WCDefenseCA

Fraud can be tricky to deal with, dear readers.  Often enough, combating fraud can be considered in an equation form: how much money does each individual act of fraud cost multiplied by the ability to detect said fraud.  That’s why SJDB voucher fraud is such a nasty animal.

The maximum exposure for the SJDB voucher fraud is $6,000, and some fraction of the $5,000 return to work fund provided by the state which is replenished by employers and insurers every year.  So, when an injured worker is suspected of engaging in fraud related to a voucher, the incentive in investigating the fraud and referring it for prosecution is rarely there: what are the odds that well over $6,000 will be spent by the time the jury is empaneled?

We occasionally see some action taken against such fraud, but the individual claimants are too small a target and the big game is the vocational rehabilitation outfits themselves. The latest of these is the Computer Institute of Technology.  As alleged, the school submitted fraudulently documents to insurance carriers for classes never actually provided.  There are also allegations of forged signatures for injured workers.

If you received bills from the Computer Institute of Technology, you might consider reaching out to the Los Angeles County District Attorney’s office to see if you were billed for services that were not actually performed. 

Speaking more generally, the nay-sayers might claim that there is no harm to victims when such fraud occurs: after all, the voucher is for a set sum and, if issued, the insurance company was not contesting liability.  I say any to those nay-sayers!

The victims of fraud are often many, and the case is true here as well.  First, the injured workers are being hoodwinked out of a benefit to retrain and develop new skills.  Second the insurers are being defrauded as well – a benefit may very well never have been used and is being exploited to line the pockets of criminals.  So, this fraud does real damage, driving up costs and lowering the available resources available for benefits and wages.

Your humble blogger says – if you suspect voucher fraud, even if it will not be the case of the century, investigate and report it! Every bit of fraud the defense community ignores, tolerates, or decides to just absorb encourages more fraud.

Happy Monday, dear readers!

Your humble blogger has missed you these past few weeks and is so happy to be back, infecting your in-box and polluting your computer screens.  I bring to your attention today a topic so exciting, so thrilling, so prone to make the hair stand on the back of your neck, that I almost thought it appropriate to get a rating on this blog post before publishing it.

It’s not about cool ninja krav maga fighting at the WCAB. It’s not about a worker who claimed an injury after he was bit by a radioactive spider but then was photographed fighting crime while technically on TD. It’s about new EAMS regulations proposed by the WCAB!  Search your souls, dear readers – is that not the most exciting news ever?

Some of the changes are relatively minor – insurance companies will receive UANs much like claims administrators and attorneys.  The proposed regulations codifies electronic or digital signatures as well as scanned handwritten signatures and eliminates section 10205.6 which allowed parties to designate their preferred method of service, which is appropriate as accepting service by e-mail is not optional any more (see 8 CCR section 10625(b)(2).)

You can read the full text here, but the big takeaway for immediate action is that, since there are some insurance companies that are distinct entities from the claims administrators already registered with the EAMS system should do so promptly once the new regulations are approved and implemented.  The way to do so is to contact the Central Registration Unit via e-mail at CRU@dir.ca.gov and providing the insurance company’s name, address, telephone number, and e-mail address. 

So, dear readers, follow your humble blogger as we take yet another step forward into the future and shift from paper to electronic everything!

Happy Monday, dear readers!  Your humble blogger hopes the October winds are kind and forgiving in how they howl across California.  Those winds bring Halloween closer and closer, along with trick-or-treaters and scary movies.  Dentists rejoice as with every “trick-or-treat” a new patient is created.

But Halloween isn’t the only thing on the wind – as always, the times they are a-changin’.  Governor Newsome has announced that he intends to lift the COVID state of emergency in February of 2023.  This shouldn’t feel like change – it should be reverting to some semblance of normal.  Of course, how do you go back to normal after all the patent insanity we saw since March of 2020?

But, in the more practical sense, we can expect to see some changes procedurally and legally in the handling of claims.

For example, remember 8 CCR Section 46.3?  This extended the time for the initial appointment by a QME from 60 days to 90 and allowed for telehealth evaluation.  Well, subsection (a) of 46.3 states that this is only “during the period that this emergency regulation is in effect” and this will continue to be in effect until January 16, 2023.  Will we still see machinations to make section 46.3 permanent when there is no longer a COVID emergency?

