Archive

Archive for April, 2012

Received Bills from Implantium? Fraud Charges Pending…

Have you seen bills for Implantium?  Well, if you have, you may want to hold off before you pay them.  The Santa Clara County District Attorney’s Office has charged Trudy Maurer (CEO) and Tigran Shahsuvarya (Medical Director) with nine felony counts of fraud, the allegations being that the two inflated invoices and submitted them to various government employers in San Jose County.

Shrugging off the medical fee schedule, Implantium allegedly overbilled the government employers for devices implanted (or supposed to be implanted) into injured employees backs.

If your gamble-inclined blogger were inclined to gamble, he would guess that these were more of those spinal stimulators or neural stimulators that work so well during the “trial” phase and then stop working all together after being implanted, requiring additional surgery to remove them.

If these allegations are true, hopefully the District Attorney’s office will not hesitate to throw the proverbial book at the perpetrators.  These parasitic acts bankrupt the workers’ compensation system and hurt tax-payers, employers, and employees alike.

One can also hope that the DA’s office will not hesitate to pursue the same sort of transgressions when committed against private-sector employers and insurers.

As always, WCDefenseCA wishes the District Attorney’s office good hunting!

Categories: Fraud, Liens, News

Different Strokes for Different Folks

April 27, 2012 3 comments

In as much as you adore your humble blogger, one can only hope that you will forgive the pun in today’s blog post title.

Applicant suffered a stroke while working as a journeyman screen printer in the case of Francisco Amaya v. California Printed.  Mr. Amaya was given the job of printing thirty six flags and a deadline of 1:00p.m.  The trial evidence differed on whether he was assigned this task at 8:00 a.m., allowing for five hours, or at 9:30 a.m., allowing for three and a half hours.  In any case, because of the “stressful working condition” of having to make so many flags to print in so little time, applicant suffered a stroke.  Also contributing to the stroke was the fact that he had stepped on a spray can, causing him to fall to the ground.  Sounds pretty bad, no?

Well, some facts might clear this up.  Applicant suffered his stroke a little before 11:00 a.m., and at that time had completed six of his assigned thirty six flags.  So, that means that he had between 1.5 and three hours to print the six flags, leaving another 30 to be completed by 1:00 in the afternoon.  How many flags could YOU print in that short a time period? 10? 20?  Well, if you’re one of applicant’s co-workers, it would probably take you thirty minutes, which is what it took another employee who was assigned the remainder of Mr. Amaya’s workload.  Not so much of a “high pressure” situation any more, is it?

Also, what may have contributed to the stroke was the non-industrial and untreated “hypertension, hypercholesterolemia, and diabetes” which applicant had at the time of the stroke.

So, here is what the panel QME did with this case:

1)      He ordered a CT scan of applicant’s head, because head trauma “could have been a precipitating or enhancing factor.”  Without having seen the CT scan results, eh concluded that applicant’s stroke was caused by 25% industrial factors and 75% non-industrial factors.  When he later saw that the CT scan showed no head trauma, he declined to change his opinion.

2)      He also found that his stroke could have been a reaction to stepping on a spray can, but if he did not step on the spray can, the PQME would not change his opinion.

Here is how your skeptical blogger reads these facts: “well, I’m not going to let these facts let this guy walk away from this thing empty-handed.”

The defense argued that the PQME’s opinions do not constitute substantial medical evidence – this lunacy of a medical opinion does not justify its findings and seems unmoved by any shifting facts.  So, what do you think the Workers’ Compensation Judge did with this?

The WCJ threw it out of her courtroom!  She found that the PQME “did not explain the bases for his opinion that Applicant’s work activities … constituted 20-25% of the causation of the stroke, irrespective of the pace at which Mr. Amaya was required to work.”  The injury was ruled non-compensable, and applicant’s request to take a second bite at the apple further develop the record was denied as the PQME “has been given ample opportunity, through the deposition process, to provide support for his opinions… [he] has not provided the necessary support, and … further discovery such as another deposition is not likely to yield a properly supported opinion.”

