likes the employee and would rather not lose him or her, right?  After all, if the employee isn’t worth the wages, why not fire and replace?

Well, perhaps safety tools like these are an affordable middle step between paying for workers’ comp injuries and automating the work-force with robots.

Alright, so back inside the workers’ comp box: what will be the impact of using such tools?  I imagine that a lot of the medical evaluators and PTPs are going to have to become acquainted with the effect of such tools such as patient lifts in hospitals and exoskeletons in the industrial sphere to be able to adequately comment on causation.

If your typical QME is used to saying that life in general is a cumulative trauma, so everyone has a CT, he or she will have to explain why there is a CT to the back when the exoskeleton does all the lifting.  Without an understanding of how the technology works, and how little strain there actually is on the person, will such reports be open to attacks of not constituting substantial evidence?

If you do have an employee claiming a CT despite using such assistive devices, shouldn’t the QME have to review a report from an ergonomics expert about how these machines work and how much weight is absorbed by the machine itself?

Call me Chicken Little all you like, dear readers (go ahead, your humble blogger has been called far worse!) but I certainly see our little swamp of Workers’ Compensation being drained a bit and our world shrinking, as technology allows employers to apply money previously earmarked for what some call the “blue collar lotto” to keep their employees healthy and productive.

Have a good weekend!

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LC 4615 – Check DIR Website For Stayed Liens!

May 17th, 2017 No comments

Happy Wednesday, dear reader!

Do you have a moment to read about Labor Code section 4615?  Well, as I’m sure you’ve heard of Occam’s Razor, perhaps section 4615 will be WorkComp’s hammer.

Basically, 4615 holds that if there’s a lien by a physician or provider of medical treatment, both collection and litigation of that lien will be stayed if criminal charges for fraud have been filed against the lien claimant.

So, in the past, when your humble blogger was assigned a lien to deal with, he would visit the rhyming online to see what rhymes with the lien claimant’s name, thereby enabling me to make cruel school-yard jokes at the lien conference to wear down my opponent’s resolve.

Now, a much more effective, if less satisfying, tool is available: the Department of Industrial Relations, as per Labor Code section 4615, keeps a running list of any medical providers charged with fraud in California.

So, if you’ve got a lien or even a bill, check the list before making payment.

Now here’s a thought – can section 4615 be read in such a way that prevents the filing of a lien by a medical provider charged with fraud?  It would be great if it could, because preventing the lien from being filed within 18 months of the last date of service gives rise to the statute of limitations defense of Labor Code section 4903.5.  Unfortunately, the plain reading of the law addresses “[a]ny lien filed…” suggesting that it only kicks in once a lien has already been filed.

That being said – this is workers’ compensation, and reading the law in a way to prohibit the filing of a lien by a provider charged with fraud would not be the craziest way of interpreting the law that any of us have seen.

Anywho, dear readers, your humble blogger hopes you use the 4615 hammer effectively – Smashy Smashy!

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COA Rules on Rescission of Coverage

May 15th, 2017 No comments

Happy Monday, dear readers!

A while back, your humble blogger reported on the Berrios v. EJ Distribution Corporation.  In that case, the employer had obtained insurance coverage with the understanding that its employee truck drivers do not operate outside of California.  Of course, applicant sustained injury while operating outside of California, and the insurance company sought to rescind coverage and avoid liability for the claim.

The arbitrator found that the insurance company could NOT retroactively rescind coverage, but could only cancel coverage going forward and sue for damages.  The WCAB affirmed, so the matter went before the Court of Appeal.

Well, the Court of Appeal issued its unpublished ruling recently, and, due to the Herculean efforts of counsel for the insurance company, obtained a remand.

The question in this case is and always was – what happens when an insurance company alleges that a policy was obtained by false statements by the employer, and an injury occurs under said policy?  The insurance company, of course, wants to rescind the policy, refund the premiums, and be no its way.  The employer, fearful of being left in the cold, wants to let the insurance company pay for everything and then spin its wheels coming after the employer.

The Court of Appeal’s opinion cited Insurance Code 650 and Civil Code section 1692 for the proposition that the policy could be rescinded.

However, the Court of Appeal also held that the insurance company missed a vital step in the rescission process.  While the first step appeared to be completed correctly, that is, notifying the insured of the rescission and returning or offering to return the premiums, there is a second step:

“[t]he thought that performing the acts set forth in Civil Code section 1961 effectively discharged [the insurer’s] obligations under the contract is incorrect.  A judgment finding that [the insurer]’s rescission was effective following an action filed to enforce the rescission under Civil Code section 1692, on the other hand, would be the discharge that [the insurer] seeks.”

