WCDefenseCA

Once in a while, your humble blogger makes it down to the Board to do some lawyering.  And, at almost every venue, grumblings are regularly heard as to how long it takes to get a hearing, or how quickly the various judges’ calendars fill up.  There’s just not enough Board time to go around!

Most of the time, hearings get set at the WCAB in response to a Declaration of Readiness to Proceed.  Forms for the regular DORs and the DOR to expedited hearing both have a little box to provide the filing party an opportunity to comply with an oft-ignored Board Rule: 10250.

10250, subsection d, provides that “[a]ll declarations of readiness to proceed shall state under penalty of perjury that the moving party has made a genuine, good faith effort to resolve the dispute before filing the declarations of readiness to proceed, and shall state with specificity the same on the declarations of readiness to proceed.

But, as seems to be the case, the field provided to state, with specificity, the good-faith efforts made to resolve the dispute, is used, instead, to articulate in as vague a manner as possible, the issues to be addressed.  So, instead of writing “applicant’s demand for temporary disability benefits, made in correspondence dated June 13, 2014, have prompted no response” some practitioners write “defendant unreasonably denying temporary disability benefits.”

Your humble blogger would like to see rule 10250 enforced more strictly.  If parties are required to properly seek informal resolution, and document the same, prior to requesting Board assistance, we might see a bit less traffic at the Board, and the WCJs’ calendars might be a bit more freed up.  Furthermore, if a party is required to seek resolution of an issue prior to filing a DOR, the other party is properly put on notice of the issue to be addressed before the board.

As my beloved readers probably know, the WCAB has approved the new Board rules to go into effect on January 1, 2015.  And, as it would appear, section 10250 is still in there!  But, why keep the rule in there if it is not going to be enforced?

*grumble* *grumble* *grumble*

Back in the old days, before SB-899, parties in workers’ compensation proceedings behaved much like parties in a civil case.  By that, I mean of course, that each party got to select its own expert witness (Defense QME and Applicant QME), and workers’ compensation trials were held in the Thunderdome wing of every Board venue (“Two docs enter, one doc leaves!”)

For those that weren’t with us back then, here is some rare footage of a workers’ compensation attorney laying the foundation for the introduction of two orthopedist QMEs with dueling testimony:

Well, post SB-899, that practice came to an end, and we were blessed with the seamless and streamlined process of panel QME selection.  However, Labor Code section 4064(d) still allowed parties to obtain additional evaluations at their own expense, and have those reports admitted as evidence.

SB-863, however, changed that – it amended section 4064(d) to exclude reports on issues already covered by section 4060 (compensability), 4061 (PD), 4062, 4062.1 (unrepresented catch-all), and 4062.2 (represented catch-all).

So what happens when a report from a “self-procured” QME was obtained after January 1, 2013, when Governor Brown put pen to paper and made the bill law?

Section 84 of SB-863 made all the rule changes, unless otherwise provided, effective on 1/1/13, even for pre-1/1/13 injuries.

That was the ruling, at least, in the panel case of Margaret Batten v. Long Beach Memorial Hospital.  Applicant was awarded a whole lot of PD based on a report obtained under old Labor Code section 4064(d).  But even though the injury is from 2006, and the report was obtained prior to 1/1/13, SB-863 prohibited its admission into evidence after 1/1/13.

So, if you’ve got a 4064(d) report and you’re heading into trial, check the expiration date, you might be able to get it knocked out.

Nothing ruins a Friday for a cold-hearted workers’ compensation defense attorney than having to side with the arguments of an applicant.  Well, probably a few things could make a Friday worse (like realizing that it’s only Thursday), but that’s one of the bad ones.  So it is, as your humble blogger has learned of the case of David Pelletier v. United Structures, Inc.

The subject of this case is the degree to which an applicant has control over the selection of a Nurse Case Manager.  Now, workers’ compensation is riddled with these battles over control: who gets to pick the interpreter for applicant’s deposition?  Applicants get to pick the QME from the panel, but only if unrepresented.  The defense gets to set up an MPN and provide a list of potential primary treating physicians, but applicants get to choose from those primary treating physicians.  How is venue selected when the residency, place of business, and injury are all in Northern California, but applicant’s attorney is in Southern California?

