WCDefenseCA

There are all sorts of parties we might encounter in our day-to-day lives, dear readers; political parties, birthday parties, graduation parties… the list goes on and on.

But, in our beloved swamp of workers’ compensation the “party” is pronounced “par-tay” and the type of par-tay that gets everyone excited is the ex parte. 

But we’ve had a long history of deciding what is and is not ex parte communication.  Originally, ex parte literally meant only communicating with one party.  But, as the same sick and distorted evolutionary track that yields the platypus, nature’s joke, ex parte in workers’ compensation means so much more than it should.

When touching on ex parte communication with a med-legal examiner, AME or QME, ex parte is defined under Labor Code section 4062.3 which details the procedures for what constitutes ex parte communication and what does not.  For example, sending medical records to a QME at the same time as to opposing counsel could constitute ex parte communication, if it is before an examination.

But there are certain communications with medical-legal examiners which are NOT ex-parte.  For example, 4062.3(f) holds “communications … relative to nonsubstantial matters such as the scheduling of appointments, missed appointments, the furnishing of records and reports, and the availability of the report, do not constitute ex pate communication in violation of this section unless the appeals board has made a specific finding of an impermissible ex parte communication.”

So, let’s look at a recent panel decision, Reynolds v. Hostess Brands, a recent panel decision.  The WCAB adopted the WCJ’s report so we don’t have much guidance from the commissioners, but the facts present an interesting scenario with some concerning implications.

On its face, the Reynolds question asks – is correspondence regarding the payment of the AME or QME’s bills “nonsubstantial” as contemplated by Labor Code section 4062.3(f)?  Therein, the AME requested pre-payment for a deposition, which defendant paid.  However, when applicant’s counsel “sought to travel out of state to enjoy the MLB World Series” and requested a change in deposition date, the AME would not agree to refund the amount paid.  Applicant’s counsel then claimed the amount paid for the deposition was “in excess of fee schedule” and, according to the WCJ’s opinion on reconsideration, “in no uncertain terms accused Defendant of paying fees in excess of the fee schedule to attempt to sway [the AME] to provide a more favorable opinion.”

Did defendant’s payment of the deposition fee constitute an impermissible ex parte communication because the payment was not copied to applicant’s counsel?  Or was this a “nonsubstantial matter” as contemplated by Labor Code 4062.3(f)?

Well, the WCJ found that payment of a deposition fee is NOT “insubstantial” and applicant’s counsel should have been copied on the communication for payment.

The WCAB denied reconsideration and incorporated the WCJ’s opinion, with then net result of defendant having to pay for a whole new med-legal. 

What can we take away from this?  Well, for starters, it appears the WCAB is signaling to us that communications involving payment of bills, especially deposition fees, must be communicated to the other party.  However, as the WCJ’s opinion notes, the parties are well within their rights under California Code of Civil Procedure section 2034.450(a), to issue payment at the commencement of the deposition, regardless of the polices of the med-legal. 

Pursuant to CCP 2034.430(b), it is the party desiring to depose the expert that shall pay the expert’s reasonable fees for the deposition.  Accordingly, if applicant’s counsel wishes to depose the med-legal, applicant must first pay the med-legal costs for the deposition and then seek reimbursement from the defense.

Well, when applicant’s counsel sets the deposition of a med-legal, can defendant claim impermissible ex-parte communication if applicant’s counsel fails to bring a copy of the check to hand to defendant at the same time as to the medical expert?

Furthermore, in this Reynolds case, it appears that applicant’s petition to strike the AME was copied to the AME.  What happens when an applicant attorney accuses the med-legal of being bribed by the defense, but fails on the petition to strike?  If the WCAB rules that there was no impermissible ex parte communication, applicant’s counsel is in a position to demand a replacement anyway – as the well is now poisoned for making the allegations.

This is not far from a man accused of murdering his parents asking for leniency as, after all, he is now an orphan!

The net result of the Reynolds case has serious implications for a seriously flawed med-legal system as it is.  If the WCAB does not punish this behavior, we can expect to see more of this tactic.  We can also expect to see more litigation regarding what constitutes “impermissible ex parte communication.”  If the med-legal sends his bill for a deposition only to the defendant, do we need to get a new med-legal?  If applicant’s counsel is not copied by defendant’s interpreter vendor sending a confirmation notice, is that sufficient to strike the QME?

Perhaps it really is time for the workers’ compensation community to take stock and review whether the 2005 creation of the QME panel system, rather than allowing parties to retain their own experts, has shown to be a net positive or a net negative. 