The Workers’ Compensation Appeals Board denied applicant’s petition for reconsideration and incorporated the WCJ’s report.

Curious about this Northern California PQME who hands out causation like it’s candy?  Please shoot me an e-mail for the panel opinion: gregory@grinberglawoffice.com

Categories: Apportionment, QMEs, WCJs

Lien “Expert” Charged with 16 Counts of Perjury

The reach and influence of your humble (and arguably delusional) blogger spans far and wide.  Reliable sources have pointed out a fraud story that is simply ridiculous.  On January 5, 2012 the San Diego District Attorney’s Office filed a felony complaint, alleging sixteen counts of perjury against Joseph Arthur Wolf.  Wolf, who on at least one occasion testified as an “expert witness” in a lien recovery matter for workers’ compensation cases, made claims that he had received degrees from universities (which he apparently had not), and that he had been mayor of a town in New Jersey (which he apparently had not either).

Among his other claimed titles were: Police Commissioner (of two different towns in two different states), President of the Board of Health, and Assemblyman.  He also claimed to have taught medical doctors at Chicago University Pritzger School of Medicine.

Also of interest is Count 2: “[d]efendant stated he had no financial interest in the outcome of the hearing, but was being paid by the surgery center.”

According to the complaint, Wolf was testifying for Wolf & Associates when these 16 acts of perjury occurred.  But the Wolf & Associates website makes no mention of Joseph Arthur Wolf, but only of Leslie Wolf and her “20+ years experience in the medical and workers [sic] compensation fields.”

Efforts to retrieve cached versions of the Wolf & Associates website, ones that would include some mention of Joseph Arthur Wolf, were unsuccessful.  In any case, it appears that Wolf & Associates provided lien recovery services to various lien claimants, and, on at least one occasion, offered Joseph Arthur Wolf as an expert witness to carry the requisite burden of proof as to necessity and/or reasonableness of charges.

The defense attorney in that case must have been as diligent as they come – he rooted out the patent fraud and perjury committed by this so-called “expert” and the District Attorney is now involved.  How many other lien-recovery outfits try these sort of shenanigans?  How many times have the succeeded in influencing workers’ compensation Judges to award undeserved funds to lien claimants?

As a member of the defense community, I would also like an investigation into Wolf & Associates – did they know about his background? How often have they retained Mr. Wolf as an expert witness?  Are the facts there to support a charge of conspiracy to commit perjury?  California in general and Southern California in particular are plagued by the devastating effect of liens – when applicants are wondering where all the money is going, they can find the lien claimants siphoning off the defendant’s reserves and litigation budget.  This is an example of the problem.

WCDefenseCA sends a very sincere “good hunting” to the San Diego District Attorney’s Office.

Categories: Fraud, News

An Evaluator Turning Down the Almaraz/Guzman Dance

April 25, 2012 1 comment

This blog has covered some tactics that good defense lawyers can use to push back against the impairment inflation of Almaraz/Guzman. Sometimes, we even see A/G used to actually cut down the total impairment.  In the recent case of Malhotra v. State of California, Department of Developmental Services, the panel Qualified Medical Evaluator was not inclined to jump on the A/G bandwagon… and the Workers’ Compensation Judge would have none of it.

Applicant sustained an injury consisting of a laceration to the small finger of his hand, resulting in decreased range of motion and loss of sensation.  The panel QME found this to reflect a 2% whole person impairment.   The applicant’s attorney tried, unsuccessfully, to play the A/G tune for the PQME and get him to rate grip loss with or instead of the decreased ROM and loss of sensation.

But he wouldn’t budge – the PQME in this case manifested some strange and completely irrationally dedication to the truth and the honest evaluation of applicants.  The AMA Guides clearly state that, in the presence of reduced range of motion, grip loss cannot be rated.

