WCDefenseCA

Alrighty dear readers! It is Wednesday and we are powering through this week like your humble blogger used to power through all-you-can-eat sushi-boat before COVID19, dignity, and middle age but a cruel and regrettable Kibosh on such practices.

So, odds are pretty good that you’re getting at least some reports reflecting PTP visits through tele-medicine.  Sometimes it’s a phone conversation.  Sometimes it’s a video-conference.  I suspect that, sometimes, nothing happens at all but the shadier members of the medical community just can’t help but routinely bill.  Hopefully, due to the diligence of the defense community, and the zeal of our prosecutors will keep that to a minimum.

Telemedicine, as vital as it is during this period of shelter-in-place, has its limitations.  While a psychiatric QME examination might very well be done over video-conference, a physical exam is not so readily performed.  Perhaps the PTP can prescribe medication, but probably can’t administer an injection, right?  So, about that…

Inverse.com has an article about an experimental “surgery” performed on a cadaver by Italian physicians from 9 miles away.  Assistants set up the cadaver and the robots, and then surgeons wearing 3D headsets and using robots controlled over the internet performed the surgery.  The lag between command and response was negligible and did not appear to affect the performance of the surgeons.  Pretty cool, huh?

What does this mean for us in the workers’ compensation world? 

Well, the advantages of tele-medicine are many.  A doctor in one geographic area can provide service to many geographic areas.  The WCAB already uses remote Judges and court reporters as necessary.  When one location is becoming overwhelmed, a less-congested venue can fill in and help.  

Could this approach be used for more invasive procedures?  Can an injured worker report to a clinic and have epidural injections remotely controlled by a doctor?  Could chiropractic manipulations be controlled and guided by a remote chiropractor?

Fee schedule issues are an ongoing point of contention within our beloved workers’ compensation system.   Physicians naturally want to be paid more for their services, and carriers naturally want to pay less.  What if the fees stayed the same but this approach significantly reduced provided overhead and increased capacity for more services?

Laugh all you want, dear readers, but it doesn’t look like California’s Shelter-in-Place approach is going away before the flu season, and we’re likely to be hit by the perfect storm at that point: kids returning to school, businesses reopening out of desperation, and influenza resurging as is tradition.  Technology may, yet again, be the answer.

Now, if you’ll excuse me, your humble blogger’s Roomba has yet again lost its battle with the curtains, which I’m sure, in no way, reflects on the prospects of success for robotic surgeries.

Straight on till Friday, dear readers!

Happy Wednesday, dear readers!

It is no secret in the workers’ compensation community that defendants generally dislike and disapprove of chiropractors, whether as primary treating physicians or as QMEs.  One of the tenets of the cult of the defense attorney is that chiropractors will prolong TD, inflate PD, and drag out a case with unnecessary referrals and treatment.

Obviously, there are lots of chiropractors and the practice is not all that monolithic.  I know a chiropractor or two that I recommend as AME in my cases and know that I will get a report just disappointing enough so that both parties can settle and close the file.  A closed file is a happy file, no?

But, seeing as it is October and Halloween is coming towards faster than a recently fired and disgruntled employee to an applicant attorney’s office, let’s engage in some spooky fear mongering.

According to an article from the University of Michigan, “forceful manipulation of the neck is linked to a damaging side effect: vision problems and bleeding inside the eye.”

The article quotes Yannis Paulus, M.D., of the U. of Michigan Kellogg Eye Center, a 59-year-old woman experienced a “tadpole” shaped spot in her vision after a chiropractic visit which worsened over time, but ultimately resolved.

Aside from vision problems, some physicians have warned of the risks of certain types of stroke, and a warning from the American Heart Association.

Both the article from University of Michigan and the AMA warning state that the likelihood of cervical manipulation causing stroke or eye loss is low, but both also urged patients and chiropractors to be aware of the risk.

So, if you’re looking for a spooky story to tell at the Board, you can claim that stepping foot in a chiropractor’s office will absolutely result in stroke and blindness (and, come to think of it, if the injured worker received chiropractic care and isn’t blind/suffering a stroke, doesn’t that mean that he or she didn’t REALLY attend the appointment?)

