WCDefenseCA

Hey there dear readers – do you love surfing Facebook, Twitter, and all sorts of other social media?  Does your boss tell you that you can’t do that at work because it isn’t work?  That’s lame, maaaaaaan – a real drag!

Well, what if I told you that you can now combine business with pleasure and surf Facebook at work?

In a manner of speaking, if you’re looking to deal with your claims, you almost have to.

Facebook isn’t for college kids anymore – just about everyone and everyone’s mother is on it.  It’s not just for stalking ex-girlfriends and ex-boyfriends anymore either – folks promote their businesses on there.  They find business contacts.  In less professional fields, there is a pretty strong level of marketing and networking that goes on through Facebook groups.

The same is true, to some extent, for just about every other form of social media.

So what has your “injured” applicant been up to lately?  Is he starting a business? Is he competing in weightlifting competitions while on TTD?

What made me think of all this stuff (again) was a recent case that came up – Pecoraro  v. PT Gaming, a panel decision which has a whole lot of issues going on.

Applicant alleged a right shoulder injury as a CT.  After the parties selected a QME and set an evaluation date, defense counsel provided applicant with a cover letter, medical records log, Facebook profile, and sub rosa video which he intended to provide to the PQME.  As the panel opinion discusses, apparently, over applicant’s objection, defendant provided the Facebook profile to the QME.

Applicant then set a hearing and proceeded to trial on the issue, seeking to strike the PQME’s report and requesting a replacement panel.  The WCJ found no impermissible evidence was reviewed and denied applicant’s request for a new panel.  The petition for reconsideration followed.

After the recon petition, defense counsel appeared before the WCJ to walk through a C&R, presumably with applicant having dismissed his attorney.  The C&R was ordered approved by the WCJ and prompted a second petition for reconsideration.

The WCAB held that sending non-medical information to the PQME over applicant’s objection was a violation of Rule 35(d).  The finding that the PQME did NOT review impermissible documents was rescinded and the matter was returned “to the trial court for further proceedings consistent with the opinion.”

As to approving the C&R, the WCAB noted that the WCJ may have been stripped of jurisdiction to approve the C&R based on applicant’s first petition for reconsideration.   The WCAB also cast doubt on applicant’s dismissal of his attorney and ordered further discovery on this point.

So, a few thoughts on this one.

As to the panel issue, it seems like an objection to non-medical records being provided to a QME does warrant further review by a WCJ, but let’s look at the situation step by step.  If the defense provides objected-to records to the PQME, but the WCJ, at a subsequent hearing, rules that there is no basis to keep this information from the QME, what harm was done by sending the records?  If there is no harm done, why would the PQME be “poisoned”?

What’s more, what possible reason could there be to exclude an applicant’s Facebook profile from the eyes of the PQME?  When applicant shouts from the mountain-tops “X Y Z!” by posting it on Facebook, why can’t the QME review it?

As to the OAC&R, if an applicant has dismissed his attorney, the only possible reason to question this is to suggest that the defense attorney somehow engaged in fraud.  Are we SERIOUSLY getting to the point that we are accusing officers of the court of falsifying documents?  Does anyone think that a defense attorney would risk his career and his reputation (I’ve found that in a small community like Workers’ Compensation litigation, the two are one and the same) to get a single file closed?

And, of course, Facebook is a total goldmine for us.  Whether you decide to send the Facebook profile to the PQME over applicant’s objection or after getting an Order, this is a resource you should not overlook in every file that’s heading down litigation lane or represented road.

Hello, dear readers!  Generally speaking, your humble blogger maintains his calm, cheerful, and respectful demeanor thanks to this blog and its readers: all the venting and ranting happens here, and the sarcasm and snark gets spent here instead.  To that effect, I try to bring you stories and cases and developments tied snugly into California matters but, on occasion, when it’s particularly relevant, I might relate a story or two from outside of California’s well-established borders.  Today is such a day!

The Washington State Department of Labor & Industries reports that Tony T. Perry Sr., of Port Orchard, Washington, has plead guilty to two counts of third-degree theft after he received almost $14.5k in wage loss payments while he competed in BMX bike races.  He described, on Facebook, injuring his ribs after a bike crash, but then claimed he injured his ribs in a fall caused by his allegedly industrially-injured knee.