In crafting the instructions to the DEU rater, the WCJ noted that the PQME “does not appear to be aware of the latitude he has,” and proceeded to instruct the DEU to rate grip loss.  The result, of course, was a 20% permanent disability rating.  On cross-examination, the DEU rater testified that he would not have rated grip loss, but would have instead rated applicant with 1% permanent disability, but the Judge’s instructions are the Judge’s instructions.

After the WCJ awarded applicant 20% permanent disability, defendant promptly and zealously petitioned the Workers’ Compensation Appeals Board for reconsideration.  On what possible grounds could an objection to the course of events be made?  Well, in the en banc case of Blackledge v. Bank of America (2010), the WCAB held that the physicians assess the injured employee’s whole person impairment, and the WCJ frames rating instructions.

According to the WCAB, the WCJ, in this case, was “again usurping the role of the physician in determining that applicant’s impairment should be based upon grip loss, rather than the factors he identified that comport with the AMA Guides.”   (To my dear WCJs out there, please recall, your humble blogger but reports these opinions, he does not draft them.  If he were free to draft binding opinions, there probably would be considerable cause to be very angry with what he had to say…)

The end result was a victory for the defense and for anyone interested in having a workers’ compensation system build on consistency and predictability – a scratch on your pinky does not render you only 4/5th of the worker you were.

Work is More Exciting in Australia

April 24, 2012 2 comments

Normally, this fine and cutting-edge blog confines itself to the goings-on and happenings of California workers’ compensation, in particular the stories and cases that make the defense community better equipped to deal with the wolves growling at our proverbial doors.  But not today.  Today your humble blogger could not resist the temptation to post on a story out of Australia that made it into the WCDefenseCA inbox thanks to the thoughtfulness of a few very kind readers.

A woman in Australia has successfully argued that her injury sustained while engaged in behavior that cannot be described in any detail on this family-friendly blog should be compensable.  Her employer sent her on a business trip to another town.  While there, she contacted a “friend” of hers and the two returned to her hotel room.  While “going hard,” in the words of the eloquent “friend,” a light fixture fell off the wall and hit her, resulting in “facial and psychological injuries.”

In the course of employment, indeed.

The Australian Federal Court held that she was entitled to compensation, just like she would have been had she been playing cards in the same hotel room.  The Federal Court is not the highest court of the land, so common sense may still prevail.

WCDefenseCA is not aware if the woman has pursued any action against the hotel or the maker of the light fixture, but in terms of pure fairness, they seem like more culpable and punishable candidates than the employer.  But such is the cruel fate of employers in Australia – where all is fair in love and work[ers compensation].  G’day!

Categories: News

Applicant’s Attorney Sanctioned $1,000 for False Statements

April 23, 2012 2 comments

Sanctions.  Sanctions, sanctions, sanctions.  They make the news when they happen, and the defense community involuntarily pumps a fist in support when the Workers’ Compensation Appeals Board imposes sanctions against lien claimants or applicants’ attorneys who play fast and loose with the truth.

Not too long ago, the WCAB imposed sanctions against a Valencia applicants’ lawyer for some less-than-honest statements pertaining to the timeliness of his filed petition.  In keeping with WCDefenseCA’s policy of not naming names, your humble blogger will decline to broadcast the perpetrator’s identity.  But if you e-mail me (Gregory@grinberglawoffice.com), I will send you the panel opinion.

Applicant’s attorney filed a petition for reconsideration on June 28, 2011 even though the underlying Joint Findings and Award was issued January 25, 2011.  To deal with the issue of timeliness (for a discussion of reconsideration and removal, please click here) applicant’s attorney alleged that he never received the F&A when it was served.  But this means that he had 20 days from the date of receipt to file a petition for reconsideration – and the question arose as to when he actually received the F&A.

In answering applicant’s petition for reconsideration of June 28, defense counsel raised the argument that the petition was not timely.  Furthermore, evidence was offered that applicant had the F&A in his hands at an Mandatory Settlement Conference on May 2, 2011.  Your humble blogger may be mathematically impaired, but with the use of his fingers and toes he discovered that June 28 is more than twenty days after May 2nd.