What do you think, dear readers?

Happy Friday dear readers!

Another week is winding down – a special hello and thank you to all the wonderful people that made the WCRC conference in Dana Point such a memorable one, particularly as it had been so long since your humble blogger risked venturing out to gather with his fellow workers’ compensation creatures.  Hopefully, dear readers, our paths will cross at the conference next years.

In any case, if you can’t hang out with the humble blogger right this moment, perhaps I can interest you in a humble blogpost instead?

Well, let’s talk about the most-cursed beer in the world right now: Corona!  Your humble blogger theorized in this blog post that industrial COVID deaths resulting in transmission to and death of the employee’s family members could possibly follow the path of asbestos and pursue remedies against the employer in civil court rather than through the workers’ compensation system.  Well, the Kuciemba case seemed to shut that theory down, granting defendant’s petition for dismissal.

Now a different case is working it way through the court system: Matilde Ek v. See’s Candies Inc.  Plaintiff Ms. Ek was an employee of See’s Candies Inc. where she allegedly contracted Covid19.  She brought Covid home to her family, and her husbanded sadly passed as a result of the infection.

See’s Candies (my favorite is the dark cherry in chocolate, and if it’s not your favorite then, sadly, dear reader, you are wrong) sought a demurrer, arguing that any of Ms. Ek’s claims are derivivate of her workers’ compensation claims, and must be confined to the realm of workers’ compensation.  Ms. Ek’s attorneys argued, however, that despite her being a vector for the disease, she was claiming damages distinct from her own Covid suffering, but based on the death of her husband. 

The case is now up on appeal as to whether a demurrer is appropriate, as the trial level court denied defendant’s demurrer. 

In other words, dear readers, if you’ve been thinking to yourself that you really wish there were 2am TV commercials looking for clients who may have gotten COVID from a family member who got it from work… you are in luck!  Have a great weekend!

Happy Wednesday, dear readers, and to those of you suffering the pangs of hunger on this day of atonement, Gmar Tov!  Well, have no fear, dear readers, for your humble blogger is here to help pass the time.

So let’s talk about psychiatric injuries.  In the 90s, kids would always say things like “I believe you… psych!” which meant they didn’t really believe you. Easy to remember, hurts one’s feelings every time.  As great as this was on the schoolyard, it doesn’t translate so well as an affirmative defense in workers compensation.

Nevertheless, the defense community in California is truly blessed by an affirmative defense that rarely fails: the good faith, non-discriminatory, personnel action defense of Labor Code section 3208.3(h).  The basic idea is that when you’re tallying up the causation of a psyche injury, any part of the psychiatric condition caused by a good-faith, non-discriminatory, personnel action doesn’t get added to the stack of causation, which makes meeting the threshold of compensability a bit harder.

This was explored with a good explanation of the steps of analysis and process in the panel decision of Rodriguez v. County of Riverside.  Therein, the WCAB commissioners kicked a “take nothing” down to further develop the record.  But in so doing, provided some guidance for us lowly practitioners in the trenches in handling psyche claims.

The psyche QME in this case testified to causation of the injury as follows by breaking it down into various events and interactions at work, including “applicant’s refusal of a special project.”

The Panel first cites the case of Rolda v. Pitney Bowes Inc., a 2001 en banc case, explaining that the process should be followed thus:

The QME/AME (1) lists all factors of a psychological injury; (2) assigns a percentage of causation to each factor; (3) lists all factors causing psychological permanent disability; and (4) addresses the percentage of causation that each factor contributes to the permanent disability.

At that point, the WCJ determines whether each factor constituted an actual event of employment, and, if so, whether those factors that were actual events of employment were lawful, nondiscriminatory, good faith personnel actions.

If the remaining factors after filter 1 (actual events of employment) and 2 (not covered by the good faith personnel action defense) still meet the causation threshold of 51% or 35% (in cases of violent acts, etc.) then the claim is compensable (outside of any other affirmative defenses).

The panel further clarified a personnel action as “conduct attributable to management in managing its business including such things as done by one in authority to review, criticize, demote, transfer, or discipline an employee in good faith.”

The panel returned the case to the WCJ to have the medical-legal evaluator and the WCJ confirm to the process outlined above.

One thought your humble blogger has to share with you about this matter and many similar to it.  Words and phrasing matters a lot – and sometimes parties engage in symantics: it wasn’t the good faith personnel action that triggered my psyche injury… it was my reaction to the personnel action that caused it, so the defense doesn’t apply!