Well, this blog has had occasion to touch on the issue of Nurse Case Manager selection before, and the Pelletier case seems to revisit the subject.

Mr. Pelletier had a Nurse Case Manager who, from the panel opinion, appeared to like to appear by e-mail.  The NCM kept in touch with applicant’s treating physicians, applicant, and his family by e-mail.  Even as applicant was in the hospital for several days, repeatedly having his stay extended just prior to planned discharge, the NCM declined to appear in person to discuss what was going on with the doctors.

The NCM was repeatedly asked to come by applicant, his attorney, and his family, as potential amputation of the leg was being discussed by one of his treating physicians.  Still, the NCM declined to come.

Eventually, applicant informed the NCM that he would no longer have contact with her, and demanded a new NCM, one with whom he could work: trust, communication, etc.  The defense refused, and the matter went before a Judge.

The WCJ denied the applicant’s motion for a new NCM.  Citing Lamin v. City of Los Angeles, a writ denied case from 2004, the WCJ noted that parties were required to confer and jointly select a new NCM.  In this case, there was no evidence of any effort on the part of applicant to do that – he wanted this one gone and a new one appointed.

Relying on the same writ denied case and underlying panel opinion in Lamin v. City of Los Angeles, the WCAB reversed the judge’s finding that applicant was not entitled to a new NCM.  The WCAB certainly found fault with the current NCM for failing to appear at appointments, record diagnoses and recommendations made by physicians as well as concerns expressed by the applicant, and act as a patient advocate.  The WCAB also found fault with Mr. Pelletier for breaking off contact and refusing to cooperate.

The resulting order, which appeared to be rooted in a substance rarely found in California workers’ compensation, to wit, common sense and reason, required the NCM to remain in her role for 10 days (five for mailing and five more for deliberation) and the parties were to confer and attempt to agree on a new NCM.  If the parties failed to agree, they would have 5 more days to provide the WCJ with a list of NCMs with a resume for each, and the WCJ would either pick one from one of their lists of select one on his own.

Although it’s labeled as a grant of reconsideration, really, it isn’t – the WCJ got it right, and the WCAB was just providing guidance on what the applicant needed to do to replace the current NCM.

Now, about your humble blogger siding with the applicant – if we concede that there are cases in which reasonable medical treatment includes the services of a NCM, then that NCM needs to be there – physically.  Doctors sometimes explain more than they put in their notes, or their notes are more detailed than their paraphrasing explanations to their patients.  Patients forget things – such as temporary symptoms, medications, etc.

And, in this case, THERE WAS A POTENTIAL FOR LEG AMPUTATION (I just can’t stress this enough – how do you tell someone who is calling you frantically because they’re going to cut off his leg that you’re just going to send the doc an e-mail?  What would the e-mail even say – patient doesn’t want his leg cut off?  Who does?).

Now, if I ran a service providing Nurse Case Managers, I would of course want to beat out every competitor in terms of pricing.  And, accordingly, I might hire NCMs that will do everything or almost everything remotely, so that one NCM can take on more and more patients.

If you’re a defendant, don’t be lured into this – shell out the extra cash and get a Nurse Case Manager that will be dedicated to fewer patients/applicants.  Get an NCM that is going to know each patient’s file backwards and forwards, and move them along towards a goal of recovery and less treatment needed.  Get an NCM that will have a good bedside manner and inspire trust and confidence from the injured worker, as well as trust and confidence from the adjuster to make sure that neither a pill-happy worker, nor an Rx happy physician is bleeding the reserves dry.

If the applicant and his/her attorney are reasonable, they will agree to a great NCM with lots of experience and a track record of satisfied patients.  If they’re unreasonable, the WCJ will see it and select a good apple.

