In the recent case of Mark Williams v. City of Pasadena, the Workers’ Compensation Appeals Board clarified the application of res judicata to workers’ compensation injuries.  Res judicata is the basic legal doctrine of precluding the re-trial or re-adjudication of the same matter.  In the Williams case, the defense argued that applicant’s application for benefits stemming from a claimed injury of hypertensive heart disease was barred because of the previously adjudicated injury of hypertension.

Just to clarify, hypertension, or high blood pressure, is a distinct as an injury from hypertensive heart disease, which is caused, apparently, by high blood pressure.

The factual background of this case is fairly straight-forward: applicant filed an application for alleged injuries to the neck, right shoulder, arm, and hand, as well as hypertension, sustained while employed as a police officer.  Both QMEs (this was a pre-2005 case) both found industrially-caused hypertension but found no impairment caused by the hypertension and no left ventricular hypertrophy.  The case settled by way of stipulation in 2005.

Then, applicant filed a second application claiming an injury to the heart in the form of hypertension and heart disease during a period of 1982-2002.  (If you’re wondering why this isn’t a petition to re-open, I direct you to Labor Code section 5803 — the application was filed in 2008).

So, as applicant signs his application, ready to jump into the world of workers’ compensation once more, the question of whether he has any hypertension-caused impairment has already been decided – tried, adjudicated, evaluated, researched, etc.  There is no hypertension-caused impairment.

And, at least according to the U.S. National Library of Medicine National Institutes of Health, hypertensive heart disease is caused by … you guessed it! Hypertension.

The Workers’ Compensation Judge ruled that the hypertensive heart disease was a progression of applicant’s prior hypertensive condition, and was not a distinct injury, therefore the doctrine of res judicata applied.  The WCAB reversed, citing Western Growers Ins. Co. v. Workers’ Comp. Appeals Bd., for the holding that “one exposure may result in two distinct injuries … if a worker not only suffers a nervous breakdown but also develops an ulcer as a result of work- related stress, there would be two distinct injuries from one exposure.”

Now, far be it from your humble blogger to disagree with the learned wisdom of the Western Growers case.  After all, it makes sense as several body parts could be injured or several conditions can be contracted from one “exposure.”

But, in this case, we have a career-long cumulative trauma that results in, among other injuries, hypertension.  The applicant, with the advice and consent of his counsel, selected a qualified medical evaluator who agreed with the defense QME that there is no permanent impairment caused by his hypertension.

This isn’t the case of a nervous breakdown and an ulcer, this is the case of hypertension becoming hypertensive heart disease long after the claimed injury of exposure and after the issue was settled by stipulation.  In fact, the WCAB noted that the Agreed Medical Evaluator testified at his deposition that “applicant did not have ventricular hypertrophy when he was examined … on April 9, 2006 … the first evidence of hypertrophy was from the October 2006 reporting by [a cardiologist] from Kaiser.”

Be on your guard, dear readers, res judicata appears to be yet another medicine that has lost its potency in the world of workers’ compensation.

In the immortal words of Twisted Sister, “we’re not gonna take, no we’re not gonna take it, we’re not gonna take it anymore!”  And so, dear readers, what will we do?  We’re going to politely but firmly complete yet another survey from the Department of Workers’ Compensation on the subject of copy services and their associated costs.

That’s right, dear readers, it appears that the DWC would like to survey the workers’ compensation community once again: adjusters, lien claimants, defense lawyers and applicants’ attorneys alike – what are your thoughts?

In any case, if you’re interested in giving the Department a piece of your mind, now is the time.

The survey will remain open until July 2nd and can be filled out here.  Give em what for!

This panel nonsense is getting out of control.  In the case of Jose R. Ramirez v. Parking Concepts, the parties went through three different PQMEs before one stuck.

The parties selected a PQME by the notorious process of elimination, but apparently the defense sent a letter directly to the PQME, and even though applicant was copied on it the communication was regarded as “ex parte” and a new panel was ordered.