In any case, if you do have an overlap of loss of eyesight or stroke as a compensable consequence, chiropractic care might be one avenue of causation to explore.  Since both articles also mention the potential for reverse causation, it opens the door to exploring whether the need for chiropractic care is caused by an industrial injury or non-industrial loss of eyesight/stroke.

Fun times, dear readers!  Now, who is going to go trick-or-treating as a chiropractor this year?  Every defendant will be certifiably spooked.

 

A little known fact is that the Founding Fathers, in drafting the Constitution, knew that one day our ears would be graced with the angelic chords of the Supremes.  Beautiful songs such as “Come See About Me” and “Stop! In the Name of Love” would charm a nation some day.  For that reason, almost 200 years before the songs themselves were ever written or performed, Benjamin Franklin and John Adams insisted that a nod to these artists should feature in the United States Constitution.  Thus the Supremacy Clause was born.

Article VI, clause 2 of the United States Constitution states “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof … shall be the Supreme law of the land; and the Judges in every State shall be bound hereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Why does your humble blogger, a lowly practitioner of an area of administrative law of a single state bring this up?  Well, about that…

California is sort of a Jekyll and Hyde state.  On the one hand, it is on the forefront of innovation.  Technological (and, to some extent, cultural) advancement in California leads the way for the rest of the Union.  On the other hand, Sacramento can’t help but stifle any sort of growth or development that might render the traditional services of government less necessary or important.

So, when Silicon Valley says “hey, how about we do driverless cars?  You’ll have fewer speeding violations and DUIs, and people who can’t afford a car or are too disabled to operate one will still have access to easy transportation?”  Dr. Jekyll says “that’s great! Let’s do it!” and Mr. Hyde says “policing DUIs provides jobs and revenue and what about all the drivers that will be out of work?!?”

Well, it just so happens that not too long ago, all the Silicon Valley big-wigs were sitting around eating avocado toast and listening to The Supremes, when one of them said “wait a minute, why don’t we go Federal?”

The Los Angeles Times is reporting that legislation is making its way through the House and the Senate to provide a single set of rules and regulations from sea to shining sea for self-driving cars. The Self Drive Act (H.R. 3388) “preempts states from enacting laws regarding the design, construction, or performance of highly automated vehicles or automated driving systems unless such laws enact standards identical to federal standards.”

What does that mean for California?  Well, for one thing, if the Self Drive Act actually becomes law, assuming that self-driving car manufacturers can actually comply with it, California’s efforts to keep  self-driving cars off the road (and out of the labor market) might be all for naught.

If you ask your humble blogger (which I assume you would since you’re reading this blog) as much as I hate the federal gubmn’t coming to California to tell us how to raise our organic, free-range, sustainable farmed avocados, this wouldn’t be the worst thing to happen.  Transportation costs would plummet for QME exams and medical appointments, and your humble blogger is very much looking forward to getting real work done during the commute to and from court.

What do you think?

Alrighty, dear readers, your humble blogger has a pop quiz for you.

Why do we have live testimony?  Why can’t all witnesses call/Skype/Facetime in to trial or a hearing?

Most of the WCABs venues have some form of wi-fi available, and almost everyone is sporting a smart phone nowadays.

We already saw in the Simmons case that an adjuster was allowed to appear via Skype and in the Alvarez case, an applicant was allowed to testify via Skype at his own trial after being deported to Mexico.

Recently, the WCAB allowed a deported illegal alien applicant to testify at his own trial via a 4-inch iPhone screen.

In the case of Vargas v. Becker Construction, a recent panel decision, the WCAB did not disturb the WCJ’s allowing of a deported applicant to testify by iPhone.  Your humble blogger is agreeable to the fact that we should avoid “gotchya” litigation in workers’ compensation matters.  However, if credibility is in question, a WCJ needs to be able to observe applicant testify.  Additionally, the WCJ should be able to have certainty that no one in the room is feeding answers or responses to the witness from behind the iPhone transmitting the testimony.