Convict Perry was sentenced to 15 days of electronic home monitoring, with an additional 349 days in jail, suspended if he obeys all laws and repays the wage loss he received.

The investigators were clued in based on an anonymous tip, and conducted some surveillance, videotaping convict Perry engaged in at least two BMX races.  However, it looks like half of the work was done for the investigators by Perry himself, who brazenly documented his BMX racing on Facebook for the world to see.

So, dear readers, why do I bring this to your attention?  Why would an adjuster or an attorney or even an employer in California, where we are so busy keeping the working man from working, care about BMX racing and workers’ comp in Washington?  Well, you know we have bike paths in California, right?  We have Facebook too.

If you get a claim and you have the slightest doubt that the injured worker is a faker… take a look at Facebook.  If you get a claim and you’re pretty certain that the injured worker is honest… take a look at Facebook.  Take a look at LinkedIn too, and the Twitter and whatever else the kids are doing these days, because odds are, there’s a gem or two waiting for you to pick it up.  And, yes, this applies to California too.

So, dear readers, don’t be shy – a bit of time on social media could lead to an SIU referral.

On several occasions, your humble blogger has gently suggested against nurturing that fear of social media, especially Facebook, and instead urged you to use it to help nab fraudsters.  If a creeps can stealthily cyber-stalk ex-girlfriends and secret crushes, why can’t adjusters and defense attorneys use the same tactics to find out when our total PD applicant is developing his Mixed Marital Arts persona?  We’ve seen Facebook used effectively, and Twitter has been used in much the same way.

The story I bring you today is that of an Ohio woman, who “pleaded guilty to workers’ compensation fraud after her Facebook postings helped prove she was working while collecting benefits for a workplace injury.”  She was ordered to repay $61,000 in ill-gotten benefits (although it does not appear that the cost of the investigation, prosecution, or future monitoring and enforcement of this order is to be paid by anyone other than Ohio’s taxpayers).

Basically, she was submitting payroll documents from a non-existent company to qualify for wage-loss benefits (Ohio’s gap between a subsequent job and pre-injury earnings).  In fact, she was posting pictures to her Facebook profile which reflected her employment at “Purrfect Paws Grooming Boutique,” and failed to report her actual wages.

If you’re particularly curious, the woman’s Facebook page is still up (at least at the time of this posting).

It really doesn’t take that long to become adept at manipulating Facebook or Twitter to allow access to various profiles or the information that the injured worker is willingly shouting to the world.  One can hardly claim that the vows and curses shouted from the top of a mountain were meant to fall everywhere except an adjuster’s ears.

So, crack open your old highschool yearbook and track down that one that got away (be prepared to explain this exercise to your significant other – any injuries sustained may or may not be compensable under your employer’s workers’ compensation policy).  Once you’re able to track down this missing love, you’re probably skilled enough to check the doings of any applicant who has to brag about his or her fraud on Facebook or Twitter or any of the other social media.

 

A wise man once said “stupid is as stupid does.”  But one person’s stupidity can reap endless benefits to another’s wisdom, and here’s how.

The story making the news on the interwebs is that of an Oregon teenager who posted a Facebook status of “drivin drunk… classic 😉 but to whoever’s vehicle I hit I am sorry. :P.” (Slurred and borderline illiterate mistakes in the original.)

Sure enough, Drunky-McDUI hit a car and ran away to drink another day, but was turned in by Facebook “friends” who saw the Facebook post and heard about his misadventures.

What does this have to do with California Workers’ Compensation?  Plenty!

As suggested by your humble blogger many times before, the fact that people do stupid things and brag about them on Facebook, Twitter, LinkedIn or any other social media the kids are playing with today does not mean that those things are not fair game for the defense-side of this industry.

Your applicant will cry and moan about her depression at the deposition.  He will testify endlessly about how he can barely get out of bed because of every single body part hurting so much after his industrial injury.  You will hear claims of every kind imaginable up to the point of an award… but you know they aren’t true.

You also will hear whispers from co-workers of an injury being faked, of Ms. Applicant attending parties and dating or Mr. Applicant going skiing and working on digging a trench at his ranch (isn’t it great to get all those things done now that you don’t have to waste time at work?)

More and more of the world’s applicants are finding themselves on social media, and some can’t help but live their lives on the public stage, from reporting the fact that they are eating a sandwich to uploading video of how great they are on jet-skis.