Ultimately, the Court of Appeal remanded this matter back to the trial level to consider rescission under these two code sections.  While the original arbitrator ruled, and the WCAB affirmed, that the insurance company could not rescind its policy, the Court of Appeal disagreed and appears to rule that for the rescission to be complete, the insurance company has to take the issue to trial on the issue of whether the rescission was for a valid reason. (See California Civil Code section 1689).

So, now, the matter should be submitted to arbitration to determine, as a matter of fact, if the misrepresentations made in this case were material “determined not by the event, but solely by the probable and reasonable influence of the facts upon the party to whom the communication is due, in forming his estimate of the disadvantages of the proposed contract or in making his inquiries.”  (Section 334, as cited by the Court).

In summarizing the facts, the Court of Appeal’s opinion makes reference to the insurer’s investigator discovering that prior to obtaining coverage, the employer was operating outside of California.

But let’s take a hypothetical case – what if the employer did NOT operate outside of California at the time of obtaining coverage, but started to do so due to a new business opportunity, but did not advise the insured?  If the statements were true when they were made, and subsequent events made these statements “stale”, would rescission be as easy to effect defend?

These issues come up often enough – the employer might say the number on the floor is a six, the insurer might see it as a nine, but when an employee trips on the number and files a claim, the last thing the employer wants is to discover it’s given an interest free loan in premiums to its insurer, and then have to address a claim.

six and nine croped

This is an interesting case and I’m hoping to find out how it ends as the reasoning will be relied upon for subsequent matters, even if it can’t be cited.

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IW Failed To Carry Burden on TD Even After Second Bite at the Apple

Happy Monday, dear readers!

Your humble blogger brings you a recent panel decision on the subject of temporary disability and the burden of proof.  Applicants will often make the argument that if defendant cannot show wages between the date of injury and the P&S date, then applicant is entitled to temporary disability benefits.  However, this isn’t always the case.

In the matter of Singh v. N. Kern State Prison, applicant asserted she was entitled to temporary disability benefits from the date of injury to her P&S date.  However, defendant contended that there was insufficient evidence to support a finding of disability, despite there being no wages, relying on Labor Code section 5705 (“[t]he burden of proof rests upon the party or lien claimant holding the affirmative of the issue…”)

Over the five reports issued by the AME in this case, there is no definitive discussion of temporary disability, nor the periods when applicant would have been temporarily disabled.  In fact, when the matter was submitted for trial the first time, the WCJ ordered the parties to develop the record and specifically inquire from the AME “what, if any, period of medical temporary disability, total or partial, resulted from the injury.”

Despite having the opportunity to depose the AME, applicant failed to establish the periods and extent of her temporary disability, leading the WCJ to conclude, and the WCAB to concur, that applicant did not carry her burden of proving entitlement to temporary disability benefits.

Now, in this case, there didn’t appear to be any evidence to offer as to temporary disability, and so the WCAB concluded that applicant failed to carry her burden.  How much is enough to carry it though?  What happens when the primary treating physician sends you a work slip that says “TTD until next visit four weeks from today” or something like that?

We’re not talking about a hospitalized injured worker, but someone who, presumably, was able to get to and from the appointment and can probably function fairly independently, but possibly could not perform regular duties.  Is a slip from the treating physician that concludes the injured worker is “TTD” enough?

It seems that, at least in theory, such a report, without more, might not constitute substantial evidence and would be insufficient to carry the applicant’s burden of proof.  However, one could also imagine the applicant, at an expedited hearing, weepily telling the WCJ about the pain and the inability to do ANYTHING, which is why the treating physician opined that the disability was total.

What do you think, dear readers?  How light is this “burden” that falls on applicants?

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City of Jackson: Court of Appeals Uphold Apportionment to Genetics

April 28th, 2017 No comments

Happy Friday, dear readers!

Your humble blogger is very happy to report that in its recent decision, the Court of Appeal ruled that however great a fall Humpty Dumpty might sustain, all the king’s horses and all the king’s men are only responsible for putting back that part of him that was industrially injured.

Convoluted enough for you?  Well, prepare to have your mind blown – nowhere in the rhyme does it say that Humpty was an egg.  In fact, he was a workers’ compensation applicant in California’s claims system.

The case I speak of (or write of, depending on whether my pestering lawyer voice is already stuck in your head) is City of Jackson v. WCAB.   Therein, applicant, a police officer, alleged a cumulative trauma to his neck, shoulder, arm, and hand.  The PQME opined that 49% of his permanent disability as to the neck was caused by genetics and not by the cumulative trauma.

Although the WCJ sustained this apportionment, the WCAB reversed, finding instead that the report was not substantial evidence as to apportionment because apportionment to genetics was an impermissible immutable factor.  The Board further opined that such apportionment is an apportionment of the injury rather than the permanent disability.