Practically speaking, this might be addressed by having the injured worker sit in front of floor-to-ceiling mirrors so that the trier of fact can confirm no one else is in the room.  But the small screen of the iPhone presents its own problem – how is one to observe credibility on so small a screen, especially if the rest of the hearing room is to observe it as well?

Personally, if the world finally lost its mind and entrusted your humble blogger with a spot on the bench, I would think a phone is too small a device upon which to observe a witness’s testimony (and determine credibility).

It is not clear what the proper course of action is – do the federal and state constitutions’ guarantees of due process (including the ability to present and cross-examine witnesses) outweigh California’s interest in providing benefits to workers that for one reason or another are not present in the country (or state)?

What do you think, dear readers?  Would defendants be willing to have their adjusters and employer witnesses avoid being dragged in from out-of-state if it meant that an applicant could prosecute his or her case from across the border?  As much as your humble blogger is a fan of technology, somehow testimony over a hand-held iPhone screen doesn’t seem to meet the standard of decorum and substance of an in-person trial.

 

Happy Friday, dear readers!

Your humble blogger brings you a tiny bit of news from Sacramento.  AB1244 has been signed into law and will take effect on January 1, 2017.

The bill, signed into law by Governor Brown on September 30, 2016, holds that “[t]he administrative director shall promptly suspend … any physician, practitioner, or provider from participating in the workers’ compensation system as a physician, practitioner, or provider if the individual or entity meets any of the following criteria…” which primarily focus on felony or misdemeanor convictions having to do with fraud or abuse of Medi-Cal, Medicare, workers’ comp, or a patient.

Other reasons for suspension include financial crimes, or fraud related to qualifications, functions, or duties of a provider of services.

Basically, when there is a plea or conviction for medical-treatment related fraud, all of  the fraudster’s liens will be consolidated for a special hearing, across all WCAB venues, and be heard at one hearing at a particular venue, where there will be a presumption that all the liens are based on fraud.

So, what are we going to do on the defense side?

When you get a lien, and especially when you get a notice of hearing on a lien, do some research on the lien claimant to determine if there was a conviction for fraud.  Usually these things make the news.  After that, it just becomes an issue of informing the administrative director.  In many cases, the AD will probably be on this already.

Previously, the conviction for fraud would have already dealt a blow to any lien claimant’s credibility.  And, given the defenses already available, would make it even harder for lien claimants to recover.  However, now, it looks like the State of California may absorb some of the administrative costs (in the sense that the money employers already pay to fund the DIR will now be used to help them fight off liens) in getting rid of some lien claimants.

It’s a good thing, dear readers.  Happy Friday!

Hello, dear readers!  Just recently, your humble blogger overheard the following conundrum at one of the WCAB venues: while unrepresented, applicant had received 100% of the PD value as advances, and nothing was withheld as an attorney fee.  Applicant subsequently became represented, tried (in vain) to increase the PD rating, and ended up where he began, at which point it was time to settle.

But the applicant attorney wanted something for his efforts, however ultimately futile they proved.  The defendant, in response, said that there was nothing from which to draw an attorney fee, seeing how all the PD had already been advanced.  Furthermore, a C&R was not the ticket either: a lien from EDD which would have been paid as part of any C&R would have wiped out any moneys from which to draw an attorney fee as well.

Naturally, the applicant attorney agreed that he should have thoroughly reviewed the case and the facts before expending any effort – the parties shook hands and went their separate ways.  Just kidding, dear readers – trying to see if you’re awake!

Applicant’s counsel claimed that defendant failed to withhold advances for a (possible) attorney to come on the scene, and so owed the attorney fee in addition to rather than out of, the PD value.

Crazy stuff, no?  What’s a defendant to do?

