Some time ago this blog posted the story of the highest workers’ compensation award ever recorded.  $8.9 million dollars were awarded to applicant, and, of course, a portion of that would go to his attorney as well.  While adjusters cringe and defense lawyers glare angrily at that figure, some applicants’ attorneys no doubt had other reactions.  Some became motivated to get that much money for their clients; some became frustrated that they couldn’t generate such a fee for themselves… and some elected to go one step further.

Dearest readers, do try to bear with your humble blogger as he avoids naming names.  Although he does not hesitate to rightly name criminal defendants and lien claimants sanctioned by the Workers’ Compensation Appeals Board, this is a slightly different matter and the names to be named are only guilty of the crime of being applicants’ attorneys.  Although such a crime deserves punishment indeed, usually taking the form of taunting and ridicule on this blog, the naming of names may be a step too far.

It appears that one of the then-partners of the attorney representing the applicant in the above-referenced case has been claiming that she jointly handled the matter and provided a “significant role” in the representation.  This was news to the disabled client and his father, who claimed to never have met her until after the conclusion of the representation.  Although she received her share of the proceeds as a former partner, she has been attempting to promote her new practice by telling people that she was working on the case as well.

When the two former partners could not see eye-to-eye in private or on the pages of the trade publications covering the story, lawyers were retained and lawsuits were filed.  The former partner sued the attorney on the case to enjoin the alleged libel and slander interfering with her version of the truth.

A Superior Court judge granted the defendant’s Anti-SLAPP motion, and so the truth will continue to be told.

As some of my readers may know, your humble blogger was once a humble associate in a workers’ compensation defense firm before becoming a sole practitioner.  In the spirit of this story, he would like to claim credit for a “significant role” in every noteworthy case handled by that firm in its multi-decade history, even those occurring before his birth.  No doubt the anticipation that the world would one day be graced with your humble blogger’s presence motivated the firm to even more zealous representation.

We’ve all had to deal with our share of goose bumps, frustration, anger, confusion, and an endless list of other emotions and reactions when the curse-word “Ogilvie” comes up.  The case of Wanda Ogilvie v. Workers’ Compensation Appeals Board (2011), unfortunately, held that the diminished future earning capacity (“DFEC”) element of a rating calculation can be rebutted, in theory by either party but in practice by the applicant.

Ogilvie, in its third decision at this point, allowed for three methods of rebutting the DFEC: (1) showing a factual error in the application of a formula or the preparation of the schedule; (2) showing that other industrial factors inhibit rehabilitation and result in a greater diminishment of future earning capacity than reflected by the DFEC; or (3) when the amalgamation of data used to arrive at a diminished future earning capacity adjustment may not capture the severity of all of the medical complications of an employee’s work-related injury.

Recently the Court of Appeal denied applicant’s petition for a writ of review in the case of Valentina Rodrigues v. WCAB, where applicant attempted and failed to rebut the DFEC.  Ms. Rodrigues worked for the County of Sacramento as a custodian, and sustained injury to a laundry-list of body parts in July of 2007.

The matter eventually proceeded to trial, where the workers’ compensation Judge held that Ms. Rodrigues failed to carry her burden in rebutting the DFEC in any of the three methods provided by the Court of Appeal.

Nothing in the medical reporting supported the contention that applicant’s medical complications were anything but normal and those typically sampled in creating the DFEC.  Applicant’s vocational rehabilitation expert also failed to provide a full work up of applicant’s earning capacity, and only provided an estimate.

The WCAB denied reconsideration and the Court of Appeal denied review.

Note, dear readers, that this case was not sent back down to “develop the record” and allow applicant to get her medical and voc-rehab ducks in a row.  Furthermore, the standard set out by the Court of Appeal in Ogilvie III was used to limit defendant’s liability in this case.  As noted in this post, it appears that “developing the record” may be disfavored.

Are applicants’ attorneys entitled to an attorney fee from the money used to set up and fund a workers’ compensation Medicare Set-Aside account?  After all, the applicant’s lawyer has to do some work to get that amount and to get applicant’s future medical needs taken care of, doesn’t he?  Previously, the Workers’ Compensation Appeals Board had held, in a panel decision (Pratt v. Wells Fargo), that the attorney’s fee comes out of everything other than the WCMSA – so all those future medical treatment dollars put no pennies in the pockets of hungry applicant’s lawyers.