So, what can you do right now to take advantage of such a weak degree of discretion?  Well, for starters, go to facebook and create a profile.  You don’t need to put in any information you don’t want to share with anyone – don’t upload a picture, or upload a picture of something random like a pencil or a puppy.  Look up your applicant by name and see what network he or she is on (usually, networks are organized by school, city, or employment).  And then just see what’s available to the public – is there any activity on there that is inconsistent with the applicant’s claims?

Odds are that one of the co-workers that is a Facebook friend but a real-life enemy might even report these activities to the employer if asked.  After all, that’s how Captain Genius got caught in the story above.

 

Facebook.  In days like these, we cannot afford to brush it off as just a venue for attention-seekers to document every meaningless aspect of their lives for the world to see.  It is also a great resource for catching fraudsters and plugging workers’ compensation leaks.

There are sophisticated methods of using Facebook to catch injured workers exceeding their “physical limitations.”  For example, you might catch a TTD applicant posting pictures of himself playing basketball, or that spinal injury case might be uploading video of herself doing tricks on a jet-ski.  But sometimes the lies are even more glaring.

Kristi Denise Motty was convicted for workers’ compensation fraud following a two-day trial.  For this case, the deputy district attorney stepped back from the trees and showed the jury the forest – it didn’t matter what Ms. Motty was posting on Facebook; she didn’t need to discuss mountain climbing or bear-wrestling.

While Motty was off work, she entered nearly 200 updates on her Facebook account, even though “it was impossible to write or type” and her pain from doing so was “excruciating.”  Motty worked as an office technician at Corcoran’s California Substance Abuse Treatment.

Motty was also photographed loading textbooks into her car, attending nursing school classes, taking out the trash, texting on her phone, and carrying heavy grocery bags.

WCDefenseCA sends its congratulations to the Tulare County District Attorney’s Office for a job well done!

And here we are again, dear readers!  As the song goes, “Monday morning, you sure look so fine…”

So what better way is there to greet a Monday morning than a discussion of medical provider networks?  I certainly can’t think of one, so let’s dive in!

Normally, one might think a medical provider network is like a Facebook (or MySpace, for people closer to your humble blogger’s age) but only for physicians and the such.  But it’s not!  It’s actually a method of medical control for defendants in workers’ compensation cases. 

In the relatively recent panel decision of Vasquez v. Accurate Concrete Sawing, Inc., applicant’s claim of injury was denied and he proceeded to treat on a lien basis.  However, the defendant ultimately accepted the claim and wanted to move applicant into its Medical Provider Network (you could say that the defendant sent applicant a “friend” request… get it?)

Anywho, applicant refused, arguing that defendant had lost medical control and there wasn’t a demonstrable change in circumstances to warrant forcing applicant to treat within the MPN.  You, learned reader, might be thinking to yourself “well, that’s not the standard, is it?” and you’d be right!  That’s when the parties cried “havoc” and let slip the dogs of litigation…

The trial judge summarized the arguments of the parties as follows:  applicant cited Zeeb v WCAB, a 1967 Supreme Court case, for the proposition that defendant lost medical control, while defendant argued that California Code of Regulations section 9767.9 does not require a petition to transfer applicant into the MPN nor does it prohibit transferring applicant into the MPN once the claim has gone from denied to accepted.  The WCJ ultimately fond that “defendant failed to meet its burden of proof that transfer to the MPN is warranted by changed circumstances or evidence that treatment with the current treater is defective or additional treatment is necessary and/or that the transfer of ongoing care provisions were met.”

On defendant’s petition for reconsideration, the WCAB declined to follow the WCJ’s reasoning, concluding instead that the en banc decision of Babbitt held that Zeeb predates various changes to the MPN statutes and no longer requires a “change of condition or defective or incomplete medical treatment” to transfer an injured worker into the MPN.  “Pursuant to Babbitt, defendant is entitled to transfer applicant’s medical care into the MPN regardless of the date of injury and without showing a change of condition or defective or incomplete medical treatment.”

If we stopped reading the panel decision here, we might think this a victory for the defense.  Sadly, that is not the case. 