Well, let’s talk about advances first.  Labor code section 4650(b)(1) provides that “[i]f the injury causes permanent disability, the first payment shall be made within 14 days after the date of last payment of temporary disability, except as provided in paragraph (2).”  Paragraph (2), by contrast, tells us that “[p]rior to an award of permanent disability indemnity, a permanent disability indemnity payment shall not be required if the employer has offered the employee a position that pays at least 85% of the wages and compensation paid tot eh employee at the time of injury or if the employee is employed in a position that pays at least 100 percent of the wages and compensation paid to the employee at the time of injury…”

In other words, defendants (at least now) don’t have to make advances if the injured worker is earning at least 85% of pre-injury wages for the same employer, or at least 100% of pre-injury wages for another employer.

But what if advances are due?  After all, as we know from Berry v. WCAB (1969) defendants are required to make advances unless there is reasonable doubt as to the existence of permanent disability (a requirement that section 4650(b)(2) eases, of course).

On the other hand, defendants are required to withhold an attorney’s fee from advances and benefits paid, and failure to do so might expose a defendant to paying the fee on top of the benefits.

So what is a defendant to do?  On the one hand, there is the Scylla of facing penalty for failing to advance the last 15% (and reserving it as an attorney fee).  On the other hand, there is the Charybdis of advancing all funds, and then having an attorney appear on the scene and demand additional payment for “failing to withhold.”

From your humble blogger’s research, it appears that there is no affirmative obligation to withhold 15% in permanent disability advances for an unrepresented injured worker.  Accordingly, the sounder practice would be to continue all advances to avoid penalty for unreasonably withholding.

Practically speaking, however, shouldn’t applicant attorneys be tasked with performing some sort of triage before accepting a case?  And, furthermore, if an applicant attorney takes a case, and, regardless of the effort, generates exactly $0 in results for his or her client… why should there be any fee at all?

My beloved readers may recall that I made the point, some time ago and resulting in many dirty stares and cancellation of party invitations, that applicant attorneys should not receive a fee when they fail to make gains on a settlement offer made when the applicant was unrepresented.

That’s my thinking on it, dear readers.  What are your thoughts?

Hello, dear readers!

Your humble blogger wishes you a very happy Monday – and it truly is!  The Christmas lights are out, the offices are (almost) all closed for the holidays, and the schools are closed as well, flooding the normally calm lives of parents with their idle children.  But not only the cheerful among us are busy this holiday season.  Just as we take moments to reflect on the wonderful life we have bearing witness to science, technology, and innovation cure all the ills of mankind, the Grinches of the world are busy stealing Christmas and the Gubmn’t of California is moving to stifle advances.

Reportedly, the DMV has proposed regulations that would essentially make self-driving cars illegal in California.

According to this draft, “[a] licensed operator will be required to be present inside the vehicle and be capable of taking control in the event of a technology failure or other emergency.  Driverless vehicles are initially excluded from deployment.”

This is only a draft, and it’s supposed to be for a 3-year period only, but you can imagine what effect this is going to have on investors and manufacturing.  Hopefully not too much so that your humble blogger can spend his driving time on blogging instead.

Hearings are being held on January 28, 2016 in Sacramento and on February 2, 2016 in Los Angeles to address these proposed regulations.

The benefits of self-driving cars are pretty clear: release of labor currently occupied in driving professions, freedom and mobility for those physically unable to drive, fewer accidents, etc., etc., etc.  What self-driving cars mean for the state is less in tax revenue from wages of drivers, fewer traffic tickets, and an evaporating demand for public services like transportation.

Sure enough, the DMV is already lining up make it harder for us to replace a lot of the workings of California with something that actually works.  Let’s hope that this draft is revised before it’s implemented.

Greetings, dear readers!

Do you ever sit back, with your feet on your desk, a fine scotch in your glass, and a puzzle dancing in your mind – why can’t we have nice things?  Well, dear reader, THIS IS WHY!

Assembly Bill 305 has passed both the Senate and the Assembly and is now headed for the Governor’s desk.  If signed into law, it would prevent apportionment of permanent disability to pregnancy, menopause, or, in the case of psychiatric injuries, sexual harassment, menopause, or pregnancy.

