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Archive for December, 2011

MPNs Must Include Chiropractors!

December 30, 2011 3 comments

It is no secret at all that your tireless and consistent blogger is a fan of Medical Provider Networks.  He has screamed his approval from the mountaintop of this blog for all to hear.  But, realistically, the MPN is not a panacea: every armor has weak points.

One such gap in the defense was touched on in the recent case of Garcia v. Zenith Insurance Company (2011) 39 CWCR 293.  There, a Workers’ Compensation Judge had awarded applicant treatment outside of the MPN because the MPN did not include chiropractors.  Citing California Code of Regulations 9767.5, the WCJ let the applicant proceed with a non-MPN chiropractor.

The WCAB denied defendant’s petition for reconsideration.

Are you using an MPN?  Does it have “at least three physicians of each specialty…”?  Are there physicians within “60 minutes or 30 miles” of where your employees live or work?  These are all questions to ask, and regularly — the MPN is not a magic want but a scalpel to be used to great effect but only when wielded with precision and skill.

In any case, the good people at Zenith are no doubt working on their MPN right now, looking for honest chiropractors to add to their lists.

Your humble blogger wishes you a happy new year – enjoy the revelry and stay safe.  I will be at your service, bright and early, on Tuesday, January 3rd, 2012.  See you next year!

California Workers’ Compensation Moves to the LETF

December 29, 2011 Leave a comment

According to a press release by the Department of Industrial Relations, the first day of 2012 will see the launch of a new “task force,” named in such a way as to forever doom it to confusion with an illiterate group of left-handed supremacists – the Labor Enforcement Task Force (LETF).

LETF will include the DIR, Employment Development Department, Contractor’s State License Board and several others.  The stated goal is to cut down on the “underground economy” of unreported labor and the attached uninsured employees.

No doubt this is the result of earlier noises coming from Sacramento, promising to combat take the $7 billion of the underground economy and bring it once more into the light of the Golden State.  The effectiveness of this new unit will be revealed in the months and years to come, no doubt.

The press release fails to explain where California found funding for this new unit, but your cynical blogger’s guess places the source squarely in the bottomless well of California’s employers.

Honest employers in California always plot that dangerous course between Scylla and Charybdis.  Although LETF may cut down on the Scylla of a competitor’s lower overhead (reached through overhead cuts such as the illegal treatment of workers’ compensation insurance and tax obligations), the danger of Charybdis, an over-regulating and over-litigating workers’ compensation system, remains firmly present on every employer’s horizon.

To my dear Letfists – Bonne Chance!

Categories: News

On Family Living Arrangements and Dependency

December 28, 2011 3 comments

What is the formula to determine if parents or siblings are dependents?  Under Labor Code section 3501, minors and incapacitated adults are presumed dependent on a deceased parent, and a spouse earning less than $30,000 in the twelve months before the death is presumed a dependent as well.  In all other cases, Labor Code section 3502 allows a factual determination to be made as to who and to what extent a person is a deceased worker’s dependent.

The recent panel decision of Guadalupe Ayon (Deceased) v. Cal Grain and Hay addressed this very issue, holding that a deceased worker must have contributed more to the household than his or her own expenses – any contribution amounting to less than this would only serve to make the deceased worker less dependent on that household.

In Ayon, a deceased worker’s family members, including his mother and sister, claimed dependent status and sought death benefits.  Their claim was supported and defended by the defendant-employer, eager to help them prove their case and more than willing to accept full liability for their various dependency claims.

Why was the defendant so willing to share a foxhole with the applicant?  Because there was another player on the field – the Death Without Dependents Unit.  DWD, drawing its statutory authority from Labor Code section 4706.5, made the claim that the workers’ family should be left in the cold, and that defendant should instead pay to DWD the statutory sum of $125,000.00.

Through deposition testimony, it was discovered that the deceased made only occasional contributions to the household, hardly amounting to the support he received from the common pool.  The Workers’ Compensation Appeals Board relied on the case of Smith v. Workers’ Compensation Appeals Bd. (Walker), which articulated the formula of weighing a deceased worker’s contributions against the costs of his own support to determine who was the dependent and who was the depended upon.

As the applicants failed, in this case, to carry their respective burdens regarding dependency, the DWD unit was awarded their long-awaited dead men’s shoes.

Proper discovery can help to limit the amount of dependents to those actually dependent upon a deceased worker.  Your ever-helpful blogger humbly suggests that you keep this case in mind when next you deal with communal living arrangements or dependents of this sort, but, like the defendant in this case, weigh your liabilities against the DWD unit, which will no doubt be lurking near every funeral.

Categories: Death Case, Defenses

Overbilling in the News

December 27, 2011 2 comments

Adjusters and defense attorneys should, and often enough do, work together to resist the frivolous or inflated claims that clog up and discredit California’s workers’ compensation system.  It’s a relationship that requires trust, hard work, and cooperation from both sides.  When the claim is made that any defense attorney is inflating or “padding” his or her bill, the entire defense community suffers.

In accordance with your humble blogger’s reluctance to name names, I will decline to point out the defense attorney making the accusation or the defense firm being accused – but the allegation has been made by a former attorney-employee of a defense firm that said firm required 3000 hours to be billed annually per attorney.  Furthermore, this accuser alleges that he was required to over-bill his clients to reach that goal, and in failing to do so was released from service.  The American Bar Association has an article on this story here.