Well, don’t we all remember the Court of Appeal decision in County of Sacramento v. WCAB (Michael Brooks)?  This was a 2013 published decision wherein the Court of Appeal held that “The Board’s causation analysis treated Brook’s ‘feelings that he was unsupported by his supervisors’ as a cause of psychiatric injury, as did [the QME].  In reality, however, his feelings were the injury, or symptoms of the injury, not the cause of the injury.”

In short, a reaction to a good faith personnel action is not a “cause” of a psyche injury, but its symptoms.

Anyways, dear readers, just more to think about – I’ll see you here bright and early Friday morning!

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!

Your humble blogger missed you all very much.  So, does separation really make the heart grow fonder?

Well, I brought you something very special from my travels – a blog post about calculating average weekly wages!   (You were, expecting, perhaps, a t-shirt or a coffee mug?)

Except for those rare workers’ compensation cases where the average weekly wages exceed the statutory maximum (think registered nurses, perhaps?), carries a potential issue over average weekly wage.  That magical little number determines the temporary and permanent disability rates.  Sometimes it can even be used to calculate the relative exposure for a cumulative trauma case where there are multiple employers and/or insurers.

Recently, the WCAB (quite rightly) affirmed a trial judge’s ruling on how to calculate average weekly wage, in the panel decision of Jacobs v. Institute on Aging.

Applicant was working for the defendant for about 10 months when he sustained an admitted injury.  He testified to working about 49 hours per week.

Applicant’s counsel claimed his average weekly wage should have been $625.26, while defendant was arguing for an AWW of $403.95.  After reviewing the wage statement, the WCJ calculated an AWW of $416.69.  Applicant petitioned for reconsideration.

Assuming applicant actually worked 49 hours per week, that comes out to an hourly rate of $8.50, excluding any potential overtime payment, but California’s minimum wage in 2014 was $9.00 per hour.

Applicant argued that the average weekly wage cannot be calculated in such a way as to allow a violation of the minimum wage laws.  Additionally, it looks like applicant’s counsel decided that a violation of Labor Code section 5813 and regulation 10561(b)(9)(B) was in order, for which the WCAB commissioners admonished her.

In any case, the WCJ relied on Labor Code section 4453(c), and calculated wages based on actual earnings.  In rejecting applicant’s contentions, the WCJ pointed out that the workers’ compensation appeals board is not the proper forum for wage and hour disputes.

Now, readers of this blog will understand that these most humble of internet pages have an incredible degree of hostility to a finding of any benefits being owed.   But, that aside, the theory offered by applicant in this case would drag in considerable other issues as well.  If the employee is not being provided wages because of a termination for cause, and the termination is allegedly some form of contract or legal violation, should the WCAB forum be the place to adjudicate that question?

What about immigration issues – if applicant argues that federal immigration law precluding the hiring of an illegal alien is somehow unconstitutional, should a WCJ be tasked with interpreting the United States Constitution, federal immigration law, and the workers’ compensation laws before overruling Congress?

Whatever allegations the injured worker might make as to broken promises of wages or even the violation of minimum wage laws, the workers’ compensation appeals board has enough to do without engaging in adventures through California’s entire body of law to find additional things to do.

Have a good week, dear readers!

Happy Friday, dear readers!

Your humble blogger brings you an interesting new case today – one that was brought to my most humble attention by the good folks over at Lexis – electronic testimony by the adjuster at deposition.

Often enough, adjusters handling California cases are in other parts of California, or even other parts of the Union.  So, if you’re a sly and sneaky applicant’s attorney, you might consider finding some pretext for a deposition of the adjuster.  After all, a day out of the office, whether spent testifying or traveling to testify, can be brutal – adjusters already have to juggle enormous case files, phone calls, e-mails, and ready long and pointless blog posts from humble bloggers.

But, let’s remember, we no longer write our briefs by scratching and inked feather upon parchment lit by candle light – we copy-paste our pleadings on brightly lit computer screens.  We no longer seal our declarations with a melted wax and our emblems, but with proofs of service signed under penalty of perjury.  And, of course, we no longer have to appear for testimony in person, we have Skype, Viber, and a whole host of other software that allows testimony by video.

What reason is there to require in-person testimony?  We even allow applicants to testify via Skype when they’ve been deported to Mexico!