The parties couldn’t agree on a joint letter to send to the second PQME, so the defense sent its own letter.  And so, a third panel was issued.

That time, however, the defense provided the report of the first PQME to the third PQME.

The applicant’s attorney sought fees for all the extra panel work, and submitted a bill for 96.4 hours.  The WCJ awarded attorney fees, but reduced the amount to 78.1 hours (at $350 per hour, of course).

In response to defendant’s petition for reconsideration, the Workers’ Compensation Appeals Board denied the defense petition, but returned the matter to the WCJ because “[t]he itemization prepared by applicant’s attorney covers work performed over four years, but does not on its face establish a nexus between the prohibited communication and ‘attorney’s fees for related discovery.’”

Your humble blogger has no difficulty finding things to grumble about, especially in the world of workers’ compensation.  But have we resorted to allowing applicant’s attorneys to bite and re-bite the apple in proving something as simple as hours spent working on a case?

Perhaps applicants’ attorneys have no need to keep track of hours spent working on cases – this is understandable given the fact that their recovery is a percentage of their clients’.  If an applicant’s attorney cannot state, with specificity, how much time was spent working on which task in which file, there is probably a good reason for that – the attorney just doesn’t know and is giving a vague estimate.

If such is the case, why should the defense be expected to pay the bills?  Should the defense pay for the lights? The secretary? Perhaps the catering?

In the Ramirez case, the applicant’s attorney had a chance to present accurate, detailed bills which specifically stated the nature, duration, and date of the work performed as part of additional discovery due to the panel disputes.  Instead, the WCJ received and reduced a vague bill, and even after this reduction it was not detailed enough for the WCAB.

Applicant’s counsel had an opportunity to “develop the record” as to the bills, but didn’t.  That should have been the end of it.

To my dear, beloved, readers and the occasional bored web-surfer stumbling upon the blog:

Happy Memorial Day – I hope you spend today picnicking, shopping, grilling, and possibly even remembering and honoring the fallen heroes of the United States.

Instead of the typical, irreverent post, here is a most-reverent video about the march Stars and Stripes Forever:

If you’re in the office, working away, feel free to drop me a line to say hello (otherwise it feels a bit lonely!): gregory@grinberglawoffice.com

Happy Memorial Day!

While a bright-eyed young undergraduate student, your humble blogger was in a small car collision and experienced some mild stiffness in his neck.  Upon seeing a doctor, he was quickly prescribed enough drugs to knock out a medium-sized elephant for the mild and quickly fading pain.  Your humble blogger was shocked at how casually heavy medication was given out.  Naturally, his more cynical friends suggested filling the prescription and sharing it with them to fuel their philosophy, art history, and political science term papers.  What radical thoughts were denied to the world by this blogger’s ethical conduct!

Why am I sharing with you the story of how I avoided a life of drug-dealing to instead enter the even less-admired profession of lawyering (and blogging)?

The good folks at the California Workers’ Compensation Institute have released a new report based on research into drug testing and its costs since 2004.  Drug testing in workers’ compensation is on the rise for two reasons – the first is to ensure that applicants are taking the drugs they are prescribed (instead of selling it on the street as your goody-two-shoes blogger was encouraged to do); and the second it to make sure that applicants are not re-injuring themselves while under the influence of non-prescribed drugs.

Much like Utilization Review, the use of drug testing services has mushroomed into a quickly booming industry.  CWCI’s study shows a usage growth from 4,012 in 2004 to 186,023 in 2011 (an increase of 4,537%.)  The cost of each drug test has also increased from $36 in 2004 to $148 in 2011.  California is estimated to have spent $98 million on workers’ compensation drug testing in 2011.