The Court of Appeals disagreed.

After reviewing the facts and procedural history, the COA noted that the enactment of SB-899 allowed apportionment of permanent disability based on causation.  Citing Brodie v. WCAB, the Court of Appeal noted that “[s]ince the enactment of Senate Bill No. 899, apportionment of permanent disability is based on causation , and the employer is liable only for the percentage of permanent disability directly caused by the industrial injury.”  The COA continued that the law specifically permits “apportionment based on pathology and asymptomatic prior conditions for which the worker has an inherited predisposition.”

In citing the case of ACME Steel v. WCAB, the Court of Appeal also held that there is “no relevant distinction between apportionment for a preexisting disease that is congenital and degenerative, and apportionment for a preexisting degenerative disease caused by heredity or genetics.”

Accordingly, the PQME appropriately identified and estimated a non-industrial cause of applicant’s permanent disability.  The Court of Appeal ruled that this genetic predisposition was not an impermissible immutable factor.

We’ve seen something like this before, though it went largely unnoticed: in the matter of Reff v. WCAB, a 2011 writ denied case, the industrial pneumonia lit up applicant’s pre-existing but asymptomatic  common variable immune deficiency, resulting in significant disability and need for treatment.

Another interesting fact in this case was the element of causation – as this was claimed as a cumulative trauma, the Court of Appeal opined that the QME was not apportioning to causation of injury, as the QME was not asserting that the repetitive motion that caused the injury was in turn caused by genetics.  Instead the disability was caused by applicant’s genetics.

So, some take-aways from this case: some QMEs will decline to apportion to pre-existing or non-industrial conditions, reasoning that, if applicant was able to perform his job duties before, there was no visible disability.  But, this opinion appears to hold that apportionment to asymptomatic pre-existing conditions that are only triggered by the industrial injury is appropriate.

Furthermore, genetic conditions are apparently NOT an impermissible immutable factor.  The Court of Appeal expressly rejected this holding to opine that it is permissible for a QME to apportion permanent disability to such a condition.

For the more serious cases, this seems like a good opportunity to bring up the concept of 4050 exams.  If the stakes are high enough,  it might make sense to hire a 4050 doctor to conduct an exam, and offer both literature and guidance to the defense attorney on the extent of permanent disability that should be attributed to non-industrial causes, such as genetic conditions.

Score a point for the good guys!

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Employer Goes Down for WC Fraud

April 21st, 2017 No comments

Happy Friday, dear readers!

Today I bring you the story of Chang Tai Lin, of Salinas, who was recently sentenced for various forms of fraud related to underreporting the number and earnings of his employees to get lower workers’ compensation premiums.

His restaurant, AA Buffet, had more employees than what was reported to his insurers over a span of some six years (2010-2016), and also some of their pay was disbursed in cash to avoid reporting the income.

Here’s the district attorney’s press release.

Fraud is a bad thing, and employer fraud is no exception.  The effect ripples, harming insurers that have to shift the burden not carried by one insured to the others.

But, as clearly illegal as this was, let’s not get all high and mighty just yet.  Mr. Lin was neither the first, nor the only business owner to engage in such conduct.  There are employers who spend some time crunching numbers and come to the conclusion that their business will be in the red if they comply with the laws.  Unfortunately, some of them make the decision to not comply with the law and risk it.  Some of them don’t get caught and are able to undercut their competition on prices.

On several cases, I’ve had the opportunity to discuss this subject with policy holders while preparing the defense of a case.  Business owners, wall-to-wall, have told me about how hard it is to keep the lights on.  Workers’ compensation costs are not the only factor, but they are just another link in the chains weighing down business owners.  Some of them choose to leave California; some of them choose to close up shop and get a day job; and, of course, some employers, like Mr. Lin, choose to break the law.

I have no interest in defending Mr. Lin’s actions or offering justification or excuse.  I do, however, think we as Californians need to be aware that there are no externalities and there are no vacuums.  The economy is an interconnected organism, and when our fellow Californians do things like advocating a yearly depletion of the return-to-work fund  to increase assessments against employers and insurers; turn employers into insurers for the results of pregnancy; or bend the law to provide unnecessary and undeserved benefits to workers who exaggerated their symptoms; the money has to come from somewhere.  That usually means higher prices for consumers, or driving businesses away.

California should be a place where the cost of being a law-abiding citizen and business-owner is low compared to the penalties for violating the law and the odds of being caught.  Instead, the high cost of compliance continues to tempt desperate employers into breaking the law.

Just some food for thought for your weekend, dear readers!

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