Recently, however, there has been a contrary panel decision (Robert Viale v. Lockheed Martin Corporation), in which the same WCAB chided the workers’ compensation Judge for giving “undue weight to a non-binding panel decision” by relying on Pratt.  The WCAB further noted that “notwithstanding the fact that someone at LEXIS deemed the Pratt decision ‘noteworthy,’ prior panel decisions are not binding on WCJs or subsequent Appeals Board panels.”

But… isn’t the Viale opinion just another “non-binding panel decision,” with or without a LEXIS “noteworthy” stamp, which some other WCJ will be chided for giving “undue weight”?

Applicant’s counsel won an additional $50,000 in attorney’s fees through his efforts.  Now, bear in mind, at the moment, your humble blogger has no dog in this fight.  When applicant’s lawyers and applicants are at each other throats, the defense doesn’t really suffer all too much.

However, as noted in this article, there are plenty of times when the defense is suddenly on the hook for an applicant’s attorney’s fees on top of his or her other recovery.  This means that cases such as Viale, and unlike Pratt, could be used to inflate the liability of the defendant to include an attorney fee on the WCMSA.

Let’s hope that future panel decisions lean in favor of Pratt and some binding authority on this topic comes out soon before an employer gets stuck paying double the attorney fee.

What’s the deal with California doctors’ office getting raided all the time?  Recently, the offices of Dr. Rolando Lodevico Atiga, down in the Los Angeles Area, were raiding by state and federal agents after a two-month investigation into a prescription medication sales scam.

Apparently, Dr. Atiga’s past of working in a candy store influenced his tendency to hand out prescription drugs… for cash, of course.  In one leg of the investigation, the good doctor was showed an x-ray of a dog by an undercover officer, only to receive the response “oh yeah, I can see why you’re in pain.”  Could it have anything to do with the giant tail?  Your humble blogger, while a young man and a big-shot clerk at a district attorney’s office, got to observe some parts of a similar operation involving a workers’ compensation fraud investigation and a dog as a patient.

Dr. Atiga allegedly met with patients and prescribed very powerful and addictive pain pills for payments of $200 to $400.  And this doesn’t appear to be the wonderful wizard’s first stepping over the lines.  Past history includes a felony conviction in February 14, 2012 for violating Business and Professions Code section 650(A), as well as other less-than-noble actions.

Your humble blogger is not usually a gambling man, but what would you say the odds are that the soon-to-be Mr. Atiga saw workers’ compensation patients as well?  Or perhaps some of his colleagues did and readily prescribed medication to cash in on a workers’ compensation insurer’s reserves?

Workers’ compensation defense attorneys need to be vigilant and make sure that when something fishy is going on, their clients are informed and the authorities are notified as well.  Somewhere in this story’s timeline, there was no doubt a call or letter sent by someone tipping the police off.

But applicants’ lawyers need to be vigilant against such breachors of the hipporcatic oath as well.  Your clients end up hurting themselves when there is a drug dealer in a white coat not only starting their addiction but also nurturing it to the ruination of their lives.

WCDefenseCA sends its best wishes to the Los Angeles County District Attorney’s Office in prosecuting this case.

Eureka!  No, dearest readers, your humble blogger has yet to strike gold, nor has he found anything all too exciting, except of course, a panel decision from that northern Board – Eureka.  The Workers’ Compensation Appeals Board recently reviewed a decision of the workers’ compensation Judge in Eureka in the case of Donna Larson v. State of California, Department of Corrections.

It appears that the main issue on review is the method of analysis with respect to (1) applicant’s claim of an injury to the psyche; and (2) applicant’s claim to discrimination in violation of Labor Code section 132a.

Applicant worked as an accounting supervisor and, after a worker was transferred laterally to be under her supervision, she began to have what can only be described as personality conflicts with him.  She accused him of sexual harassment, a charge which appears to be unsubstantiated.  He accused her of unfair labor practices for penalizing him for the time he spent as a union representative.

In any case, her complaints were investigated by her supervisors but were eventually dismissed.  She didn’t take this very well and apparently this contributed to her alleged psyche injury.  Some of my readers may recall a similar situation, in the case of County of Sacramento v. WCAB (Michael Brooks, writ denied) in which a supervisor claimed a psyche injury because his complaint about a subordinate did not result in a sufficient reprimand.

