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Keyword: ‘msa’

Court of Appeal Rules No 15% Bump When No Work Missed

August 30, 2012 2 comments

If you listen closely, dear readers, you will hear the furious typing and exciting writings of the workers’ compensation community, with all the big experts giving their interpretations and predictions for the constantly changing “reforms” of Senate Bill 863.  Even as Senator Kevin de León faced the wrath of hired protestors, speculation continued for what the reforms will be when (and if) the bill is signed by Governor Brown.

At the risk of swimming against the stream, allow your humble blogger to report to you another development in the law of workers’ compensation, this one with more binding authority than the wishful thinking of the workers’ compensation community.

We’ve had a few conflicting panel opinions on the issue of Labor Code section 4658(d), among them Hisato Tsuchiya v. County of L.A., which held that the 15% increase/decrease does not apply in cases where the injured worker missed no time; and Wendy Audiss v. City of Rohnert Park, which held that it does.

Now, the Court of Appeal has pronounced judgment, ruling that in cases where the injured worker has not missed any time from work, section 4658d does not apply.  The case is City of Sebastopol v. Workers’ Compensation Appeals Board.  Defendant-employer made an offer of regular work less than sixty days after applicant William Braga was declared permanent and stationary, even though Braga had lost no time from work and was happily at his task even after filing his claim for hearing loss.

Naturally, the City took a 15% decrease in permanent disability payments, and, surprisingly, applicant was perfectly agreeable to this – all parties just wanted their compromise and release agreement approved.  But the workers’ compensation Judge rejected the settlement agreement, reasoning that the 15% decrease does not apply in cases where the applicant missed no time from work.

Unfortunately, the Court of Appeal has agreed.

Now, bear in mind, dear readers, that a good portion of the workers’ compensation community finds this a good decision, but your humble blogger does not count himself among them.  Through diligent adjusting efforts, employers who found workers with no missed time following an injury enjoyed a benefit in the form of a 15% decrease in permanent disability indemnity.  And this made sense – if the injury is so minor that a worker did not miss any time, then the PD really should be decreased.

Now, however, that benefit is no longer available to the employers and insurers, and the best adjusters have one less way to distinguish themselves.

Categories: Uncategorized

Applicant Alleges Her Attorney Coerced Her to Settle

August 17, 2012 1 comment

Sit back, dear reader, and listen to the story of the case of Sandra Malvesti v. Round Valley Unified School District.  The issues of the case in chief aren’t nearly as important as what followed, when applicant’s counsel hungrily pursued the attorney’s fee.

The case had previously settled by way of stipulation, with future medical treatment included, but when applicant claimed a (quelle surprise!) new and further disability, the case eventually resolved by way of compromise and release.  Applicant’s lawyer requested a fee of 12% of the new settlement amount ($14,202.00).

Stick with me folks, here’s where it gets interesting.

The workers’ compensation Judge initially refused to approve the compromise and release, reducing applicant’s attorney’s fee because the future medical treatment was already acquired with the prior stipulations, for which applicant’s counsel already received a fee.  The WCJ was also concerned with some of the terms of the method of payment, including an annuity company.

The applicant’s attorney then produced a letter signed by applicant, begging the WCJ to approve the settlement so that applicant would not lose her house – she really needed the money!  In the letter, applicant made clear that she had no objection to the attorney fee, and just wanted the matter settled and paid.

The WCJ approved the settlement with the reduced fee, and applicant’s counsel promptly petitioned the Workers’ Compensation Appeals Board for reconsideration.  In reviewing the case, and please keep the above video in mind, the WCAB noted a letter from applicant (and not applicant’s attorney) which “accuses [applicant’s attorney] of engaging in what may be unprofessional conduct to obtain her consent to his fee request.  In substance, applicant is alleging that [her attorney] used both his claimed financial situation and that of applicant to coerce her to consent to his fee request as a condition of getting timely action on the [C&R].”

And what is the reference to applicant’s counsel’s own financial situation?  The applicant wrote that her attorney “personally asked me to sign an additional letter during this phone call stating he had not paid his house payment for 5 months, could not pay his staff and could not afford groceries for his family, … I was afraid if I did not sign the letter I would once again be put on the ‘back burner’ and my case would still be ongoing.”  (Pack your bags, boys!  We’re going on a guilt trip!)

The WCAB ordered the matter returned to the WCJ to determine if the applicant’s story holds water.  If it does, then questions of the ethical practice of law need to be explored.  If, however, it doesn’t, then applicant’s attorney is to receive the full fee, including a portion of the Medicare Set Aside, as held in the case of Robert Viale v. Lockheed Martin Corporation.  (It looks like applicants’ attorneys can expect a slice of the MSA pie as well).

As always, WCDefenseCA has declined to name names, but if your humble blogger was in this attorney’s shoes, he would drop this issue immediately and forfeit the seven thousand.  Every lawyer wants to be known by all, but not for this, one way or another.