In the panel case of Simmons v. Just Wingin’ It., Inc., applicant’s counsel sought to have defendant’s adjuster appear in person to testify at trial.  Defendant sought removal, arguing that requiring a claims adjuster who lives in Illinois to appear in person for trial would visit substantial prejudice upon defendant, especially when CourtCall and video conferencing are available.

In reversing the WCJ, the commissioners wrote “[w]e agree with defendant, and see no reason not to use the alternative means of obtaining the claims adjuster’s testimony.”  The WCJ’s order was rescinded and the adjuster was allowed to appear for trial remotely.

From the WCJ’s report and recommendation on removal, it appears the primary concern with having the adjuster appear remotely is the interference with the Judge’s ability to ascertain credibility.  It is not clear, however, if a video appearance would be sufficient for a judge to determine credibility as a witness.

My dear, fellow defense attorneys – would you be content to take a deposition over video conferencing?  Or is there something that makes the difference by doing the deposition in person?

In any case, if this panel opinion becomes the trend, it might take some of the teeth out of the applicant’s demand to depose the adjuster.  Have a good weekend!

Howdy, dear readers!

Today I bring you the panel case of Parker v. DSC Logistics which everyone’s favorite topic was, again, litigated, appealed, and reversed.  That topic, of course, is what clogs up the Boards, runs up the billable hours, and makes workers’ comp such a busy bee-hive of activity: a panel dispute!

Applicant filed a claim alleging injury to the neck and back.  The claim was denied.  Applicant then filed two additional claims, one for a specific and another for a CT.  Although the dates of injury were different, the parties remained the same – same applicant, same employer, same insurer.

Defendant beat applicant to the punch, obtaining an orthopedic panel.  Applicant then underwent an exam with a QME from this first panel, and then requested two additional panels based on the two additional cases.

Defense counsel, not wanting to pay for two additional QME exams, have two additional opinions (from non-orthopedic panels) in the record, or delay the case to afford two additional medical practitioners to send each other letters competing over who can give the injured worker the highest rating of PD coupled with the lowest work restrictions.

So, away went the olive branches and out came the trail briefs of war – applicant presented a passionate case: MORE MONEY!  Defendant also presented a well-reasoned argument:  Navarro holds that you don’t get a new panel for every claim you allege, especially when a claim has already been filed and applicant was already seen by a QME.

The commissioners relied on section 4062.3(j) and 4064(a) for the proposition that the QME must address “all medical issues arising from all injuries reported on one or more claim forms.”

Accordingly, the commissioners interpreted Navarro to require applicant return to the same QME for all injuries already claimed at the time of the first examination.

Some thoughts here – why would applicant want additional QME examination?

First off, it is in applicant’s interest to make the claim as expensive as possible.  Why? Because the more pain an applicant can inflict on a defendant, even if the money does not go directly to the applicant, the more benefit the defendant sees in closing the file, increasing the justifiable settlement authority.

Additionally, with every single opinion entered into the equation, applicant creates more and more uncertainty as to which of the opinions would be adopted, as well as more grounds for appeal and delay of file closure.  If one’s case is weak, delay is a good thing, after all.

So, of course, this is a fairly good result for those brave practitioners on the defense side – outnumbered, if not outgunned by the applicants’ bar.

And a good day to you, dear readers!

Your humble blogger recently read the case of K.  v. Caletti Jungsten Construction (it’s kind of a sensitive nature case, dear readers, hence only the first initial.  If you need the full case name for citation purposes, please drop your humble blogger a line.)

The basic story here is that applicant sustained orthopedic injuries and an injury to the psyche in 2011.  While the parties apparently had no dispute to the rating of the orthopedic AME’s report, which resulted in 62% PD, the psyche AME found 11% WPI which rated to 23% PD, but only 15% PD after apportionment.  At trial, the WCJ did not sustain the apportionment analysis of the psyche and awarded a full 23% PD for the psyche to applicant.  When combined with the 62% of the orthopedic injury, resulted in 71% PD.

On recon, defendant pointed out that the AME apportioned 35% of the psyche claim to prior trauma that was non-industrial, and continued to plague applicant.

The commissioners started their discussion by pointing out that “[t]he parties presumably choose an AME because of the AME’s expertise and neutrality … [w]e will follow the opinions of the AME unless good cause exists to find his opinion unpersuasive.”  And there you have it – the AME’s opinions are sacrosanct – only through a very serious flaw in the opinion or reasoning will the WCJ and WCAB disturb the AME’s opinions, and for very, very good reason.