Intertwined with applicant’s psyche claim was applicant’s 132a claim.  Defendant argued that the facts underlying the 132a claim contributed to the psyche claim, a finding echoed by the WCJ.  However, defendant also argued that the termination of applicant’s employment had a business necessity defense, which was supported by witness testimony as to the employer’s workload and applicant’s one-year absence.

So, if applicant’s termination of employment was a “lawful, nondiscriminatory, good faith personnel action” as set out in Labor Code section 3208.3(h), and that termination was one of the causes of the psychiatric injury (Labor Code section 3208.3(b)), doesn’t that get the employer off the hook for the psyche claim?

Well, the WCAB relied on the en banc decision in the case of Rolda v. Pitney Bowes (2001) 66 Cal.Comp.Cases 241 (2001), reasoning that for a finding of a psyche injury, a competent physician must take a history of all events contributing to the alleged injury and then make a determination as to whether work events were at least 50% the cause of each individual event.  Then, the physician must determine the percentage of causation attributed to lawful, nondiscriminatory, good faith personnel actions.

The WCJ must determine the psyche injury involves actual events of employment, whether those events were the predominant cause of the psyche injury, and whether any of those events were lawful personnel actions.   Finally, the WCJ must determine if those lawful personnel actions were a substantial cause of the psyche injury.

With respect to the 132a claim, the WCAB held that the Lauher case raised the standard of finding a 132a violation by requiring a worker to show not only conducted by the employer detrimental to the employee, but also that the conduct was specifically targeted towards the employee because of the industrial nature of the injury.  In this case, the defendant presented a business necessities defense.

The matter was returned to the WCJ to prepare findings that conform the outlined analysis for both a psyche injury and a 132a claim.

From the looks of it, however, defendant is in a good position with adequate defenses.  After all, if applicant had hurt her leg skiing and had been gone for a year while the papers built up on her vacant desk, wouldn’t the employer have acted the same way?

Time will tell…

Your humble blogger may often come off as a cynic – and in all fairness, he does have a cynical streak about him.  But note this, dear readers, your humble blogger is also a hopeless romantic.  He believes that love conquers all, and the healing power of love cannot be overestimated or overlooked.  In fact, he brings proof of this very concept to your, his loyal and steadfast readers (and the Google bots who crawl this blog in search of web statistics, and just maybe, true love…)

Modupe Adunni Martin worked as a custodian for a high school in Hayward when she allegedly sustained an industrial injury to her ankle.  The pain and impairment from this injury was so great, that she required crutches and couldn’t even walk or work without pain.  In fact, the San Mateo County District Attorney’s Office callously believed that she was faking the injury, so surveillance was conducted and Ms. Martin was recorded painfully entering a doctor’s office using crutches.

The doctor’s appointment being concluded, she looked to the next item on her agenda, which was, what the San Francisco Chronicle called, a “meet up with a boyfriend for a romantic tryst in a public park.”

In preparation for this meeting, as her heart overflowed with thoughts of her boyfriend and the air carried the sweet scent of romance, she gingerly threw her crutches in her car, put on high heeled shoes, and ran to meet her gentleman caller.  Coincidentally, this was also caught on tape and is the basis for the DA’s case in prosecuting Ms. Martin for workers’ compensation fraud.

Some sources have reported that Ms. Martin also engaged in another activity in the park, one which this family-friendly blog dare not mention.  Need you any more proof of the healing power of “love”?

Ms. Martin has plead not guilty and the trial is set for October 22, 2012.

As always, WCDefenseCA wishes San Mateo County District Attorney Steve Wagstaffe good hunting and good luck in seeing justice done.

Boilerplate pleadings should be discouraged in workers’ compensation.  They might save a little time for the party filing them, but they end up wasting the time of opposing counsel and the Board.  If Labor Code section 132a is an issue in this case – go ahead and raise it.  If it isn’t, refrain.  But if you’re going to raise 132a, then run with it – don’t stamp 132a on every single application.

For example, a worker might return to his job after an injury, get promoted, get a raise, and be held up as an example to his co-workers as a model employee – one who meets misfortune head on and works hard to get past it.  Some applicant attorneys would include 132a in their application.  Why?  Because it’s easier to kitchen-sink a form rather than do a full investigation of a case at intake.

