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Archive for February, 2012

On 132a and Fitness for Duty Exams

February 29, 2012 Leave a comment

This was a close call.  A community college police offer alleges an injury to his psyche and goes off work for several months before returning to full duty.  He is on the job, gun and all, for two years before his case resolves, settling by way of stipulation to 38% permanent disability.  When human resources gets wind of the settlement and the terms of the settlement, the director insist he undergo a “fitness for duty” evaluation, and is then found by the evaluator not to be fit for duty.

After some unsuccessful effort to find an alternative, non-gun-wielding job for applicant, he was let go.  Then came the 132a claim.  Labor Code section 132a prohibits discrimination based on workers’ compensation claims.  This means that an employer can not retaliate against an injured worker for filing a claim, or treat an industrially injured worker any worse than a non-industrially injured worker.  WCDefenseCA has had occasion to touch upon this hazardous area of the law before.

The issue came before a workers’ compensation Judge, who found that defendant had violated section 132a.  WCDefenseCA does not normally side with WCJs who side with applicants, but in all fairness to this WCJ in this case, this was a close call.

Applicant was told to undergo a fitness for duty exam and eventually dismissed after two years on the job without a problem, and the triggering mechanism for this was his award.  In other words, it does not look good.

On the other hand, you have a guy walking around with a loaded gun, confronting citizens after their real or imaginary violation of the law.  Public safety is an issue, and someone rendered 38% permanently disabled as a result of a psyche injury could well be perceived as not the best candidate for such a position of authority.

The Workers’ Compensation Appeals Board reversed, granting defendant’s petition for reconsideration, reasoning that applicant had failed to show it was the industrial nature of his injury which triggered the evaluation and termination of employment.

After all, if human resources discovered that applicant had sustained an injury to his psyche that caused 38% permanent disability while engaged in some non-industrial activity, defendant would have likely proceeded in much the same way.

Employers often have “fitness for duty” exams, but when the exams are conducted on a discretionary basis, 132a claims tend to arise.  It is important to tread carefully around this area, and pay particular attention to being even-handed with respect to the nature of injuries, industrial and non-industrial, when drafting policies.

Categories: 132a

Life After Workers’ Compensation…

February 28, 2012 Leave a comment

In the 1976 film Logan’s Run, Michael York asked the machine governing a futuristic dystopia, “is there life after workers’ compensation?”  Well, it appears that there just may be.

Former Court Administrator Keven P. Star is gathering support for his bid to become a Superior Court Judge in Sacramento County (Full disclosure: Keven is an old friend of your honest and fully-disclosing blogger, and to the extent that a workers’ compensation defense blog can support a citizen’s candidacy for a superior court position, WCDefenseCA certainly does).

Aside from his work in the California workers’ compensation system, Keven Star has also served as a Major in the Army Reserves (JAG) and a Deputy District Attorney in both Santa Clara County and Sacramento County, where some of his time was spent prosecuting workers’ compensation and insurance fraud.

Keven Star’s opponent is Superior Court Judge Tami R. Bogert, who was appointed by Governor Arnold Schwarzenegger in December of 2010.

The vote is not until June 5, 2012, so an answer to Michael York’s question will have to wait until then.

Categories: News

Using MORE Sanctions to Restrain Lien Claimants

February 27, 2012 1 comment

Some time ago, your dedicated and consistent blogger reported on the tactic of using sanctions to restrain lien claimants. After all, if lien claimants want to leverage the cost of litigation to force a settlement, why not turn the tables and leverage the cost of sanctions to knock out baseless liens?

In California’s workers’ compensation system, defense lawyers and applicants’ attorneys agree – liens are not unlike a locust swarm plaguing the system.  The arm movement necessary to swat one only exposes the swatter to more, and all the while they ravage and consume all the green of the land.