The name of the game is, of course, judicial economy.  There are injured workers who are waiting to get an order to pay TTD so that they can eat.  There are defendants who are paying huge premium increases based on temporary experience modifications because there is claim lingering.  There are injured workers waiting to get a hearing on their medical treatment request so that they don’t suffer permanent (but preventable) injury.   These are real, substantive issues which have legitimate claim on the time and mental dexterity of attorneys, judges, and commissioners.

Instead, we’re dealing with panel disputes!  Which panel specialty is correct? Which opinions should control (PTP or QME)? Is the report late? How much time did the QME really spend during the exam?  The attitude of the WCAB, from the standpoint of judicial economy, is that AMEs resolve all these disputes – from whether the panel issued timely from the Medical Unit to whether that communication was ex parte as contemplated by Labor Code section 4602.3.

So when an AME says the psyche claim is only 65% industrial, there needs to be a good reason to disturb that opinion.  Otherwise, there’s no good reason to go to an AME.

The commissioners awarded the apportionment and reduced the final PD to 68%.

So what’s the big deal? Did the defendants really win anything? A measly 3%?  Well, yes, it is a victory.  This was a 2011 DOI, so if you’re applying the 15% increase for not making an offer of Regular, Modified, or Alternative Work, the actual PD value presents a gap of almost $30k.  But that’s not all! 68% puts applicant just under the cut-off for a life pension.   That means all the headaches of COLA and commutation, not to mention a whole lot more cash.

Your humble blogger sends his congrats on a job well done!

Happy Monday, dear readers!

The weekend has been kind to us all, and we are eager to get back into it: denying claims, delaying benefits, and, of course, humbly blogging.

Today’s post is on a topic oft-visited by this humblest of blogs: the total medical discharge.

As my beloved readers will recall, this issue has come up before: an injured worker receives a total medical discharge from an MPN physician, and then wants to use the “second opinion” process to contest the discharge.  But, as the WCAB has repeatedly held, a total medical discharge is contestable ONLY through the panel process of Labor Codes 4062.1 and 4062.2 and NOT through the second opinion process.

Why would an applicant prefer one to the other?  Well, back in the day, California Code of Regulations section 31.1 held that when the Medical director receives two or more panel selection forms on the same day, the party requesting the specialty of the treating physician wins, unless the party requesting a specialty other than the treating physician’s writes a persuasive argument for why a different specialty is necessary.  The inference often argued by various parties was that the PTP’s specialty should always control.

Well, that’s gone now – there is no more presumption regarding the treating physician’s specialty.  The current 31.1 directs all disputes to workers’ compensation Judges, and disputes regarding panel specialty are to be handled under section 31.5(a)(10), which requires the parties to write to the Medical Director to determine the appropriate panel specialty, without much guidance as to how this determination is to be made.  (Unless your humble blogger is misinformed, the seat for the medical director is currently vacant, so good luck with that.)

The tactic would go that you’d get a second opinion from a less conservative physician in the MPN, and then immediately use that physician’s specialty as the basis for a panel request, or to allow the applicant to change treating physicians to a more liberal specialty.

But the treating physician’s specialty no longer controls panel disputes, and the gutting of the regulation seems to suggest the legislative or administrative intent to divorce treating physician specialty from panel specialty, perhaps shifting focus to the nature of the injury and the nature of the dispute.

In any case, the recent panel decision touching on this topic is that of Fernandez v. KMART, in which a WCJ found that the primary treating physician’s total discharge report DID NOT satisfy the requirements of 9785(b)(3) because, while the PTP had released applicant with no limitations, restrictions, and provided no future medical care, he did provide that some symptoms “could be further evaluated with MRI as clinically warranted” and that she should engage in home exercise with a stationary bike, poor therapy, ice, use of knee brace and foot orthosis, and ibuprofen…”, and also failed to address one of the admitted body parts at all.

In other words, applicant doesn’t need any further medical care… but she does need further medical care.  Is that clear enough?

Applicant sought a second opinion in the MPN, although your humble blogger can easily be persuaded this was as much a tactical decision as just needing a physician to make a clear and internally consistent recommendation for further medical care.

After a hearing, the WCJ ruled that the treating physician’s report did not constitute a total discharge, and that by denying a second opinion treating physician, the defendant had denied care and applicant could now treat outside of the MPN.