Categories: Uncategorized

More Inconsistency from WCAB on Applicants’ Attorney Fees

July 20, 2012 1 comment

Are applicants’ attorneys entitled to an attorney fee from the money used to set up and fund a workers’ compensation Medicare Set-Aside account?  After all, the applicant’s lawyer has to do some work to get that amount and to get applicant’s future medical needs taken care of, doesn’t he?  Previously, the Workers’ Compensation Appeals Board had held, in a panel decision (Pratt v. Wells Fargo), that the attorney’s fee comes out of everything other than the WCMSA – so all those future medical treatment dollars put no pennies in the pockets of hungry applicant’s lawyers.

Recently, however, there has been a contrary panel decision (Robert Viale v. Lockheed Martin Corporation), in which the same WCAB chided the workers’ compensation Judge for giving “undue weight to a non-binding panel decision” by relying on Pratt.  The WCAB further noted that “notwithstanding the fact that someone at LEXIS deemed the Pratt decision ‘noteworthy,’ prior panel decisions are not binding on WCJs or subsequent Appeals Board panels.”

But… isn’t the Viale opinion just another “non-binding panel decision,” with or without a LEXIS “noteworthy” stamp, which some other WCJ will be chided for giving “undue weight”?

Applicant’s counsel won an additional $50,000 in attorney’s fees through his efforts.  Now, bear in mind, at the moment, your humble blogger has no dog in this fight.  When applicant’s lawyers and applicants are at each other throats, the defense doesn’t really suffer all too much.

However, as noted in this article, there are plenty of times when the defense is suddenly on the hook for an applicant’s attorney’s fees on top of his or her other recovery.  This means that cases such as Viale, and unlike Pratt, could be used to inflate the liability of the defendant to include an attorney fee on the WCMSA.

Let’s hope that future panel decisions lean in favor of Pratt and some binding authority on this topic comes out soon before an employer gets stuck paying double the attorney fee.

Categories: Uncategorized

Firefighter, Fighter, Fraudster

April 17, 2012 2 comments

My dear readers,

Some of you may not realize how absolutely dedicated your humble blogger is to your continued entertainment and, to a possibly equal extent, to keeping you up to date on all the happenings of the workers’ compensation world.  Not only do I suffer the verbal abuse of applicants, their attorneys, lien claimants, and judges in defending the endless onslaught of claims… I am also willing to suffer the physical abuse that will no doubt follow this post.

A Los Angeles City firefighter was arrested recently for allegedly filing false workers’ compensation insurance claims.  After claiming he was unable to do his job as a firefighter, he continued to compete in various mixed martial arts events, winning a good number of them.  In fact, on March 7, he tweeted “[j]ust finished running 2.5 miles in 16:44 min.”

This is one of the more blatant examples of fraud in our system, but such stories are both good and bad for the industry.  On the bright side, the story highlights that fraud does happen; that it happens amongst some of the more highly regarded and respected members of the community (including police and firefighters); and that some people are just plain cheaters.

But such stories also have a negative effect.  They take away from the fact that most fraud isn’t this high-profile or blatant.  Most fraud includes subtle theft – claiming an injury prior to retirement; sitting at home instead of working while collecting disability checks; claiming a recovery from an injury to return to work, only to cause oneself greater impairment.

In this case, the fraudster (who is probably on his way over here to beat me up right now) screamed his deceit from the mountaintops – most of the parasites unlawfully draining the resources of California’s employers, insurers, and government entities are not so easily caught, nor their apprehension so widely broadcast.

Categories: Fraud, News

Paying for Surgery Twice – Problems with Medicare Set-aside Agreements

What happens when Medicare Set-aside Agreement treatment occurs before the approval of a Compromise and Release?  That is what appears to have happened in the case of Carolyn Christian v. TJ Maxx, as covered excellently by Jennifer C. Jordan, Esq.

Medicare Set-aside Agreements are a paralyzing element in California workers’ compensation.  Applicants’ attorneys and defense lawyers must send away for an agreement as to the future medical treatment of an applicant prior to settling, and wait for various amounts of time before approval by the federal government.  Perhaps because workers’ compensation benefits are so often used as a supplement to retirement income at the end of a workers’ career, MSA problems are close to the top of the list of problems with the system.  WCDefenseCA has had occasion to cover this topic a time or two before.

In Christian, applicant entered into a compromise and release agreement with defendant which included an MSA.  One of the items listed on the MSA, which defendant was including in the compromise and release amount, was knee replacement surgery.  Well, after starting the MSA process and before getting approval of the compromise and release agreement, applicant had the procedure performed, and was looking forward to receiving the same benefit twice – both the treatment and the cost of the treatment.

The defense had other ideas about how this works.  Seeking to have the C&R set aside as either the result of a mutual mistake (at best), or the product of fraud (at worst), the defense met with resistance from the workers’ compensation Judge and the C&R was not disturbed.

The WCJ reasoned that applicant might need a second knee replacement surgery in the future, but the defendant appealed, and the Workers’ Compensation Appeals Board ordered additional hearings on the matter.

Perhaps we should begin including terms in our compromise and release agreements to the effect that the amount due after approval shall be reduced by the amount of MSA contemplated treatment received before the date of approval?

Categories: Medicare