Which brings us to the case of Edwin Mendoza v. J & S Auto Hand Wash.  Applicant worked for Auto Hand Wash and sustained injury to multiple parts of his body over a six-year period ending in May of 2011.  Applicant filed a claim in August of 2011, and (wouldn’t you know it) raised the issue of 132a in his application.  The actual petition for increased benefits was not filed until January of 2012.  A Declaration of Readiness to Proceed was filed by applicant ten days later on all issues except the 132a claim.

Should the 132a claim have been set for trial on the same date as the case-in-chief?  Applicant’s position was that it should not and that discovery had not yet been completed.  But, at the time of the Mandatory Settlement Conference, applicant had almost seven months since raising the issue in his application, and had not begun to conduct discovery on the matter.  The workers’ compensation Judge set all issues for trial, reasoning that applicant has had plenty of time to conduct discovery and has chosen not to.  The clock began ticking when the issue was raised on the application, not when the petition was filed.

Unfortunately, the Workers’ Compensation Appeals Board sided with applicant’s position, granting his petition for removal.  The Board responded to applicant’s claim that he “will be severely prejudiced if a final decision is made on his claim if he has not had the opportunity to conduct discovery.”   With this sentiment, your humble blogger agrees…

If applicant had not had the opportunity to conduct discovery, setting the matter for trial would have been prejudicial.  However, applicant had ample opportunity from August 2011 to March of 2012 to depose the employer or subpoena records.

In the WCJs report and recommendation, it is noted that “[t]he Petition for Removal gives no explanation for the applicant’s not having conducted discovery on the 132a claim.”

I understand the concern of giving applicant a harsh result, but shouldn’t we be trying to move things along?  After all, the allegations forming the basis of the 132a claim were not a surprise – the issue was raised in the application.

On the bright side, an EAMS search reflects that the case has settled by compromise and release.  So perhaps there was a happy ending after all?

It is no secret to anyone that your humble blogger loves cases where lien claimants get their comeuppance.  Such was the case in the relatively recent panel decision of Kathy Capone v. First Bank & Trust.

There, the case-in-chief had resolved and the issue of a lien was set for lien conference – lien claimant blew off the hearing date and blew the deadline by which to object to the Notice of Intention to Dismiss.  The workers’ compensation Judge ordered the lien dismissed and lien claimant filed a petition for reconsideration, arguing that (1) it didn’t get a call from the defendant on the day of the status conference; (2) the failure to appear was inadvertence; and (3) it is entitled to a hearing on the merits.

Now the comeuppance:

The WCJ initially pointed out that lien claimant’s petition is nothing more than a boiler plate “Points and Authorities” in which the contentions are generally irrelevant to the facts of the case.  As it turns out, the WCJ recently reviewed an almost identical P&A from the same lien claimant.

As to the claim of inadvertence, the WCJ describes this as “cavalier” and notes that the failure to appear is a pattern and recommends the penalty of $1,000.  Furthermore, citing California Code of Regulations section 10240, the WCJ noted that lien claimant could not have appeared by telephone, but even if it could, it should have notified the defendant of its intention not to appear and provided its telephone number.  Defendant has no obligation to spend all day at the Board staring longingly at its phone, wondering why lien claimant is playing hard-to-get.

In response to lien claimant’s petition for Reconsideration, the Workers’ Compensation Appeals Board adopted and incorporated the WCJ’s report, denied the petition, and noted that the WCJ may consider the question of sanctions.

To the handful of lien claimants who read this blog – you need not fear this treatment of your humble blogger’s scathing quips if you don’t waste defendant’s time with failures to appear or showing up to lien conferences without preparation or authority.  If you have just too many cases to keep track of, then (1) hire more people; or (2) take fewer cases.  As a defense attorney, I am not responsible for subsidizing a failed business model.

WCDefenseCA gives a hearty “Huzzah” to the WCJ for an excellent report – this is how the lien abuse of the workers’ compensation system gets pared down.

Dearest readers, do you like word association games?  I do, because you can never give a wrong answer, as demonstrated here:

So let’s try it now:  Dr. Sana Ullah Khan.  Dr. Alexander Zaks.  Accident Help Line Medical Group.  Does Fraud come to mind with any (or all) of these?