What about hearings at the WCAB?  Think of all those billable hours defendants didn’t have to pay in travel time because status conferences and MSCs were done via telephone.  Will we transition back to in-person hearings for everything now?  The “emergency” that prompted this shift is about to be declared over, after all.

Now how about depositions?  As a defense attorney for some thirteen years now (just long enough to receive my California Bar Mitzvah – get it… Bar Mitzvah, but California Bar… tip your waitress folks!) your humble blogger isn’t the first to accurately compare the deposition of an injured worker, especially in the Bay Area, to herding cats.  If the stars align, and proper sacrifices have been given unto the appropriate deities, applicant, applicant’s counsel, the court reporter, and the interpreter will all appear on time at the right place.  Often enough, one of these professionals would not attend, if not the deponent him or herself!

With remote depositions, this if fixable – a phone call can find another interpreter or another court reporter (or, if need be, another defense attorney to pitch hit at the last moment).  And, if applicant really does flake, the cost is some vendor fees that can be demanded as costs.  The defense attorney has not invested Bay Area travel times in the aborted deposition.

Well, fortunately, SB 1146, signed by the Governor in September of 2020, has made electronic service mandatory and remote deposition available on a permanent basis, regardless of the California state of emergency.

Your humble blogger hopes that remote appearances will remain, at the very least for status conferences and mandatory settlement conferences.  The time saved not pointlessly sitting in a car, and the calendar shortened by appearing at multiple venues in a single day is just gold.  There is an obligation, of course, to provide speedy justice.

Anywho, dear readers, it’s time to brace ourselves for a new shift.  It’s not entirely clear how much of the “emergency” way of doing things will remain and how much will go back to “normal”, but come February, we should all be nimble, alert, and, much like a 6-year-old at a urinal: on our toes.

As always, your humble blogger will be here, at your service, to make lame puns and sarcastic remarks about or unfortunately worsening situation. 

And we’re back for another glorious Wednesday in California’s workers’ compensation swamp, dear readers. 

If you’ve been waiting for the emergency telehealth rules to expire, your humble blogger has some rather bad news for you, dear readers.  While the current 8 CCR 46.3 are set to expire on October 18, 2022, the DWC intends to extend the regulations another 90 days.

What’s important about these regulations?  The regulations allow QMEs and AMEs to conduct medical-legal evaluations under certain conditions.  Previously, Rule 34(b) only allowed examinations to be conducted physically in the office of the QME or AME.

Lots of your humble blogger’s colleagues have objections to telemedicine med-legal examinations, and your humble blogger certainly sees merit in these arguments – a physical exam cannot be properly done over video, nor can range of motion be adequately measured; an examinee can be fed information by someone off screen or terminate the evaluation abruptly and claim technical difficulties.

Naturally, some folks in the workers’ compensation community are cheering the anticipated end of telemedicine examination.

If the WCAB proceeds with extending the telemedicine regulation, we can expect the status quo for another 90 days afterwards, unless the regulation is made permanent, rather than part of the “emergency.”

As my well-informed readers will recall, the WCAB recently had attorneys return to in-person trials and expedited hearings back in March of this year.  So, your humble blogger can’t help but ask… what is the difference between the two?  What compelling need is there for in-person trials that is not needed for med-legal examinations?  Or, by contrast, what makes med-legal examinations effective when conducted via telemedicine that doesn’t equally apply to in-person trials?

As any Canadian Goose farmer will tell you in between giant mouthfuls of maple syrup and glances at the local Canadian hockey game, what is good for the goose is good for the gander.

In any case, dear readers, I think we can all feel it in the air.  As the panic of the pandemic is dissipating and we’re all getting on with our lives – returning to normal, rather than arriving at a “new” normal – we are coming to a very important fork in the road: is workers’ compensation going to go effectively remote, with video deposition, telemedicine, and video-trials, or will we revert back to an in-person system?

Happy Monday dear readers!

