CSIA Conference!

Today I am at the California Self-Insurers Association Conference in Oakland.  If you see me, be sure to say hello.  Your loyal author will be engrossed in the subject matter, so , sadly, no “live blogging” of the conference will follow.

If there are tickets still available, I can’t urge you enough to attend.  I went to the conference last year and it was informative and interesting – you get to meet a lot of great people too.

I hope to see you there!

Double Dipping at the DMV

Fortunately for those of us practicing on the defense side of California’s Workers’ Compensation system, not everyone is willing to be complacent in blatant acts of fraud.  Often enough, a co-worker or neighbor will report deception and cheating when they become aware of it.

Mia Rachel Brown of West Covina, has been arrested on charges of workers’ compensation fraud, according to this press release by Dave Jones, Insurance Commissioner.

Apparently, while she was receiving disability checks connected to her claimed injury, which (allegedly) occurred while working for Dean Foods, insured by Liberty Mutual Insurance Company, Mia Brown was working for the Department of Motor Vehicles.  At a sworn deposition, she had testified she had not worked since November of 2009.

Although it seems unlikely that the Department of Insurance or Liberty Mutual will recover their costs of benefits paid or investigation and prosecution (thanks to Ms. Brown’s fraud), a plugged leak is a plugged leak, even if the plug is late in coming and pricey at that.

Timing Your Panel Request

The California Workers’ Compensation Appeals Board has issued a new en banc opinion on the issue of timeliness of panel requests.  In Messele v. Pitco Foods, Inc., the defendant objected to the treating physician’s report and proposed the use of an Agreed Medical Evaluator to applicant, setting up the requirements for a request for a panel in accordance with Labor Code § 4062.2(b).

Applicant responded with his own AME proposals and then requested a panel.

Defendant then filed its own request for a panel.  The timeline was as follows:

Date of Injury———————————1/29/10

Defendant’s Objection ****************4/20/10

Applicant’s AMEs—————————-4/26/10

Applicant’s Panel Request *************5/01/10

Defendant’s Panel Request————-5/04/10

The Medical Unit, no longer resolving disputes, issued a panel in response to each request, with different specialties.  The Workers’ Compensation Judge ruled that the 5-day “mailbox” rule of the Code of Civil Procedure (§ 1013(a)) applies, and that applicant’s panel request was untimely, so defendant’s panel stands.

For the folks keeping score at home, the first day the panel request could have been filed would have been May 6 (April 20 + 10 days is April 30; plus 5 days for mailing is May 5, so the first day a panel could be filed is May 6.  In the WCJ’s report and recommendation on applicant’s petition for removal, the WCJ acknowledges this error and recommends that both panels be found premature.

On a petition for reconsideration, which the WCAB found should have been a petition for removal, applicant’s petition was granted and the WCJ’s order was rescinded.  The WCAB found that CCP § 1013(a) and 8 CCR § 10507 require the application of the “mailbox” rule to the process of panel requests.

Applicant’s argument that the mailbox rule doesn’t apply and defendant’s argument that the controlling date is when the Medical Unit received the request, not when it was made, were both rejected.  The rule applies and the controlling date is the date the request for a panel is made.

What does that mean for us in the industry?  Once an objection to a primary treating physician’s report has been made by either side, fill out a panel request form dated for the sixteenth day after the date of the objection.

So if the objection was made on November 1, 2011, the counting begins on November 2, 2011, and the panel request form should be dated for November 17.  As soon as November 17 comes around, the panel request should be in the mail, in order to be the first one in and thereby control the specialty.

As yet another aside, the rules clearly state that the specialty of the panel should be the same as that of the treating physician unless documentation is provided for a good reason to the contrary.  But, in terms of practice, this rule of often enough ignored by the Medical Units and the WCJs alike, and it is much better to be the first to request a panel.

AB 378 On Governor’s Desk

Governor Jerry Brown is facing an overflowing “in-box” of love-notes from the Legislature, each one hoping to bear his autograph and move from the overcrowded and often populated “bills” population group to the powerful elite of good (and bad, just horribly, unspeakably bad) ideas that have become law.

The Honorable Brown can make repetitive signing motions without fear, of course, as California’s Workers’ Compensation system will no doubt provide him with yet another retirement fund upon his leaving office if he should sustain a cumulative trauma to his wrists, sleep disorder, etc., as a result of his work.

But one bill in particular has employers and unions alike hoping for passage.  That is, of course, Assembly Bill 378, which will strive to rein in the compound drugs industry sucking the last few drops of life’s blood out of California’s battered employers.

The problem of compound drugs was mentioned briefly in this post. California has a medical schedule which puts a cap on the amount doctors and medical equipment providers can charge for treatment, procedures, drugs, and equipment.

But this doesn’t apply to so-called compound drugs, which a doctor can both prescribe and make himself.  Combining aspirin with some placebo, a doctor could make a pill that is nowhere to be found on the fee schedule.

In theory, the self-insured employer or insurer could analyze the pills and apply the fee schedule to its component parts, but this brings with it the cost of bill review and litigation, leaving the defense grasping a Pyrrhic Victory.

AB 378 will strive to change this by preventing self-dealing in pharmacy goods, which means no more prescriptions for drugs produced by the doctor or the doctor’s relatives.  The bill also ties the cost of these compound drugs to the “lowest priced product of equivalent therapeutic effect.”

The bill appears to have support from both Labor and Employer groups, and hopefully will bear the governor’s signature before too long.  Naturally, the physicians and pharmaceutical interests will have some objections to AB 378 becoming law and to its application by the courts.

In other words, there are some fun times ahead.

Lien Claimant Recovers In Contested Case

Lien claimants can not recover if there is no underlying industrial injury, right?  After all, the employer is not liable for treatment, temporary disability, or permanent disability in cases where the injured worker can not prove an injury occurred or that it arouse out of employment/caused by employment (AOE/COE).

It follows, then, that if there is no recovery, there is nothing to place a lien upon, and a lien claimant who can not prove injury and causation can not recover… WRONG.  Unfortunately, that is not the case in California Workers’ Compensation Procedure.

In the recent case of Herrera v. Civil Demand Associates, the Workers’ Compensation Judge ruled that the lien claimant Bell community was entitled to reimbursement for a medical-legal evaluation in a case where the employer denied injury.

The WCJ recognized, and the Workers’ Compensation Appeals Board reasoned (in adopting and incorporating the WCJ’s report), that the costs of a comprehensive report must be borne by the defendant when a lien claimant seeks to prove injury to collect on its lien, otherwise the lien claimant would be barred from contested claims.

Lien claimants already make ready use of scorched-Earth tactics, pestering the defense into paying for treatment or procedures not “reasonably required” or sometimes not performed at all.  Now lien claimants can further drive up the threshold for nuisance value settlements, threatening to invoke medical legal costs on top of the expense of discovery, appearances and trial.

The Court of Appeal had the opportunity to correct this mistake, but denied defendant’s petition for a writ of review.  (13 ABR 13,237)

Hopefully, this will not be a case that is followed by other WCJs, and the hordes of reserves-eating lien claimants will remain checked by Thomas clauses.