State Compensation Insurance Fund, affectionately known as SCIF by those who are “in the know” (or can form names from the first letter of every word in an entity’s title) is claiming that Drs. Khan and Zaks participated in “patient mills”, submitting fraudulent claims and inflating workers’ compensation bills, even cooperating with Bruce McIntyre Roth, a SCIF in-house attorney at the time, to inflate settlement amounts.

Here’s hoping that Roth did not breach his duty of loyalty to his client/boss, SCIF.  Not that I know Mr. Roth personally, but the last thing any attorney in California wants to see is his profession smeared by a person who betrays the trust of his client – either through willful deception or through incompetence and neglect.  Rest assured, dear readers, the alleged conduct is by no means the norm, and the honor of the profession overall remains intact.

The numbers involved in this case are pretty big – we’re not talking about peanuts once the amounts claimed by SCIF include $2.4 million for translation services (which were not rendered) and additional bills for deep massages not offered by the doctors.

Have you had dealings with any of the players in this case?  If the defendants, Zaks, Khan, and Roth, actually did everything as alleged, it’s possible that they ripped off more insurers/employers than just SCIF.  After all, it has been alleged that employees were given bonuses based on the volume of procedures they assigned/prescribed/performed, regardless of the need or complaints of the patients.

So check your treating physicians and lien claimants – you might be able to knock out a few bills or at least hold off payment until this case is decided.

Lexis has a great blog post about Labor Code section 4061 and the timeline for a request for a panel.  Labor Code section 4061 subsection (b) provides an opportunity for the employee or the employer to object to a determination of a medical treatment with respect to the existence or extent of permanent impairment or limitations or the need for continuing care.  But, for whatever reason, there is no time limitation imposed upon the parties for when to object.

An applicant on the receiving end of an adverse utilization review report has 20 days, if represented, and 30 days, if unrepresented, to object.  (Labor Code section 4062)  But what about objecting to a treating physician’s determination with respect to whether an injury has been sustained at all, or the extent of the disability caused by the injury? (Labor Code sections 4060 and 4061)

The Lexis post brings to light the case of Kathryn Benson v. City of San Diego, in which a split panel ruled that applicant’s request for a panel under Labor Code section 4062.2, three years after being declared permanent and stationary with no impairment by her treating physician,  was timely and the PQME report was admissible.

Defendant argued that the request was untimely and that applicant should not be able to revisit a treating report that had so long rested undisturbed.  In reviewing the arguments, the workers’ compensation Judge relied on the case of Strawn v. Golden Eagle Insurance Co., a 2000 panel decision.  In that case, the panel held that a 4-month wait to obtain a Qualified Medical Evaluator was unreasonable.  Although there is no express time limitation, an objection must be made within a reasonable amount of time.

The split panel in the Benson decision rejected the WCJ’s reasoning, relying instead on the facts of this case Benson case.  Of particular note was the fact that applicant wanted to return to full duty and was following the treatment regimen of the treating physician.

However, the panel does note that “[o]ur conclusion in this case does not mean that there are no circumstances under which a QME report should not be allowed into evidence because of unreasonable delay in objecting to a treating physician’s opinion.”

It can be so difficult to watch the clock waiting for applicant’s right to request a panel evaporate slowly… slowly… and never knowing when that poisoned well is really dry.

So what can a defense attorney do to keep a panel request from coming out of the wood work?  Well, here are some factors to consider:

• Have 20 or 30 days passed since the treatment report issued?  Although there is no firm restriction of 20 or 30 days (depending on applicant’s representation) for 4060 or 4061, the 20/30 time limit certainly provides grounds for what the legislature considered “reasonable.”
• What is the reason for the delay?  Was the applicant being strung along, as the WCAB found in this case, or is this simply a case of workers’ compensation laches.
• Is the applicant a repeat player?  Is it reasonable for a person who has had workers’ compensation claims in the past, claims that have run the gauntlet of the workers’ compensation system.  An applicant that has been represented in the past has no reason to claim that he or she didn’t know the benefits of hiring an attorney.  And, once the applicant is represented, there should be no excuse for a failure to timely object and request a panel.
• Has the defendant sustained some sort of prejudice because of the delay?

Do you have a story where you’ve tried this argument one way or the other?  Was the result unreasonable? Unreasonably unreasonable?  Or perhaps reasonably unreasonable (it is comp, after all!)