It looks like this workers’ compensation lawyer is not just howling into the wind anymore.  In the case of Myra Campos v. Keiro Nursing Home, lien claimant Rift Interpreting filed a lien for interpreter services, but failed to appear at a lien conference and then insisted on proceeding to a lien trial without any apparent evidence to support the validity of its lien.

In fact, it appeared to the workers’ compensation Judge, the Workers’ Compensation Appeals Board, and now appears to your attorney-blogger, that lien claimant expected to use the cost of litigation, rather than the chance of prevailing on the merits, to leverage a settlement.

No doubt, in the past, this very tactic had worked to great success for Rift Interpreting and other lien claimants.  I have had lien claimants pull this stunt before, but to considerably less success than they were hoping for.

The WCJ not only disallowed the lien, but also held that “the activities undertaken by [lien claimant] were egregious and frivolous, warranting sanctions in the amount of $2,500.00 plus the per-capita share of reasonable value of the services rendered by defendant.”

The WCAB denied lien claimant’s petition for reconsideration, noting that lien claimant had not even remotely approached the burden set out in Guitron v. Santa Fe Extruders (2011, en banc), which required interpreter lien claimants to show that (1) that the services provided were reasonably required; (2) that the services were actually provided; (3) that the interpreter was qualified to provide the service; and (4) that the fees charged were reasonable.

Dear readers – don’t feed these lien claimants, even for tiny claims.  I remind you of the story of Three Billy Goats Gruff.  It appearing that the Appeals Board has grown tired of these extortion tactics, now is the time to collectively raise the cost of doing business on lien claimants and cut the cost of doing business in California.

132a and the Kitchen Sink Subpoena

February 24, 2012 Leave a comment

Labor Code section 132a allows applicants to sue their employers for “discrimination,” which is normally some allegation of an adverse action taken against an employee because of an industrial injury.  By law, employers may not be insured for 132a claims and must bear the risks of liability and the costs of litigation themselves.  Non-workers’ compensation attorneys often find themselves asked to advise their business/employer clients in 132a matters, thinking this will be no different than contract disputes or employment law litigation.  It is different – save your sanity and contact a workers’ compensation attorney to help navigate the murky, murky, murky waters.

Recently, the Workers’ Compensation Appeals Board issued a panel decision in a 132a case, granting defendant’s petition for removal of a workers’ compensation Judge’s discovery order. (Lidia Borrayo v. Tobar Industries.)

To prove her case of discrimination, or possibly to scare the defendant into settling, applicant’s attorney proceeded on a protective order instructing defendant to produce voluminous records, including trade secrets and information about third-parties (other employees).  The defense lawyer properly sought removal (as opposed to reconsideration) seeking a significantly narrower scope for the discovery order.

Among the information originally sought was the amount defendant pays for workers’ compensation insurance, for its group health insurance, employer profit and loss statements for 2008-2010, balance statements, and a significant amount of information about other employees laid off or hired in the past.

The WCAB correctly reasoned that allowing the discovery order to stand would subject defendant to significant prejudice and irreparable harm, and ordered the case returned to the WCJ to have applicant prove that this seemingly irrelevant information is “reasonably calculated to lead to the discovery of admissible evidence.”

Applicants will often enough serve an employer with a “kitchen sink” subpoena, wanting anything and everything, most of which is completely irrelevant to the 132a claim.  Part of this is because applicants’ attorneys don’t want to waste their time narrowly tailoring a subpoena when there is a chance an uninformed defendant will comply with all of it.  Part of this is because the prospect of burdensome and exhausting discovery compliance can scare up more settlement dollars if the employer is not properly advised.

If you find yourself on the receiving end of these boilerplate subpoenas, have your attorney push back – there’s no reason why a former employee who will likely go to work for a competitor should be provided with your trade secrets.

DIR to Hold Public Forums

February 23, 2012 Leave a comment

Do you ever get frustrated with California’s workers’ compensation system?  Do you get angry with the ongoing litigation and the ever increasing attorneys’ fees?  What about the way the system turns mildly injured employees into completely system-dependent non-workers, relying on their lawyers to continue pumping unnecessary benefits out of employers and insurers?