Now, don’t get me wrong – this is blog post is not meant to comment on the overall competence of any particular NCM.  But, this industry, with its high cost and low profit margins, drives good, quality people to be spread too thin.  Sharp, hard-working adjusters get over-worked and can’t be on top of everything.  Sharp, hard-working associates [in some defense and applicant firms] get overwhelmed by their bosses, and miss details that end up costing a lot of money.

And, yes, sharp, hard-working NCMs get too many files and start appearing by e-mail and phone to keep up.

As Assembly Bill 1309 sits on Governor Brown’s desk, hoping to bar a whole mob of professional athletes from the hallowed halls of the workers’ compensation venues, one group of workers get to continue enjoying California workers’ compensation benefits for non-California work.

For your consideration, I bring to you the case of Jessie Kenlaw v. Houston Comets.  Ms. Kenlaw worked as basketball coach from 1978 through 2008, and visited California a few times in 2007.  The main argument raised in this case was a jurisdictional one: defendant argued that injurious exposure in California is not sufficient for invoking jurisdiction – there has to be an actual injury in California for the defendant to get sucked into California’s meat grinders.

The argument is sensible enough – it’s not right to invoke California jurisdiction for a workers’ comp claim when the vast majority of the “exposure” is outside of California.  After all, we’re not talking about a situation in which the worker was in California for one day out of a 20 year career, but there was a specific injury here.

The Workers’ Compensation Judge, and the Workers’ Compensation Appeals Board, both rejected the argument.  The applicant’s burden is only to establish through substantial medical evidence that her work activities were a contributing cause of her injury, and in cumulative trauma claims, that’s pretty easy to do, because there’s nothing specific that causes the injury, but rather the job in general.

The facts show that applicant coached three games in California, and for each game she arrived in California two days early.  She participated in practice sessions and did coaching work.

But we’re talking about a cumulative trauma period from January 1, 1978 to July 1, 2008.  And for nine days (out of 11,139, or 0.08%) applicant now invokes California jurisdiction.

Although without much legal support, the defense put forth a good theory – it’s roots were in logic, justice, and basic fairness.

By the by, dear readers, if you’re at all concerned about the businesses leaving California, you should also look at these decisions as a reason why employers might not want to send their workers into California, even for a little while.

Perhaps at the next legislative reform happy hour, someone could pipe up about amending the Labor Code to require significant injurious exposure for workers temporarily in California before allowing workers’ compensation jurisdiction to be invoked.

That would be a… wait for it… slam dunk!

Your humble blogger is reluctant to find blame with grown men and women who have a tender spot in their heart for the Easter Bunny, or a secret desire for a particularly generous visit from Santa Claus.  But your humble blogger finds it harder and harder to find folks that have a sincere belief that the California workers’ compensation system does not expose employers, insurers, and injured workers to some horrible, horrible consequences.

A Superior Court Judge recently unsealed a complaint making some pretty serious allegations, including the fact that a large group of hospitals, distributors, marketers, surgeons, chiropractors and other evil-doers have been manipulating, lying, coercing, etc. to get injured workers under the knife and needlessly operated on.  But what the procedures lacked in necessity, they compensated for in permanent consequences and expenses.  They have used counterfeit screws and rods, “runners, cappers and steerers,” and needless surgery prescription after surgery prescription to get injured workers to undergo operations that left them maimed and crippled.

Insurers and employers are forced to pay for these operations, injured workers undergo them and have to life with the permanent effects and… these conspirators enjoy restful nights on beds made of money.

Some of the defendants named in the complaint include:

Tri-City Regional Medical Center; Pacific Hospital of Long Beach; Riverside Community Hospital; St. Bernardine Medcial Center; Spinal Solutions LLC; International Implants, LLC; Comprehensive Intra-Operative Services, Inc.; Summit Medical Equipment; Platinum Medical Group; and the list goes on…

If you have a lien claim or even a medical bill from these facilities, perhaps it’s best to see where this case goes before sending a check.