The WCAB went on to hold that defendant must satisfy notice requirements and the procedure laid out in 9676.9(f), and remanded it to the trial level for factual determinations of whether (1) defendant failed to provide notice to applicant of applicant’s rights under the MPN AND if defendant failed in this regard, (2) did that failure result in a denial of medical treatment?  The WCJ was also instructed to determine if defendant complied with the requirements of 9767.9(f) (whether applicant’s condition satisfies one of the four scenarios outlined in the regulation that would allow applicant to continue treating with a non-MPN physician).

So, what’s the takeaway from this case?  Well, for one thing the panel opinion reaffirms for us that the guidance of Zeeb is no longer controlling and the key to transferring an injured worker’s care into the MPN is rooted in section 9767.9.

The Vasquez case further reiterates for the defense community how much delay there is in enforcing the MPN, even if a defendant does everything ostensibly right.  For example, in the Vasquez case, the claim was accepted on August 12, 2019.  However, the panel decision was issued in September of 2020.  Which means that even a year after accepting the claim, defendant still did not yet enjoy medical control of the case.  Justice delayed is, after all, justice denied.

Until next time, dear readers!

Alrighty dear readers, it’s Wednesday!

And, what, you might ask, is a perfect topic for a blog post on Wednesday?  Well, if it’s coming from your humble blogger, it might just be the alleged misdoings of a Florida workers’ compensation attorney!

I know, I know, what do you, my beloved readers, who have managed to exhaust all your discipline and will power to force yourself to read this California Workers’ Compensation Defense Blog care for what happens in a state where Gators are just waiting for you to give them a reason?

One’s odds of being murdered by a gator are low…

But never zero!

Well, while we’re all enjoying working from home, and the depositions are all being done via ZOOM, one of the concerns that practitioners rightly have with remote depositions is monitoring the deponent’s attorney “coaching” or directing the witness’s testimony.

So while your defense attorney is sitting there in his pajamas, sipping a totally virgin coffee while asking questions of the applicant, those glances off screen might not be the applicant concentrating really hard to make sure the answers are honest and correct.  Instead, the deponent might be reading text messages with answers being fed by the applicant attorney!

Now, while you might be saying to yourself that the humble blogger is being paranoid and that would never happen, the truth is that the Florida Supreme Court referee certainly thinks it did.

The Florida state bar filed a complaint against a defense attorney, who fed answers via text message to an adjuster being deposed in a workers’ compensation case.  In all the fun, the defense attorney accidentally sent one of these answers to the deposing applicant attorney!  This resulted in an investigation and the Florida Bar ultimately concluded the defense attorney was engaged in witness coaching.

In this case, this was discovered only because the defense attorney inadvertently sent the texts to opposing counsel, instead intending to send them to his client.

Text messaging is not the only way to engage in instant communications.  Google chat, Facebook Messenger, perhaps even some sort of magically teleporting homing pigeon, are all methods that would avoid detection but can continue to allow “coaching” between a deponent and the deponent’s attorney.

Nor is this limited to a deponent – an employee’s witness can likewise be coached during a video deposition.  Absent a slip-up like the one encountered here, there’s not much that can be done about it except the watchful vigilance of the deposing attorney.  The deposing attorney needs to observe and document, on the record, the demeanor of the applicant: “let the record reflect that before answering, the deponent was looking off screen” or “let the record reflect that applicant’s counsel appears to be operating his cell phone off screen as if to send a message” or “let the record reflect that a vibration noise was heard from the deponent’s side of the screen and she reviewed something before answering.” 

If this becomes a habit or routine thing during the deposition, perhaps it would be more appropriate to have the deposition videorecorded or taken before a special master.

Remember, dear readers, they promised us that by 2020 we’d have flying cars, robotic butlers, and lunar vacations.  But here we are, homeschooling our kids like the frontier days, and counting how many seconds allegedly injured workers looked off screen before answering basic questions, while doing our best to avoid arguments about whether the world is flat.  Good luck, dear readers, and watch out for the gators!

Hello, my beloved readers!

Welcome back to another wonderful day in the world of Workers’ Compensation.  Your humble blogger brings you a story today… one might say I am even telling tales out of school. I bring you today the story of one John Heaton, who alleged an industrial injury in November of 2015, and was convicted this month of insurance fraud, thanks to the diligent efforts of the Stanislaus County DA.

Apparently, Mr. Heaton made “material representations” to a return to work specialist about his physical abilities after sustaining an alleged injury while employed by the Stanislaus Union School District.

