Paying For The UNREASONABLE Journey

by Dave Jones-Landy, Esq. (September 12, 2012)

I recently came up against a novel issue of handling travel expenses for transporting a southern California applicant to be deposed in San Francisco. For whatever reason, applicant, who lives and works in Southern California, selected counsel located in San Francisco. Accordingly, her claim was venued at the San Francisco WCAB and had been proceeding in that venue for around eight months when the file came to B&B.

In setting applicant’s deposition, our office was of course asked to arrange for the applicant’s transportation to her San Francisco attorney’s office for the proceeding. This raised an issue for my client: why we were on the hook for transportation costs from Southern California to Northern California when there are plenty of workers’ comp attorneys in Southern California who could represent applicant?

While my gut told me we were responsible for covering transportation costs for the deposition, I could not readily recite the applicable code and/or regulatory sections that applied, so I did some research. What I found was as follows:

TO TERMINATE OR PAY TD...THAT is the Question!

by Michael D. Patrick, Esq. (August 1, 2012)

A Workers' Compensation case gets filed.  The case is accepted and treatment ensues. The Injured Worker goes back to work modified duty for six months and then gets fired for cause (insubordination and incompetence).  Applicant later alleges entitlement to 2 years of retroactive total temporary disability indemnity worth $88,000 including the lien of Employment Development Department.

What Result?

Trial and victory for our client!

The Court's attention was drawn to the following cases:

(1) Modified work provided until termination for cause (insubordination) relieving defendant of later Temporary Disability obligation (Drews 69 CCC 799).
(2) Terminated employee.  No Temporary Disability due if fired for unrelated reason.  (Fernandez** 30 CWCR p.224 citing Hardware Mutual (Hargrove) 32 CCC 291).

The MPN battle continues: Life after Valdez

by Timothy W. Rose (July 11, 2012)
with special thanks to Michael D. Peabody, Esq.

          In an attempt to bring some finality to the issues presented in the Valdez decision (at least for the time being), the California Court of Appeal recently addressed the admissibility of non-MPN reports.  In their May 29, 2012 decision (Elayne Valdez v. WCAB and Warehouse Demo Services, 2012 Cal. App. Unpub. LEXIS 4023), the Court of Appeal reversed a WCAB holding that precludes the use of non-MPN treating physician reports.  They concluded that "If the Legislature intended to exclude all non-MPN medical reports, the Legislature could have said so; it did not."  In reaching their decision, the court partially dissected Labor Code § 4616 to address what they believe is the true intent behind establishment of MPN’s.  In particular, they focused attention on Labor Code § 4616.6, which discusses the limitation of additional examinations beyond that which is found in Labor Code § 4616.4.  § 4616.4 describes in detail the process of obtaining independent medical examinations after the applicant has sought out second and third opinion examinations upon disagreement with treatment recommendations or medical determinations of the primary treating physician.

Headache Highway (aka Uncle Sam and CMS)

by Michael Peabody (May 17, 2012)

When a workers’ compensation settlement claim includes provision for “future medical care,” the Federal government does not want to be held responsible for paying bills for medical expenses that arise because the person was hurt at work.

In fact, 42 U.S.C. §1395y(b)(2) and §1862(b)(2)(A)(ii), also known as the Medicare Secondary Payer Act, specifically state that Medicare is precluded from paying for a beneficiary's medical expenses when payment “has been made or can reasonably be expected to be made under a workers' compensation plan, an automobile or liability insurance policy or plan (including a self-insured plan), or under no-fault insurance.”

Subpoena the Stars: The Tricks of the Copy Service Industry

by Tim Rose (May 17, 2012)
I was recently finalizing some miscellaneous tasks before a recent trip out of State to visit some clients. One of the last pieces of mail I pulled from my in-box was a stack of six subpoenas from Aquarius Duplication* seeking records from locations that I had subpoenaed just a few months earlier. My prior subpoenas had been served on opposing counsel, with a card that gave him the option to request copies of all records at our expense.  It was never utilized.  The attorney had not contacted us regarding service of these records.  The applicant had not sought treatment from any of the six locations since our subpoena. And, to top it all off, the subpoenas were not timely served and had been served on a different attorney in a different B&B office who had no relation to the case at all.  Slightly irritated, I placed the stack in my “to do” pile and headed to the airport.  It was my intent to file an objection and Motion to Quash the subpoenas.