Your humble blogger also has this thought to share with you: where are the lawyers?  Specifically, where are the applicants’ attorneys that flood the various Workers’ Compensation Appeals Board venues with their bleeding hearts and the plights of their clients.  Where are they when their clients are being pressured into undergoing an operation that will inflate their permanent disability rating (and, coincidentally, the attorney’s fee) but bring disaster to their prospects of future employment or even basic quality of life?

The applicants’ attorneys who have been around the block a time or two know what their clients are going in for, but because your garden-variety AA won’t meet with a client until the date of the Mandatory Settlement Conference, he won’t provide any advice about what’s really going to happen to Joe Schmoe after the knife hits the spine.

It’s stories like these that make your humble blogger hope against all hope that no family member or loved one ever has the misfortune of entering the workers’ compensation system.

Tigran “Tony” Aklyan, of Van Nuys, California, was recently sentenced to 2 years in prison, 3 years of supervised release, and ordered to pay over $650,000 in restitution for his part in a conspiracy to defraud Medicare in a durable medical equipment scheme involving several clinics and fake prescriptions.

The San Gabriel based Las Tunas Medical Equipment would pay for fake prescriptions and then submit the bills to Medicare, charging over $900,000 and receiving over $650,000 over a few years.

Did you receive any bills from Las Tunas Medical Equipment?  Or how about one of the named clinics, Multiple Trading, Inc., doing business as Advanced Medical Clinic?

It’s not that far a jump to think that if a fraudulent outfit like this is submitting fake bills to Medicare for wheelchairs and diagnostic tests, it can do the same for workers’ comp insurers.  And it can take several forms too: overbilling can be dealt with by looking at bill review, but what about billing for services never provided?  It’s not every day that the injured worker will sit down with the adjuster and highlight all the services billed that the worker did not receive.

The complaint also generally refers to several medical clinics located on Rampart Boulevard and on Vermont Avenue in Los Angeles as co-conspirators known to the Grand Jury.

Have you had any dealings with Tony the Tigran or Las Tunas?  Or perhaps from Advanced Medical Clinic?

Do you think Batman has workers’ compensation insurance?  What about Bruce Wayne?  If Bruce is at an event promoting Wayne Enterprises, and jumps into action to fight crime, would Batman’s policy cover the resulting injury or Wayne Enterprises’?

I direct your attention to the recent writ denied case of Roy Ceja v. City of Los Angeles, in which an off-duty police officer sought benefits from the City of Los Angeles for injuries sustained while restraining a suspected criminal while the officer was moonlighting as event security for Live Nation (insured by New Hampsire Insurance Co.)

The workers’ compensation Judge found that the injuries were sustained in the course of Officer Ceja’s activities as a police officer and not a private security employee, because the nature of the duties trumped the time and place of the events.

Here are the facts:  Ceja was employed as a security employee during a live performance put on by Live Nation.  During his shift, he followed a patron who had been previously removed but then returned to threaten some of the Live Nation personnel with a knife.  Ceja identified himself as LAPD and arrested the patron.  During the handcuffing, Ceja accidentally shot himself! (EAMS reflects the injured body part was the hands and/or fingers.)

It doesn’t matter that he was at the Live Nation venue, or that it was during his shift, or that his duties to secure the Live Nation event overlapped with his duties as an off-duty police officer.  When Bruce Wayne puts on the mask and switched to the lifetime-smoker-angry-growl voice, he becomes Batman, regardless of what else he was doing at the time or where he was.

The Judge reasoned that, Officer Ceja’s injury was sustained while off the premises (remember, he followed the patron after he left the event); Ceja identified himself as LAPD; and the actions were to protect the general public.  Finally, LAPD had conducted an investigation and paid Ceja from the time of the injury, through the time at the hospital and the interview with LAPD.

Could such reasoning be applied to non-peace officer occupations?  Imagine if Jill works for Widget Corp managing its online presence, responding to “tweets” and Facebook postings for the company.  While crossing the street and engaged in the service of another employer, she takes out her iPhone and replies to a “tweet” aimed at @widgetcorp, only be get hit by a car… is widgetcorp paying her benefits or the other employer?  What if the other employer is paying her by task and not by the hour, and she is on salary for Widget Corp?