I’m sure the proponents of this bill see themselves as some sort of champions for the oppressed.  Certainly, it’s not fair that women face some difficulties not visited on men.  Surely, the world would be a better place if no one ever got hurt.  When people do get hurt, the world would be a better place if one’s sex did not exacerbate the burden such injury places on the injured.  Can’t we all think of ways the world could be a better place?

In fact, what we’re going to see is a further increase in the cost of labor in California.  Do you want to see the effect of such policies in the aggregate?  Take a look at data recently released by the IRS for 2012-2013.  California continues to see a dramatic decline in tax-generating population (and tax dollars as well).

What goes with these particular individuals, as they cross state lines? Jobs.  These are the jobs that generate revenue that keeps the government lights on and our absurdly horrible roads in one of California’s two favorite conditions – in need of repair or closed for repair.  California will continue to lose the jobs and services we all enjoy and rely on to other states (or to the abyss).

Or, we can look forward to having many of those jobs replaced by automation: Fast-Food will replace workers with kiosks; warehouses will replace workers with machines; even manufacturing will continue to go automated, as one company in Australia reported replacing 60 welders with 3 robots costing $150,000 each.  These results neither generate income tax revenue for state coffers, nor provide employment for humble bloggers of the workers’ compensation defense variety.

This insanity has to stop.  It is not unusual for California’s legislature to have absolutely no understanding of the difficulties faced by small businesses in keeping the lights on.  It is, however, a bit of a surprise that the same legislators are equally deaf to the difficulty labor is facing in finding work.  Minimum wage can be raised to $1,000 per hour, and PD benefits can be magnified 100 fold, but neither will benefits Californians who cannot find work.

Putting things in proportion, dear readers, I get it – the small increase this particular bill will cause in the cost of workers’ compensation coverage is not to blame for the difficulty that industries employing workers earning less than $100,000 per year are facing in California.  But, as stated before, it is a symptom of a disease, or, rather, a diseased mindset when it comes to how California functions.

What’s your favorite type of shopping, dear readers?  Do you love to show your hunter’s skills by pushing to the front of Christmas shoppers?  Or perhaps you like reaffirming your ancient gathering skills by shopping for a car – going from dealership to dealership until you’ve gathered just the right amount of savings.

Well, for us in the workers’ compensation world, it’s not practice guides or suit-cases we shop for.  It’s isn’t the best surgeon or the most efficient legal research program.  It’s doctor shopping that we love!

Every single practitioner trying to keep his QME (or AME) bemoans the practice of doctor shopping.  Every single practitioner trying to bounce a QME (or AME) can recite, by heart, any reason to challenge the QME/AME status and get another bite at the apple.  It’s not personal and it’s not specific to applicants or defendants.

In the case of Lopez v. Hemington Landscape, applicant sought to get a replacement PQME because the QME was unable to schedule a re-evaluation within 60 days of the request.  Regulation 31.5(a)(2) allows for a replacement panel when a QME can’t schedule an initial evaluation within 60 days (or 90 days if the applicant is in agreement), but is rather silent on the question of a re-evaluation.

Lopez contended that section 31.5(a)(2) should apply to initial evaluations and re-evaluations, which, if sustained, would have entitled the parties to seek a replacement panel.  The matter proceeded to trial and the WCJ found that the request for a re-evaluation is not an “initial request” which would normally start the 60/90 day clock to set an appointment (“cannot schedule an examination for the employee within sixty (60) days of the initial request for an appointment…”)

Other than pointing out that panel and discovery disputes are not final orders, and therefore not grounds for reconsideration, but rather removal, the WCAB didn’t provide much guidance on this issue.  Does the phrase “initial request” refer to an initial request for any evaluation, or, rather, does the initial request have to be only for the initial evaluation?

As noted by the WCJ, the applicant’s attorney pointed out that another WCJ in the same venue had recently found the opposite result: 31.5(a)(2) applies to ANY evaluation.

There are valid arguments on both sides of this interpretation, of course.  On the one hand, there’s a strong policy militating against doctor-shopping.  The reasons to bounce a QME and get a new panel should be fairly narrow, no? After all, if a party gets a bad report (“counsel, I’m medically certain that the nail-gun shooting a nail into his head is industrial…”), it need only wait until it hears the PQME is busy, then request an evaluation and get a new panel.