Five Things Employers Should Do When an Employee Files a Workers’ Compensation Claim

by Michael Peabody (April 18, 2012)

When an employee gets hurt at work, or at least claims that they did, it can be a very stressful time for employers. Sometimes the injury is obvious, the employee is not exaggerating, and the employee simply wants to go back to work as soon as possible. Other times there are conflicting stories about whether an injury actually occurred or whether the injury is as severe as claimed.

In addition to following the applicable reporting requirements, there are several things employers can do to help develop a stronger defense.

B&B’s Defense Deposition Strategies Upheld

by Tahmeena Ahmed (March 29, 2012)

Partner Tema Levine of our Tarzana office had a recent case designated as a Significant Panel Decision!!

A 56 year-old store manager was terminated for allowing an under age employee to drive a forklift.  Post termination, the manager filed 3 claims.  On each Application, applicant's attorney failed to disclose he had represented this man on 3 earlier claims.  To be exact, applicant had 7 prior claims resulting in substantial settlements, including compensation for the same parts of the body he was now alleging against our employer.  In addition, applicant filed a wrongful termination, wage and hour discrimination, and 132a actions.

Given the significant prior litigation history, B&B attempted to take applicant's deposition via videotape.  Applicant refused to proceed with the deposition unless the video camera was turned off.  Despite a properly noticed deposition, applicant and his attorney walked out of the deposition claiming defendant required "good cause" to videotape a deposition.  

Ms. Levine filed a motion to compel.


by Alec Bradford (March 1, 2012)

Liens are a huge problem in California. Division of Workers' Compensation Adminstrative Director Rosa Moran has recently stated that lien issues threaten the entire workers' compensation system (1). Much of the focus is directed towards various areas of medical liens.

Interpreting liens are often overlooked as the actual dollar amount requested is typically much lower than medical liens. However, this doesn't mean that you should be paying interpreting liens that aren't legally owed simply to close a file.

You might be surprised to find out that much of the time you are probably paying interpreting fees that you don't have to. In fact, on March 17, 2011 The Workers' Compensation Appeals Board issued an en banc decision detailing exactly what is required of interpreters in order to prove that they are entitled to their fees in the case of Jose Guitron v. Santa Fe Extruders 76 Cal. Comp. Cases 228. This is the case that interpreters don't want you to know about, because it is extremely difficult for interpreters to meet the legal requirements to obtain their fees.

Congratulations Sandy Rosenfeld

by Mark Fletcher, Esq. (Feb. 7, 2012)

Managing Partner, Mark Fletcher announced recently that Attorney Sandra Rosenfeld of our Ventura office has accepted a position at the Los Angeles W.C.A.B. as an Administrative Law Judge in the Department of Industrial Relations, Workers' Compensation Appeals Board.  "We are very sorry to see her go, but look forward to seeing her on the bench", said Mr. Fletcher.

Ms. Rosenfeld earned her Bachelor of Arts degree from UC Berkeley in 1997, followed immediately by her Juris Doctorate from Loyola Law School in 2000.

Ms. Rosenfeld initially began practicing bankruptcy law, but was led into the world of workers' compensation through her husband who was an applicant's attorney at the time.  She began her practice in workers' compensation around 2001 and continued as a defense attorney when she joined the Law Offices of Bradford & Barthel, LLP in 2011.

All of us at B&B will miss Sandy's poise and even keeled temperament.  We sincerely wish her a smooth transition and know that she will undoubtedly be one of the more competent judges the district has to offer.

The Price of Pain Management- The True Cost of Compound Medications

by Timothy W. Rose (2/2/2012)

In the world of Workers’ Compensation, medical treatment is provided with traditional methods as well as current medicine trends or “fads”.  “Reasonable and Necessary” medical treatment afforded under the Labor Code can steer off course when popular/trendy medical treatment and procedures replace time-tested and proven forms of medical care.  One such unproven trend is that of compound medications.  Compound medications do have their advantages and can be considered reasonable medical care.  However, they have evolved from a useful medication alternative into multiple problems that require expensive and needless litigation.  Why?  The answer is simple: money.