Of course, it’s not just Monday, is it?  In fact, it’s Columbus Day in many parts of the country.  However, if we were to look at the Rules of Court holidays, Columbus day is noticeably absent.  Of course, comparing the Court Holidays to years prior, Columbus day was a holiday as late as 2021.

By contrast, California Government Code 6700, lists Columbus Day as a holiday.  Columbus Day was

Typically, whenever any deadline falls on a “holiday” that deadline is extended to the next non-holiday, non-Saturday, non-Sunday.  But what about Columbus day?

Less than a year ago, your humble blogger brought you the panel decision in Vanlandingham v. American Services & Products, Inc., which ruled that since the WCAB was open for filing on Columbus day, the deadline to file was not extended by one day. 

So, what’s the answer, dear readers?  Should Columbus Day extend filing deadlines until Tuesday?  As discussed in this prior blog post, the answer is no.  Government Code section 19853 does not list Columbus Day as one of those holidays where state employees are off work.  Accordingly, if you have anything due today, I suggest you roll up your proverbial sleeves and start working away, as 5pm will be here before you know it and your deadline will be blown!

For those of my beloved readers lucky enough to enjoy today as a day off from work, I urge you to enjoy the wonderful weather and the time spent away from our beloved swamp of workers’ compensation. 

Every lien claimant knowingly providing treatment UR denied, every applicant attorney demanding sanctions because there were only 50 tissues in his client’s tissue box instead of 52, and every shameless defense attorney such as your humble blogger pestering you for authority to take the SJDB Voucher dispute all the way to the California Supreme Court will be waiting for you come Tuesday.  You may as well enjoy the sort-of holiday of Columbus Day while you still can.

Until the next time, dear readers!

Are you tired of hearing more and more about new legislation coming out of Sacramento, dear readers?  I didn’t think so.

Your humble blogger has one for you that isn’t directly a workers’ compensation bill, but that you should be aware of.  Senate Bill 1162 was signed into law by Governor Newsome on September 27, 2022.  Aside from imposing various reporting requirements on employers regarding the race and sex of their employees, to also post a salary range with any job advertisement and create penalties for failure to do so.

How does this apply to workers’ compensation matters?  Well, imagine if you will an injured worker on TD benefits who happens to notice that his employer is hiring for the same position.  It doesn’t have to be a replacement, but perhaps the employer is looking for an additional professional for the same job – another plumber, another waiter, another janitor.

Well, as we know, TTD benefits are calculated based on the earning capacity of the injured worker at the time of injury.  What happens when the employer posts a pay scale in accordance with the new Labor Code section 432.3 and the scale provides for a higher rate of pay than the employee was receiving at the time of injury?

Suddenly, the employer is subject to depositions regarding how it arrived at the pay scale and why applicant is not receiving more on the pay scale than he is.  The adjuster is faced with demands to pay higher on the pay scale or be exposed to penalties.

SB 1162 goes further still – not only are new job posts to include the pay scale, but current employees can demand disclosure of a pay scale for their respective positions under LC 432.3(c)(2).  Your humble blogger anticipates that applicant attorneys will exploit this by having their clients, employees presently on TTD, demand the pay scale for their respective positions and then use workers’ compensation discovery procedures to develop the record on why the “earning capacity” should be higher on the pay scale.

Claims for higher TD rates and related penalties would certainly follow.

So, how do we address this newest burden imposed on employers and insurers in California?  Well, for starters, employers need to invest some serious time into considering a pay scale and having competent HR or supervisor employees explain the basis of the scale.  Employers should have a decision maker who can testify competently, under oath at a deposition or at an expedited hearing, how a particular pay rate was reached. 

From the side of litigation and claims, we need a strong channel of communication with the employer and HR to provide us with those competent witnesses, but also to update us as to the current pay scale for any given position, as those pay scales will certainly change with time and circumstances, and where applicant falls on the pay scale and why.

Time after time, Sacramento has made very clear to the employers and insurers of California that it is open season on anyone providing employment in California.  Given this climate, it only makes sense that the defense community become more proactive and more cooperative with the tools available to defend these claims and keep the lights on.

See you next week, dear readers!

Happy Wednesday, dear readers!