Are you doing drug testing for applicants?  Aside from its expense in implementation, you may also be paying the price in effectiveness.  For example, is the drug test based on a urine sample?  Is the applicant monitored while he or she gives the sample?  Is there room for “gaming” the system?  Granted, your humble blogger may have seen one too many crime dramas, but if you’re not asking these questions of your drug-test vendor, aren’t you just paying for a middle-man between the applicant and the plumbing?

$98 million is a lot of money – hopefully it was well spent.

Before the Panel QME process became mandatory, a California workers’ compensation defense lawyer faced a different landscape when it came to resolving medical disputes.  Sure, one could always go the Agreed Medical Evaluator route, just as now, but there was a certain honesty and freedom in the way contested disputes were resolved.

Every applicant’s attorney would rent his favorite quack who came with standard-issue Humpty-Dumpty goggles, and every defense attorney would retain a reasonable and qualified physician to offer a medically appropriate evaluation of the applicant’s alleged injuries.  How dare you suggest that your balanced and honest blogger is showing some sort of defense bias?  Nothing could be so wrong or hurtful!

Now, however, the landscape is a bit different – unless the parties can reach common ground with an AME, they are forced to saddle themselves with a PQME.  This gives rise to several problems, but one in particular is the focus of this blog post – work restrictions.

Your typical PQME has a practice treating patients and, to supplement the coffers, accepts PQME evaluation referrals under the state workers’ compensation system.  Dr. PQME knows that no doctor-patient privilege exists because Dr. PQME knows that the applicant is not there for treatment, but for an unbiased evaluation of such issues as causation, impairment, and apportionment.

Imagine a typical PQME – from 9:00 a.m. to 3:00 p.m. the day is stacked with 20-30 minute appointments with treating patients who need the PQME’s opinions to get better: the only one who suffers if the patient isn’t telling the truth is the patient.  After a day of such encounters, the PQME starts his medical-legal evaluation of the applicant.  If the applicant says “I can’t do X” the PQME typically writes down, “applicant can’t do X.”  When the applicant later says “I’m better now, I can do X,” Dr. PQME obliges again, and lifts the work restrictions.

But, legally, the PQME has a duty to both parties – no longer the pocket expert of one attorney or another, the PQME must protect the injured worker from future injury, in that the PQME must impose work restrictions, but also protect the employer in that the PQME must not clear the applicant for work that could aggravate the injury.

What your humble blogger is suggesting is that PQMEs must make more effort to objectively, and personally, evaluate the work restrictions that are appropriate.  It appears there are far too many cases of restrictions imposed and described simply to increase the applicant’s recovery based upon the subjective complaints.

PQMEs are not in the position of the personal physician and should not treat medical-legal evaluations as regular doctor-patient meetings, trusting applicants at their respective words regarding work restrictions.  Rather, PQMEs should follow medically objective standards instead of allowing the applicant to write his or her own work restrictions (and impairments too).

And when PQMEs let subjective complaints and the applicant’s pen decide work restrictions?  The applicant collects higher permanent disability pay-outs before miraculously “recovering” and enjoying lighter work restrictions.  Only by relying on objective signs of impairment can a PQME independently verify applicant’s statements – those that inflate impairment and those that release work restrictions.

Perhaps this is just empty ranting, but your forward-looking blogger hopes that every reform begins with a blog post from an angry workers’ compensation defense attorney.

Happy Birthday, President Washington!

Redcoats and cherry trees beware!

Martin Luther King Day has been a holiday since being signed into law in 1983 by President Ronald Reagan.

Though today is technically a holiday, it looks like plenty private sector offices have their lights on.  I know I am in the office! (Say hello: gregory@grinberglawoffice.com)

So I take this opportunity to tell a joke:

A man walks into a dentist’s office.  The dentist asks: “What can I do for you, sir?”  The man answers: “I can’t shake the total conviction that I am a moth.”  The dentist, confused, tells the man: “It sounds like you need the services of a psychiatrist, and I’m just a dentist.  If your teeth don’t hurt, why did you come in here?”  The man replies (you guessed it): “Well, the light was on.”

Happy MLK day!