Overlaping duties and multiple employment is a tricky issue, but the guiding light is usually shining from the basics: arising out of and in the course of employment.  Live Nation did not have any duty to protect the public, but only its patrons – those attending the performance.  Once the Sir Stabby Mcknife-a-lot let the premises, he was more of a danger to the public than to the concert attendants.

In any case, WCDefenseCA hopes that Officer Ceja has made a full recovery and continues to his brave and diligent service of the community.

The Department of Industrial Relations is on a roll with this week’s news releases, an earlier report citing “record-breaking results for labor law enforcement in California” having been issued to the community this week.

Apparently, Labor Commissioner Julie A. Su was excited to report that “labor law enforcement under Governor Brown in the first two years of his Administration resulted in more minimum and overtime wages found owing to California workers and more monetary penalties for illegal business practice than in any previous year in the past decade.”

Strangely, your humble blogger’s “in-box” doesn’t include a report of this administrations hot pursuit of fraudulent claim filers, of workers who harass their employers with fake workers’ compensation claims, or of the crippling effect workers’ compensation costs have on small businesses.

Times are tough enough in California, and more regulations, more compliance laws, and more experts to hire in order to stay out of the ever-growing “underground economy” is not going to bring California’s businesses back from the edge of the abyss.  And looting them with fines and penalties before they have a chance to move to Texas and Arizona isn’t going to solve the problem – you’re feeding the fire, not putting it out.

Certainly some people think of evil fat-cat business tycoons, laughing at their poor workers while they light their cigars with $100 bills aboard private jets (much like your humble blogger and his growing media empire).  They deserve what’s coming to them, and their poor workers are the victims.

In fact, your average violator probably has a handful of employees and is bringing home as much money as they are after trying desperately (and in vain) to comply with California’s Byzantine regulations on every venture imaginable.

Instead of driving the last nails in the coffins of small businesses and then high-fiving itself, perhaps this administration should target the elements that drive small businesses into the “underground economy” in the first place – high workers’ compensation insurance premiums (among other costs of doing business).

Here is an idea – if an employer is the victim of workers’ compensation fraud, that employer should be entitled to a California tax credit for all money that the district attorney’s office was unable (or unwilling) to recover.  That total amount should include the cost of investigation, which is often paid for and conducted by the employer (many prosecutors won’t approach such a case until all the leg work has been done for them).

After all, it’s easy for the prosecutor to plea bargain fraud away by waiving restitution to the employer, and then add another “conviction” to his or her re-election campaign while leaving the employer out in the cold, with no recourse except paying more tax dollars to the same prosecutor.  This way, for every dollar the prosecutors of California fail to recover for the employers, there will be one less dollar coming in next year in tax revenue.

Instead, we have self-pleased “reports” of desperate businesses being ground into the dust to the sound of thunderous applause.

The American Medical Association’s Guide to the Rating of Permanent Impairment, 5^th Edition, has two very, very dirty words.  In the less “open-minded” and “modern” venues of California’s workers’ compensation system, an attorney could face sanctions for even thinking them, let alone saying them.  The two dirty words?  “Grip Loss.”

Grip loss is a go-to for upper extremity impairment because it offers the applicant an opportunity to get a maximum recovery for, quite literally, minimum effort.  The less effort exerted by the applicant in performing the grip loss test, the higher the impairment can be assigned as a result of the injury.

The AMA Guides frown upon grip loss, and generally don’t allow the grip loss to be rated in the presence of other impairment to the upper extremity.  For example, if you have an amputation of the fingers or the hand or the arm, you can expect a considerably weaker grip.  (See AMA Guides, Page 507).

Grip loss can be used in “rare” cases, when the other methods of rating impairment do not adequately consider grip loss.

But that doesn’t stop some evaluating physician from disregarding the restrictions of the Guides and uttering the following phrase: “Hocus Pocus, Almaraz Guzmanaus, Alacazam!” and *POOF* triple whole person impairment!