Your humble blogger has some rather unfortunate news for you.  On September 29, 2022, Governor Newsom signed SB-1127 into law.  As my readers may recall, this most humble of blogs touched on earlier versions of the bill, but the one signed into law isn’t much better.

As enacted, SB 1127 reduced the normal investigation period of 90 days to 75 and imposes up to $50,000 in penalties for “unreasonably denied benefits” as part of a denial in certain presumption cases (generally firefighters and law enforcement and the such).  It also increases TD from 104 weeks to 240 weeks for firefighter and law enforcement presumption cases as found in Labor Code section 3212.1.

Defendants affected by the presumption cases will be put in the untenable position of having to investigate the causation of a claim within 75 days or face up to $50,000 in penalties for not accepting the claim.  We can all do the math – if a particularly responsive adjuster manages to get a delay letter out on the same day as receiving the claim form, that’s at least 15 days before a panel can be requested.  In pro per cases, that has to be done by mail, but let’s assume this is an issue in a represented case and a panel can be obtained immediately. 

Well, there’s another 15 days for the strike process, which makes 30.  Now the employer has 45 days left to get a report upon which to issue a denial.  The regulations allow for up to 90 days for an appointment and another 30 days for a report after that. 

How is the employer supposed to get a QME report upon which to contest causation before it’s forced to deny the claim pending the investigation?  Well, it’s not.  The purpose of SB 1127 is to turn joint powers groups, local municipalities, cities, counties, fire districts etc., into piggy banks for the presumption class of employees.

Now, dear readers, if you’re thinking excitedly “that’ what you get!” after you got a parking ticket and were forced to pay it, don’t get too excited.  As is often the case with Sacramento, this is a test – the face-value beneficiaries of this legislation are sympathetic (police and firefighters, mostly) and have a robust and strong union.  But rest assured, this is a test of how the system will work.

Once this is firmly in place and part of the routine for the public sector, such legislation will surely follow to further plunder the private sector.   Sacramento will of course consider pushing the investigation period down to 75 days for all employers and impose similar penalties for failing to accept a case.

So, how should we change claims handling in light of SB 1127?  Well, for starters, we should be reserving more for potential TD exposure.  Additionally, the employers and supervisors should be updated on claims handling procedures and reminded of how important it is to report the receipt of a claim form/notice of injury IMMEDIATELY.  Claims handling should continue to thoroughly document the files and be prepared to challenge claims of “unreasonable” rejection of liability with asserting a record of diligent investigation – prompt requests for panel and writing to the QME, possibly even deposing treating physicians if necessary. 

Buckle in, dear readers, this is going to be a bump ride!

On a side note, to my beloved readers observing Yom Kippur today, your humble blogger wishes you an easy fast – G’mar chatimah tovah!

Happy Monday dear readers!

Your humble blogger trusts you are enjoying the start of October.  As the colors turn and nights get cooler, we witness in shocked silence the horrible battles on store shelves as Halloween, Christmas, and, bizarrely, Thanksgiving-related items battle for shelf space in stores.

Seriously though – can we get through Halloween before the Santa stuff comes out?  The kids demand one of everything and I just don’t have that much trunk space.

Anywho, speaking of Christmas… to some extent it came a bit early this year!  178 Medical Providers were suspended from the workers’ compensation system so far according to this DWC NewsLine.

Are you dealing with a presently suspended medical provider?  Perhaps, when dealing with a demand for PTP authorization, or with bills, or with liens, it makes sense to check on the DIR website to cross reference these names.  

The fact that there is such a framework in place – and a procedure for ridding the workers’ compensation system of bad actions – should remind and encourage us to do our part.  If you suspect fraud or observe fraud, document it and report it appropriately!  Every dollar lining the pocket of a fraud, whether that fraud is collecting undeserved TD or is buying shinier frames for his MD certificate, is a dollar stolen from higher wages for employees, lower costs for consumers, and credibility for us all.

Good hunting to you, dear readers!  Straight on till Wednesday…

When your humble blogger was wrapping up high school and getting ready to start an exciting life of cow-tipping and avoiding bike-seat-theft at UC Davis, something magical happened in Southern California.  The California Coastal Records Project took photographs of Barbara Streisand’s coastal home along with photos of the much of the rest of the California Coast.

