WCDefenseCA

If a car is ever invented that uses cynicism for fuel, California’s workers’ compensation system will likely serve as the mother lode for this amply abundant resource. 

Your humble blogger has heard countless accusations from bitter applicant attorneys that the only reason to go to trial instead of stipulating to 100% in every case is so that defense attorneys can bill more.  How often have we heard that insurance companies are lighting Cuban cigars with $100 bills paid for by the suffering of injured workers?  And certainly, there is no such thing as employee workers’ compensation fraud – it’s always just the employers using misinformation to poison the well of public discourse.  Nonsense, certainly, but there’s plenty of it to go around.

Well, the defense community has its cynics too, particularly about suspected but rarely proven schemes where certain applicant attorneys and vendors are in the cahootiest of cahoots to enrich themselves not by obtaining appropriate benefits for injured workers, but by scamming the system at the expense of consumers.

It’s often a jolt to the system when there is an investigation and a conviction of such a scheme, but it happens now and then.  It appears that Jon Woods, Esq., has been convicted of 37 felony counts of insurance fraud and sentenced to four years in state prison and ordered to pay restitution to several insurance carriers. 

New Santa Ana reports on a scheme to charge attorneys and vendors fees for referrals of clients.  As alleged, Jon Woods also worked with Edgar Gonzalez, using his subpoena company, USA Photocopy, in exchange for having various business expenses of Mr. Woods paid for by Mr. Gonzalez.

So, besides getting deeper entrenched in our cynicism and convictions that there is a giant conspiracy out there to defraud every workers’ compensation defendant, what can we do?

Well, if you have liens from USA Photocopy, you may want to question them and look closer based on these revelations.  Furthermore, in any case where you have any subpoena service with a lien which also has or had Mr. Woods as the applicant attorney of record, you may want to consider looking closer at the basis for the subpoenas.  This conviction suggests that if one apple in the barrel was rotten, the rest may have turned too.

Don’t let this sour you, dear readers.  This is a reason to be ever vigilant against fraud, but not to see it everywhere.  There are actual employees in California.  Those employees do, on occasion, actually sustain injuries.  And, upon seeing the benefits notices and the panel process, not to mention being seen by a particularly grumpy workers’ compensation clinic doctor, some of those actual employees with actual injuries might actually seek legal counsel.

The vast majority of the cases we deal with are not fraud, so let’s let this story fuel our attentiveness and our determination to catch dirty hands in cookie jars when the situation calls for it.  Your humble blogger, as always, remains eager and willing to cheer you on in doing just that.

Happy Monday Dear Readers!

Pop quiz for you – does a body part have to be plead or claimed by an applicant in order for him to receive medical treatment for that claim?

We touched on this a bit in an earlier blog post where a lien claimant psychologist could not recover when the application never alleged psyche as part of the claim.  Well, the same result was reached in the panel decision of Jiminez v. Yang Wu International Inc.  Lien claimant sought recovery for dental medical treatment, but applicant never alleged dental/jaw/tooth injury, although he did claim injury in the form of various orthopedic and respiratory conditions.

A C&R was reached and approved by a WCJ but there was no dental injury plead in the original application nor in the C&R.  The WCJ found no liability on the part of defendant for the dental medical services, and the lien claimant appealed.  In affirming the WCJ’s ruling, the WCAB noted that the underlying medical report did not address why the dental medical treatment “was reasonably required to cure or relieve applicant from the effects of his industrial injury.” 

Central to this reasoning was that the lien claimant bore the burden of proof, and merely showing that medical treatment was provided is insufficient. 

The WCAB rejected the theory advanced by the lien claimant that the (alleged) fact that “defendant had notice of the claim of dental injury” was in any way relevant to the analysis. 

The reasoning is sound, of course, but imagine if a contrary finding was reached: the mere existence of an industrial injury would render the employer liable as a general health insurer for anything and everything that ailed the injured worker.  Would an admitted back injury give rise to liability for orthosis for a pre-existing hand injury? 

Aside from the good result for the defense, this case is a valuable reminder to us all that pleadings matter and should be examined in detail, both at the inception of the case and in contemplating which body parts to include in the C&R.

Happy Monday, dear readers!

Here we are again, still slugging our way through our beloved swamp of California’s workers’ compensation system, and your humble blogger is here to curate the culture clash between old and new, the past and the future, the traditional and the modern that plays out in our workers’ compensation system.

I bring you the panel decision in the case of Aguilar v. Vanitas Manufacturers, Inc.  for two reasons.  For one, it is a defeat for a copy-service lien claimant, which always warms the cold, hard heart of your favorite defense attorney (that’s me, right?)  The other?  Well, we have more guidance about the effect on deadlines of different forms of service.

In Aguilar, a WCJ’s trial decision was e-mailed to the lien claimant, which then took the full 25 days to file a petition for reconsideration (20 days plus 5 for mailing).  Defendant and the WCJ both opined that the petition for reconsideration was untimely because the time to act was 20 days plus 2 days for e-mail service.

To start, let’s talk e-mail vs. snail mail.  As we all know, mail service can take up to five days depending on how quickly the USPS can process the letter and deliver it.  E-mail, however, is instant (or nearly so).  Under California Code of Civil Procedure section 1010.6(a)(4)(B), when a document is served by e-mail the deadline to act on that document is extended by two days.  By contrast, California Code of Civil Procedure section 1013 provides that service by U.S. Mail in the same state increases the time to act by five days.  Accordingly, one would think, looking only at the CCP, that the means of service of a document affects the number of days remaining to act.

But one would be mistaken, according to the Aguilar panel.

Citing the en banc WCAB opinion of Messele v. Pitco Foods, Inc. for the proposition that “the WCAB’s Rules govern service if they differ from CCP section 1013”, the panel applied that reasoning to CCP 1010.6 and cited 8 CCR 10605 which increases the time to act by 5 days for service by mail, fax, e-mail, or any other method besides personal service.  Presumably, carrier pigeon service would work as well?

The interesting thing is that this rule is a little disconnected from reality.  Fax and e-mail arrive immediately, much like personal service.  Further, a respondent who is out of state gets extra time to act but while out-of-state addresses take longer to reach by U.S. Mail, distance is of no relevance to e-mail or facsimile.

So, as reaffirmed by the Aguilar decision, service by e-mail in a matter before the WCAB provides an additional 5 days to act if the street address on the official address record is within California.

But that’s about where it stops going well for the lien claimant.  Though the petition for reconsideration was ultimately ruled timely, the WCAB affirmed the trial Judge’s analysis.  Copy service lien claimants bear the burden of proving that there was a contested claim, that their services were to address the contested claim, and that their charges were reasonable.  Defendant’s failure to do bill review does not serve as a waiver of any sort.

If this holding sounds familiar, it should, as this was the finding in the ruling issued by the WCAB in Torres v. AJC Sandblasting (2012, en banc).

So, not a bad result and a useful panel opinion to keep in mind.

Straight on till Wednesday, dear readers!