The employer-defense firm has denied the allegations and, understandably, is reluctant to reveal the intricacies of its billing and employment practices.

Your wise and understanding blogger has limits to his knowledge – only the plaintiff-employee and defendant-employer know the truth, if any, behind these allegations.  But as a member of the defense community, I feel at least some comment is necessary.

A rabbi in Davis, CA, once told me that when he came home from school one day, his father slapped him and said that people in the community had seen him smoking.  He protested, saying that it wasn’t true, at which point his father slapped him again saying “it’s bad enough people are saying it, you want it to be true as well?”

My experience as a defense attorney has shown me the meaning of loyalty to the client.  The defense community, at least the attorneys I have interacted with, are dedicated to eradicating the appearance of impropriety, let alone the impropriety itself.  I am sure that there are countless hours there that have gone unbilled precisely because of a fear of appearing to “pad” the bill.

If these allegations are true, and I, again, most certainly hope they are not, then the practices of that firm are not the norm.

Categories: News

Merry Christmas and Happy חנוכה!

December 25, 2011 Leave a comment

The warmest greetings of all the season to my dear readers.  Your plump and jolly blogger wishes you all the best!

WCDefenseCA will be back in action on Tuesday, December 27th.

Categories: Uncategorized

5th Amendment Cake and Workers’ Comp Desserts

December 23, 2011 1 comment

Earlier this month, your diligent and dedicated blogger had occasion to discuss the case of City of Redondo Beach v. Workers’ Compensation Appeals Board, in which the Court of Appeals declined to review a panel decision allowing applicant-embezzler to invoke the 5th Amendment right against self-incrimination to avoid testifying about his criminal acts in a workers’ compensation case.  Now comes a panel decision with a different conclusion, although with slightly different facts.

In the case of Bobby Clements v. George Reed, Inc., applicant was receiving temporary disability benefits after sustaining an industrial injury.  However, effective deposition questioning revealed that he had his own wheelchair lift company.  When defendant subpoenaed applicant’s business and bank records, Mr. Clements invoked the 5th Amendment, reasoning that these documents would incriminate him for taking defendant’s temporary disability payments while working at and collecting profits from his own company.  A source of income is a source of income is a source of income, after all.

Your bright and studious blogger, while attending law school, must have missed the lecture about the constitutionally guaranteed right to both have one’s cake and eat it too.  Apparently, so did the Workers’ Compensation Judge and the WCAB commissioners in the Clements case.

The WCJ gave applicant the choice of his right to keep the records private or his right to pursue workers’ compensation benefits, with enjoyment of one eliminating the other.  When applicant declined to withdraw his application, the WCJ ordered applicant to produce the records, and a petition for removal followed.

The WCAB was not persuaded by applicant’s claim that the WCJ was biased, and went on to explain the distinction between a petition for removal and a petition for disqualification.  Moving on, the underlying issue was then addressed.

Citing a string of California Supreme Court cases, the WCAB held that “applicant herein can not have his cake, by receiving temporary disability benefits, and eat it too, by claiming privilege and denying defendant its equally compelling constitutional right to defend itself by rebutting applicant’s claims.”  (So, defendants do have rights in workers’ compensation law, after all!)

As a parting shot, the WCAB noted that applicant failed to make the necessary allegations to support granting the remedy of removal.  The relevant law of removal and reconsideration is discussed here.

So, if you are faced with a 5th Amendment claim, don’t be disheartened by Redondo Beach – applicant may just 5th Amendment his way out of a workers’ compensation claim.

Fraud-o-Coasters

December 22, 2011 1 comment

The world of California Workers’ Compensation can seem like a rollercoaster ride sometimes.  The ups and downs, the twists and spins, and the feeling of gratitude when you get out alive.  For some applicants, however, the relationship between rollercoasters and workers’ compensation is a different one.

April Metzinger of La Puente, pled guilty to charges of insurance fraud after private investigators hired by her employer recorded video of her riding rollercoasters at Disneyland, among other activities that would be at odds with her workers’ compensation claims and deposition testimony.

Metzinger was arrested, and, as part of her plea deal, paid $5,000 in restitution, served two days in jail (credited from before the plea deal), and fined $100.

Meanwhile, the school district that was her employer no doubt already paid more than $5,000 on this claim, let alone its administration and investigation.  The people of Los Angeles County probably paid more than $5,000 in the arrest, detention, and prosecution of this case alone.

Given the fact that this fraudster was a teacher, the lesson learned by her students is not one on which your modest blogger dares to set a price tag.

I understand the difficulty in prosecuting these cases – video is sometimes not enough, and the District Attorney probably has bigger problems to deal with.  But unless we step up punishment of such cases, and, more importantly, recovery for the employers and insurers, the disincentives of workers’ comp fraud a too little to do the job.

Dear readers, please, don’t let me be misunderstood – by no means is your determined and fearless blogger suggesting that the lack of recovery in fraud cases justifies turning a blind eye or allowing frauds such as Ms. Metzinger to go unpunished.  But I am suggesting that the sad fact of life is that loss due to fraud, whether the cost of deterrence or the damage of attrition, is a cost that is not going away and must be factored into employer budgets.  Ultimately, this higher cost finds its way to grocery bills and price tags, and all the fair citizens of California end up paying the price.

Categories: Fraud, News