Well, the WCAB ordered an investigation on the trial level into this issue and the question of ex parte communication with a judge and making misleading statements to a judge.  The defense attorney appeared at the hearing to testify, but applicant’s attorney did not.  He later alleged that he calendared the hearing incorrectly (labeling the hearing as 1:00 instead of 8:30) and that the whole thing is moot anyways because “the Fifth amended [sic]” protects him from testifying against himself.

The WCAB was not impressed.

Sanctions of $1,000 were imposed on the applicant’s attorney for the misleading claims regarding when the attorney actually had the F&A.  Because no evidence was offered with respect to the issues of ex parte communication and false statements to a workers’ compensation Judge, sanctions were not imposed for those as well (the applicant’s attorney escaped an additional $2,000 in sanctions).  With respect to the claim of the “Fifth amended,” the WCAB noted that there were no criminal charges pending, so the defense did not apply.

Your curious blogger can’t help but wonder – has this attorney ever claimed to “not have received” some crucial document in the past?  This time he was caught red-handed because a competent defense attorney was able to catch him; perhaps there have been cases where no one remembered or was willing to testify?

So, what lessons can we learn from this story?  Well, for starters, keep a keen eye on your calendar and make sure you don’t miss the chance to testify in your own defense.  Keep an eye on the dates involved – the defense attorney in this case was able to keep the rules and deadlines from being bent out of shape through diligence and a properly drafted answer.

Categories: Fraud, Sanctions

When the PQME Goes Ex Parte, Who Gets to Order a New Panel?

WCDefenseCA does not often agree with panel opinions which hand victory to an applicant at a defendant’s expense.  Grudgingly, however, your humble blogger is forced to agree with the panel decision in Darlene Berke v. Bloomingdales.

We all remember how Alvarez threw the workers’ compensation world, applicants’ attorneys and defense lawyers alike, upside down, keeping us guessing as to how trivial or administrative a communication could incur the punishment of an ex-parte sanction.  Subsequent decisions have since clarified this issue, but only a little.

Well, the Berke case did not reach that point.  Instead, it addressed the issue of who holds the right to demand a new panel under Labor Code section 4062.3(f).  Basically, the panel Qualified Medical Evaluator called the defendant’s office demanding payment of a deposition fee two weeks in advance of the deposition, complaining of a history of insurance companies not paying him.

The defense moved to have the panel stricken for ex parte communication – the PQME contacted them in an inappropriate manner (not in writing and not copied to both sides).  The workers’ compensation Judge and the Workers’ Compensation Appeals Board both ruled that the party not involved in the ex parte communication holds the right to request a new panel.

This makes sense, after all – imagine if any time the applicant was unhappy with the panel QME, he need only pick up the phone and talk about the weather for 10 minutes before he could demand a new panel.

However, that being said, if your ever-ambitious and power-hungry blogger should ever get his hands on a black robe and gavel, he could be persuaded that defendant’s position is the correct one under a particular theory.

What is this brilliant theory that your sharp-witted blogger hatched to bring glory to the defense community?  I’m so glad you asked!

In Berke, it was the PQME who initiated the contact and engaged in ex parte communication with a party.  In such a case, it is fair to assume that the PQME, either through ignorance of the law or through reckless disregard of it, has a habit or propensity of engaging in such behavior.  Therefore, if the defense knows that the PQME has engaged in ex parte communication with it, the defense can safely assume that the PQME has or will engage in ex parte communication with the applicant’s attorney.  Sometimes, such communications may go unreported by the other side.

Also, ex parte communication should come with a sanction of some sort.  In cases such as these, the parties are blameless, but the PQME is in the wrong.  Perhaps a loss of fees and probationary QME status is an appropriate punishment.

 

Categories: QMEs, Tactics and Strategy