That’s what happened in the case of Angelina Kendrick McGee v. State of California, Department of Justice.  There, the Agreed Medical Evaluator rated grip loss in the presence of carpal tunnel syndrome, without providing “any analysis to justify a departure from the Guide’s limitation of impairment ratings based on grip loss to ‘rare cases.’”

The Workers’ Compensation Appeals Board reversed the workers’ compensation Judge’s findings and award, issuing, instead, a new award which excluded the grip-loss rating.

Now, it’s important to note something here, dear readers.  In days gone by, the workers’ compensation Judge may have elected to “develop the record” and give the applicant’s attorney a chance to solicit additional deposition testimony or perhaps a supplemental report from the AME, allowing him to lay the foundation for an Almaraz/Guzman rating.  But here are some things to remember:

1. Discovery closes at the Mandatory Settlement Conference;
2. The party seeking to rebut the AMA Guides bears the burden of proving a rebuttal (magic words have no power before the Workers’ Compensation Appeals Board);
3. Unless there has been a rebuttal, the AMA Guides should be used on a “straight rating” basis.

In the words of one observer, “it just keeps getting better and better.”

The Workers’ Compensation Appeals Board recently issued a “significant panel decision” on the issue of lien activation fees, echoing an earlier panel decision in finding that lien activation fees pursuant to the new Labor Code section 4903.06 must be paid prior to the lien conference.  (And note, dear readers, merely paying the fee is not enough – it is the lien claimant’s burden to show proof of payment at the hearing.)

As my dear readers may recall, in the case of Jose Pedro Soto v. Marathon Industries, Inc., the lien claimant had managed to pay a lien filing fee by 11:00 a.m. on the day of a hearing which was scheduled for 8:30 a.m.

In this significant panel decision, reviewing the case of Eliezer Figueroa v. B.C. Doering Co., the lien claimant did not appear for a lien conference (the Declaration of Readiness to Proceed having been filed by another lien claimant) and failed to pay the lien filing fee.  When its lien was dismissed with prejudice, the lien claimant, Orthomed, petitioned for reconsideration, arguing that the lien activation fee “is not payable where defendant has not served supporting documents” and that “the new lien regulations lacks [sic] latitude in allowing certain circumstances that are not just black and white.”  (Such grammatical errors make your humble blogger sic.)

In an effort to make these cases a bit clearer, your humble blogger has endeavored to translate Orthomed’s argument as follows: “Waaaaa! But it’s not faaaaaaair! I think the rules should be different!”

Mr. Rock, a spokesman for the WCAB offered the following response:

The WCAB clarified the earlier ruling in Soto: the payment needs to be made before the hearing is scheduled to occur, not when it actually goes.  We’re all familiar with the standing Board policy of “hurry up and wait,” and a lien representative cannot hide out in the cafeteria on the day of the hearing until its payment goes through.

Additionally, there is no “unclean hands” defense to paying the lien activation fee.  It doesn’t matter if the defendant didn’t serve you with medicals, or refused to negotiate the lien payment or said that your finger painting isn’t worthy of his refrigerator door: you still have to pay up and seek redress through other avenues.

Furthermore, no notice of intent to dismiss the lien is necessary: the Labor Code serves as your notice of intent to dismiss.

Is this case binding authority?  No.  But to any workers’ compensation Judge reviewing the issue, it should be a clear signal of how the WCAB would rule.  But in all honesty, why would a WCJ resist the dismissal of liens?

The workers’ compensation system is not here so that Lien Claimant XYZ can bill a defendant $90 for a box of tissues or $400 for the “use of an organic heating and drying device following aquatic emersion and exposure therapy” (towels; bathrobes).

The workers’ compensation system is here to provide injured workers with swift benefits, including medical treatment and replacement for lost wages, and to keep defendants from being crippled with defending (significantly more expensive) tort lawsuits.

The lien claimants can join an MPN or find another host to suck the life out of – comp has had enough.