On the other hand, imagine this scenario: the QME doesn’t set a re-evaluation date… EVER…

Seriously – what’s to stop a PQME from declining to see an injured worker for 6 months? A year? Realistically, it’s probably not going to happen, but it seems like the point in these regulations is to help move these cases along.  Remember, dear readers, it’s not like we can just go out and get our own experts – such a system would be crazy and totally unheard of!

If a QME can’t get his report in on time, bounce him and get a QME who can.  If a QME can’t see the injured worker on time, bounce her and get one who can.  What is the distinction between the initial evaluation and the re-evaluation?

At this point, your humble blogger’s spirit has been broken by worker’s compensation to the point that he’s fine with either result.  He’s not looking for justice or even reason –  just guidance as to what the rule is so we don’t have to have more trials on this little point.

What about you, dear readers?  Would you prefer a world full of rainbows where a QME has to set initial and re-evaluation appointments within 60 days?  Or would you prefer a land of unicorns where a QME can set re-evaluation dates at his or her convenience?  Or would you prefer a world much like our own, only with some clear-cut guidance one way or another?

Hello, dear readers!

Friday is upon us – the weekend looms just around the corner, and, once more, the resources of the WCAB are deployed to address disputes over UR and IMR.

Today I report to you the case of Saunders v. Loma Linda University Medical Group.  Therein, the defendant declined to authorize medical treatment in the form of pool therapy (think swimming, not billiards).  UR timely denied the request for authorization, but the injured worker challenged the IMR decision, arguing that, under Labor Code section 4610.6(d), the IMR decision is invalid.

Section 4610.6(d) provides that IMR must be completed “within 30 days of the receipt of the request for review and supporting documentation…” In the Saunders case, the IMR decision reflects a receipt date of January 29, 2014, and a determination date of June 26, 2014.

The commissioners held that as section 4610.6(d) provides for a 30-day response by the IMR reviewers, and section 9792.10.5(a)(1) provides 15 days for the administrator to provide additional information, resulting in a 45-day-window for IMR to provide a response.  In this case, as IMR’s turn-around time was closer to five months, thereby returning jurisdiction to the WCJ to determine, on the merits of the situation, whether the medical treatment should be allowed.

Citing Dubon II, the commissioners ultimately held that “[a]s with an untimely UR, the issue of timeliness of an IMR determination is a legal dispute that is within the jurisdiction of the WCAB.”  The majority ultimately ordered the matter returned to the WCJ for a determination on whether (1) IMR was timely performed; and (2) if not, whether applicant should be entitled to treatment.

Commissioner Zalewski, however, dissented.  Taking the position that the legislature intended for IMR and UR to be the sole venue for resolution of medical treatment disputes, commissioners Zalewski would have let the IMR decision stand.  Labor Code section 4610.6 provides the grounds upon which an IMR decision can be challenged, and untimeliness is not one of the reasons listed. Furthermore, commissioner Zalewski would have relied on Labor Code section 4610.6(i) “[i]n no event shall a workers’ compensation administrative law judge, the appeals board, or any higher court make a determination of medical necessity contrary to the determination of the independent medical review organization.”

Unsurprisingly, your humble blogger agrees with Commissioner Zalewski’s position: the purpose of SB-863 in this regard was to confine, as much as possible, medical treatment determinations to medical professionals – M.D.s and not J.D.s.

Furthermore, unlike with an untimely UR, a physician (the underlying UR physician) has already reviewed the request for authorization and determined to deny authorization in full or in part.

In a case such as this, if the WCJ or the WCAB decides that IMR is untimely, and the WCAB has jurisdiction to review and decide the issue of medical necessity, it would have to overturn the opinions of a doctor – the exact result the legislature sought to avoid by confining these issues to the UR – IMR process.

Now, your humble blogger gets it – while IMR proverbially fiddles, the injured worker proverbially burns.  But, as discussed above, this is an appeal from a prior timely determination – UR.