Well, if you are frustrated by this and more, there are only so many things you can do.  One option, of a somewhat limited effect, is to start a blog and rant into the internet (you get to meet a lot of nice people that way, actually).  Another, of course, is to bend the ear of the Department of Industrial relations, and tell them: “Now see HERE!”

What’s that? You don’t think the DIR cares what you have to say?  Well, you couldn’t be more wrong – “The Department of Industrial Relations (DIR) and the Division of Workers’ Compensation (DWC) will hold a series of public meetings across the state to provide open forum discussions on the current issues in workers’ compensation and to gather information from stakeholders and members of the public on suggestions for improvements.”

So if you are in Sacramento, Los Angeles, Fresno, San Bernadino, La Mesa, or Oakland (oddly, not San Francisco), don’t miss your chance to attend one of these quasi-town hall meetings.  If your ever-busy blogger can slip away from his desk for a few hours, he will try to sit in on the one in Oakland.  Would anyone care to meet me there?

Testimony will be limited to 3 minutes per speaker, unless the speaker can make his or her testimony rhyme, in which case he or she will receive six minutes and possibly some applause.

I have been personally asked to advise my spirited and passionate readers that pitchforks, torches, huge cauldrons of heated tar, and bags of feathers will not be allowed at the hearings.  

Categories: DIR, News

No Work Permit? No Problem!

February 22, 2012 3 comments

In the case of Felix Nino Mota v. Allgreen Landscape, applicant sustained injury to various body parts, and his claim was eventually resolved with a stipulated award of 89% with future medical care, namely in-home care which his wife began providing.  Mrs. Mota entered the country legally but did not establish she has the right to work in the United States.  She learned how to take care of her husband from his nurses and doctor.

Applicant’s wife sought to have defendant pay the value of her in-home care services.  Defendant countered with an offer to provide 16 to 18 hours of home health services daily with a licensed vocational nurse.  Applicant refused.

Following a trial, the workers’ compensation judge ruled that the Immigration Reform and Control Act of 1986 does not bar applicant’s wife from receiving the “reasonable value of her services.”

In denying defendant’s petition for reconsideration, the Workers’ Compensation Appeals Board held that Mrs. Mota’s services were not subject to utilization review, even though they were never requested by a treating physician, because the services began before Labor Code section 4610 became effective, and because defendant was aware the services were being provided.

With regard to the issue of Mrs. Mota’s work status, the Workers’ Compensation Appeals Board held that applicant’s wife is not defendant’s employee, so the question of federal law does not arise.

The basic result of this case has two equally alarming effects: (1) the defendant is no longer allowed to control treatment, and must allow applicant’s wife to provide in-home care rather than providing a professional of its choice; and (2) the defendant is forced to provide payment to a person who has no right to work in the United States in violation of federal law. In fact, it is possible that the WCAB would force an employer to pay an illegal immigrant to provide in-home services to an employee who was also discovered to be an illegal immigrant.

The WCAB relies on the reasoning that “[i]f applicant had chosen to move to Mexico after his injury for medical treatment and rehabilitation, and if Mrs. Mota had provided exactly the same services, defendant would be liable for those services, and there would be no issue as to her employment status or her right to reimbursement.”  But Mrs. Mota has the right to work in Mexico, and not in the United States.

Perhaps the defendant might consider retaining a lawyer for a federal removal action to see if the federal law is really as undisturbed as the WCAB suggests.  After all, if the federal government can so casually disrupt settlement proceedings with its Medicare Set-aside Analysis requirements, invalidating a WCAB decision should be no problem.  In any case, applicant’s attorneys may have stumbled upon a way to gather income for their clients, regardless of work status, by having non-work eligible spouses provide “home care.”

Categories: Liens, Medical Treatment

On PQMEs and Work Restrictions

February 21, 2012 Leave a comment

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.

Categories: Uncategorized