However, on reconsideration, a split panel held that although the treating physician’s report was internally inconsistent, and would warrant a change in treating physicians, applicant had requested a second opinion rather than a change in PTP.  Because of the internally inconsistent report, the defendant should have authorized a second opinion physician.  However, the failure to authorize a second opinion physician did not constitute a denial of medical treatment, and thus did not justify applicant treating outside of defendant’s MPN.

One commissioner dissented, reasoning that relying on such an internally inconsistent report, even for the purposes of denying a second opinion within the MPN, constituted a total denial of care that should have allowed applicant to treat outside of the MPN.

Of interest here is that two of the three commissioners seemed to hold that a second opinion could be used to contest a total discharge… something that seems at odds with the prior holdings mentioned in the Acosta panel decision, which cited section 9785(b)(3) to say that “[i]f the employee disputes a medical determination made by the [PTP], including a determination that the employee should be released from care, the dispute shall be resolved under the applicable procedures set forth in Labor Code section 4060, 4061, 4062, 4600.5, 4616.3.”

By contrast, section 9767.7, regarding second and third opinions, limits the second opinion process to “diagnosis” or “treatment” by the PTP, which your humble blogger would submit excludes disputes related to discharge or the lack of need for ANY future medical care.

But this case should remind us that we need to carefully scrutinize the reports of treating physicians – a conclusory report is insufficient for retaining medical control.  It may be necessary to follow up with the treating physician to request a supplemental report that properly addresses any apparent internal consistencies.

Hello dear readers!

In the immortal words of the little-known poet Rebecca Black, “it’s Friday, Friday.”

And, as your humble blogger is certainly destined to rendezvous with a sip or two of scotch later in the evening, why not bring to my beloved readers’ attention the case of Prouty (Deceased)v. City of Stockton, a recent writ denied case that even awarded attorney fees to the applicant’s attorney!

The deceased Mr. Prouty’s family filed a claim for workers’ compensation benefits, after his unfortunate death due to alcohol use.  The basic facts are that Mr. Prouty sustained an orthopedic injury, which resulted in a psychiatric injury, which lead to alcohol abuse and overuse, which resulted in his death.

Although Mr. Prouty reportedly had alcohol abuse issues prior to his injury, the WCJ found that his wife testified credibly that the problems were “less than they became after the physical injury.”  One doctor opined that the physical injury triggered a relapse into alcoholism, which resulted in Mr. Prouty’s death.

While challenging the doctors’ opinions as failing to meet the threshold of substantial evidence for failing to take a proper history, defendant also raised the intoxication defense of Labor Code section 3600(a)(4), arguing that, to the extent the death resulted from intoxication, it was barred by the Labor Code, reasoning that, whereas other compensable consequence cases include a gradual alcohol abuse that results in organ failure, Mr. Prouty’s one-day binge resulting in alcohol poisoning and death should be barred.

On reconsideration, the WCAB commissioners noted that, while the intoxication defense might bar an injury, the injury here was a cumulative trauma to the back and alcohol was not involved.  Thus, the death was proximately caused by the cumulative trauma, and the intoxication defense would not apply.  Reconsideration was denied.

But what about a defense theory of suicide?  (Not to imply that this was suicide, but more of a question of the viability of such a defense).  Labor Code section 3600(a)(6) serves to bar claims where the employee has “willfully and deliberately caused his or her own death.”  If you are drinking, at one point, so much so that it causes your death… why can’t this be considered death by suicide?

Well, to qualify as a suicide, and thus non-compensable, the language of the statute requires the defendant to prove that the death was willfully and deliberately caused by an employee’s efforts to bring about his or her own death.  That’s a high burden to meet without such things as (1) a suicide note; (2) a history of suicidal thoughts or plan as related to a mental health physician; or (3) some other evidence that this was a plan to kill one’s self.

The other difficulty here is that even if this were a suicide, applicant appears to have put out enough of a foundation to argue that even if this was suicide, the suicide was at least partially caused by the industrial psychiatric condition, which, in turn, was caused by the industrial back injury.

It’s obviously a very tragic turn of events for Mr. Prouty and his family.  But, for those of us on the defense side, it also provides a reminder that our job is not done just because there is a future medical award.  Future medical care should be monitored for signs of deteriorating condition, especially when substance abuse and psychiatric conditions are implicated.

Nurse case managers are a great help in getting such things resolved because they alert the defense as to when additional care is needed.  Primary treatment reports also should keep an eye on substance abuse conditions, whether alcohol, prescription medication, or illegal drugs, and make sure applicants get weaned, get help, and avoid the horrible consequences such as those seen in the Prouty case.