Unfortunately, the Bee report does not provide details about his statements or, more importantly, how they were discovered to be false.

The sentence includes 30 days in jail and restitution of just over $8,000.

So, this is cause for speculation, but speaking only hypothetically, how would one prove fraud based on misrepresentations to a return to work specialist.

A couple of suggestions (some of them pretty obvious):

1. Sub-Rosa – showing applicant engaged in physical activity which he allegedly could not perform;
2. Social Media – Facebook, Instagram, and whatever else the kids are thumbing away at with their smart phones these days;
3. Co-worker statements – often enough, this is the starting point in an investigation, where co-workers will hear (or overhear) about activities that don’t comport with why their colleague is getting a paid vacation while they are stuck covering extra shifts.

But the real trick is getting the case picked up by law enforcement.  Due to limited resources, the Department of Insurance and the District Attorneys’ offices can only prosecute so many cases, many of which will be prosecuting employers operating without insurance.

In any case, a hearty congratulations is owed to the Stanislaus County DA and to the school officials for diligently detecting, investigating, and ultimately prosecuting this case.

Alright, dear readers, back to work!

Happy Friday, dear readers!

I hope everyone out there is safe, finding the roads clear of obstruction.

I will refrain from commenting on the events of this week, because unlike Facebook and LinkedIn, this blog is one where the word “election” means Labor Code section 5500.5 and politics refers to parasitic organisms residing in cities (get it? Polis and ticks?)

Anywho – do you guys know what CrossFit is? Well, apparently, in addition to being an exercise method, it’s also a way to snare workers’ compensation fraudsters.

An OC deputy has been charged with perjury and insurance fraud for engaging in Cross-Fit while on TTD.

The accused, who shall remain nameless unless there is an actual conviction,  tripped over a fire-hose and injured his back, and then added claims for his shoulder and neck.  While collecting TD benefits, apparently, and being accommodated for a 10-pound push/pull/lift restriction, also engaged in several months of CrossFit, which involved, among other activities, 200 pound lifting exercises.

So, odds are, the Sheriff’s office was running routine sub rosa, or a co-worker tipped off the department.  In either case, the employer got evidence of some sort (possibly sub rosa), and then got a deposition transcript denying the truth, and out came the conviction.

If only it were that easy for private-sector employees, ones without any affiliation with law enforcement, to get fraud cases picked up and prosecuted.  But alas, California’s employers are only guaranteed the right (and non-waive-able obligation) to fund the Department of Insurance – it is up to prosecutorial discretion as to whether charges get filed.

In your humble blogger’s experience, it really varies county-by-county: some counties don’t place a high priority on prosecuting employee fraud, while others do.

What are the odds that the accused will claim that CrossFit was just part of his doctor’s intense rehabilitation?  Or that the instances of CrossFit exercise from May to November of 2015 were just a long string of “good days”?

Stories like these, dear readers, make your humble blogger want to file a psyche claim…

 

Work restrictions: the patient is prohibited from any law enforcement activity.  However, he is able to participate in strongman competitions.

Crazy, right? Well, welcome to California, my friend!

Happy Monday, dear readers.  We’ve all heard of Bogdan, the world’s strongest man:

But in our corner of the world, California has its own “strong man” competitions and recently, charges have been filed against a Santa Barbara police officer for competing in strongman competitions while receiving disability benefits.

Presently, this is just an allegation, but we’ve seen similar instances on this blog such as (1) firefighters competing in MMA; and (2) professional dancers performing in car commercials as hamsters while on disability.  Accordingly, this wouldn’t be the first time allegations have flown of an injured worker displaying disability for the worksite and super-human ability away from the eyes of the employer.

Until details emerge, of course, the office charged is entitled to the benefit of the doubt.  Not all injuries preclude all physical activities, and if the strong-man competitions were made under physician supervision, there’s an argument against a finding of Fraud.

The takeaway, for us in the workers’ comp world is that it makes sense to check up on people.  The longer the claimant is on TD, the more it makes sense to check up on him or her.

Most investigator offices will offer you services in the form of a social media or online check, but there are a few basic tricks you can do yourself:

1. Have you done a basic search on Facebook or Twitter?
2. Have you set up a google alert for your claimant’s name?
3. Have you checked any professional updates on LinkedIn?

Just some ideas, dear readers.

See you on Wednesday!