In 2003, Ms. Streisand sued seeking to have the photos of her home removed from the website, claiming the right to privacy.  Internet wisdom holds that until this lawsuit, the photos had only been downloaded 6 times, but after the lawsuit, several hundreds of thousands of people went to see the photos, and likely more since then.  In trying to sue to protect the claimed privacy of her home, she drew enormous attention to it instead.  The “Streisand effect” is just one of those examples of unintended consequences.

So let’s talk about AB257, which empowers the State of California to raise minimum wage for fast food workers up to $22 per hour, along with the growing (and growingly crippling) cost of workers’ compensation in California.  Much like California’s gas tax increases the cost of each gallon drastically at the pump, California inflates the cost of an hour of labor in the fast food industry as well: minimum wage, HR laws, and, of course, the cost of workers’ compensation per $100 in wages.

Well, Daily Mail recently had an article about yet another automation system intended to minimize a fast-food restaurant’s reliance on human labor: “Flippy, Sippy and Chippy”  The idea is, of course, to automate many of the tasks and, ultimately, replace much of the human work force while avoiding paying for things like breaks, no-shows, injuries, overtime, etc.

Several major chains are already paying Miso Robotics the installation price and monthly fees ($3,000 per month!), reportedly including Chipotle, White Castle, and Panera Bread, among others.

So, naturally, California has made the cost of labor in the fast food industry so high, that it is economically efficient to replace a portion of the labor cost with these robots.  Of course, this isn’t an option for everyone: given the start-up capital needed for installation and the monthly rentals involved, smaller franchisees are probably not going to be able to use this technology until the price falls and the maintenance is reduced.  But that’s not a concern for Sacramento, of course.

So, the net result will be as it has always been – smaller businesses and their employees will be out of the job and their competitors with better staying power will lay off a portion of the workforce to replace them with machines.  Meanwhile, your humble blogger will start working on good-faith non-discriminatory personnel action defense trial briefs for the inevitable psyche claims of “stress from being replaced by a robot” applications.

Perhaps we can start referring to this as the “Sacramento effect?”

Have a great weekend, dear readers!

Your humble blogger has often thought, dear readers, that if he was given unlimited power and control over California’s workers’ compensation system, there are a lot of changes he would make. 

Bow ties would be mandatory, always and forever.  Judges would be powerless to sanction defense attorneys for doing air quotes when addressing the deponent as “doctor” during a deposition.  5710 fees would be limited to comparable rates for defense attorney hourly fees.

Once the drunk-with-power period faded, however, there are some substantive changes that I would like to see made to the way we navigate our beloved swamp of workers’ compensation.  So, introducing as of today, the humble blogger’s wish-list series!

Today’s wish is a reform of MPN mileage rules to reflect the realities of telemedicine.  Pursuant to 8 CCR 9767.5, one of the requirements for MPN validity is to provide at least 3 physicians ready to serve as PTP within 15 miles or 30 minutes of an applicant’s residence or workplace (or only the workplace, depending on which panel decisions you follow) and 60 minutes or 30 miles for occupational health services and specialists.

What does that mean in a world where a growing number of physician visits are conducted over telemedicine?  If applicant challenges the validity of an MPN based on distance requirements, can the defense realistically offer PTP’s exactly zero miles from applicant’s home because the internet connects to applicant’s living room?

Your humble blogger would revise 9767.5 to offer an exception to the distance requirements, which could be inserted as 9767.5(a)(3) as follows:

Any treating physician equipped and willing to treat a covered employee’s injury or injuries via telemedicine will be considered as having satisfied the access standards set out in subsection (a), above.

Easy, no?

I understand, dear readers, that your humble blogger, when taking up the task of a running wish list, would make such a modest proposal… well… one could be seriously underwhelmed.  However, isn’t this perfectly consistent with the aspirations of a man who dreams of unrestricted power to force everyone to wear bow ties?

Hopefully this will be an ongoing series throughout these blog posts, dear readers.  But if you have any proposals, particularly those that would mitigate the destructive and poisonous effect the current workers’ compensation system has on employers, then your humble blogger is like a corn field right before harvest time: all ears.