NO CATASTROPHIC INJURY??? NO PSYCHIATRIC PD

by Matthew G. Markham (December 22, 2014)


For injuries on and after January 1, 2013, there shall be no increase in impairment ratings for the compensable consequence of a physical injury resulting in psyche, sleep, or sexual dysfunction or any combination thereof, an exception thereto being catastrophic injury which includes but is not limited to loss of a limb, paralysis, severe burn, or severe head injury.

Clearly the legislature, in enacting SB 863, continues the march to restrict psychiatric claims. This should reduce what now appears to be a routine of some physicians who report compensable consequence psychiatric injury, but the Labor Code and Regulations are silent as to what constitutes catastrophic injury and, as we all know, this breeds mischief.

Attacking Apportionment: Causation to Injury vs Causation to Impairment

by James J. Lee (December 8, 2014)

Workers' compensation law brings together the fields of law, insurance, medicine, and accounting, to name the more obvious ones. Often the law requires the other fields to succumb for its purposes, even when those fields have no interest in doing so. Apportionment is such an area.

Apportionment seeks to divide liability in an equitable fashion. Simply put, we need apportionment so that we know who is responsible for what.

Medicine, however, is disinterested in knowing what caused the controversy. Rather, physicians focus is on fixing the medical malady. So when a patient walks in with a traumatic brain injury, the first goal is to treat him or her. Only later, if there is time, will a physician concede who is responsible.

Striking The Expedited WCJ

by Sean W. Morrisroe (December 2, 2014)

The judge assigned for an expedited hearing may very well be the judge for all remaining hearings and trials on your case. So, if you do not want that judge, strike quickly!

Occasionally, the first hearing in a matter is an expedited hearing, set early in a case, over temporary disability or other priority issues. It often occurs even be before defense counsel appears in the case. For instance, the applicant’s attorney quickly files a Declaration of Readiness over alleged wrongful failure to pay temporary disability. An expedited hearing, the first hearing in the case, is then set within thirty (30) days with a designated judge per LC § 5502(b). Absent a quick “Petition for Automatic Reassignment” per CCR §10453, the assigned judge could very well be the judge for all future hearings in the case. Bottom line: if you do not want that judge on the case, you must quickly strike that judge.

YOU WANT ME TO SEND THE CHECK WHERE?

by Nanci C. Freeman (November 4, 2014)


Every now and then a circumstance occurs that shocks the conscience and sensibilities of even the most sophisticated and savvy insured. I could not avoid noticing the utter dismay of an employer when I advised them that yes, the applicant may really be entitled to benefits despite his arrest for attempted murder.

INCARCERATION IN ITSELF DOES NOT CONSTITUTE GOOD CAUSE TO FORGO THE PAYMENT OF BENEFITS.

Along with events like pregnancy and being drafted into the military, incarceration falls into a category referred to as “intervening events.” An arrest and/or incarceration does not in and of itself justify terminating liability to pay temporary disability.

What Scandinavian Drug Traffickers Have to Do with Workers’ Comp

by Reuthana Tap (November 4, 2014)



It has likely happened to you.  You are at a deposition and sitting across from you is applicant and her attorney.  After finishing the admonitions, you ask applicant to produce documentation confirming her identity.  With fear in her eyes and sweat beading across her forehead, she nervously turns to her attorney.  Suddenly, like a bat out of hell, the applicant’s attorney rises from his chair, vehemently objects and recites with pride and verbatim the Fifth Amendment of the Constitution.  Thereafter, he advises applicant against providing any identification, thus preventing you from verifying applicant actually is who she purports to be.

Herein lies the problem:  Who the applicant purports to be may also be a Scandinavian Drug Trafficker listed as a Specially Designated National (“SDN”) with the Office of Foreign Asset Control (“OFAC.”) [1]



On The Lien Front

by David F. Mahjoubi (September 26, 2014)


I recently had two interesting situations come up: the first I found one to be a little disturbing…the other provided a way to circumvent a WCJ who refuses to issue a “Notice of Intent to Dismiss” without first contacting the lien claimant to confirm whether they are still pursuing their balance. 

WATCH OUT FOR LIENS PREVIOUSLY SETTLED OR DISMISSED FOR FAILURE TO PAY THE ACTIVATION FEE.

I recently appeared at a lien conference. As I am collecting bills and demands from the various representatives, one representative handed me a bill for a provider who seemingly was not of record. She asked if I could resolve them “informally”. Interesting…

Interpreting Liens

by Augustine K. Oh (September 15, 2014)

Whether you’re dealing with Igrod the Dependent Interpreter or with Ian from the Domestic Misinterpreting Institute, interpreting liens often cause headaches for claims examiners and defense attorneys alike. Hopefully, this BLOG will help you navigate through the muddy swamp of interpreting liens.

One of our newest Equity Partners, Alec Bradford, authored an in-depth analysis of the lien claimant’s burden of proof under Guitron v. Santa Fe Extruders (2011) 76 CCC 228. In case you missed it, you can read it here:  http://bradfordbarthel.blogspot.com/2012/03/effectively-defending-against.html.

So every time we receive an interpreting bill, two questions inevitably arise: (1) Should we pay? (2) If so, how much? These questions are answered below, in addition to a recently recurring issue: Is the applicant or the defendant entitled to select the interpreter?

I WANT MY MONEY BACK!

by Louis A. Larres (September 13, 2014)


Don't you just love it when, after waiting many months to get in to see a QME or AME (and after a review of all of the medical records and a thorough physical exam) the doctor states, "Oh, this person was P&S 8 months ago," creating a significant TTD overpayment.  The first question you likely find yourself asking is "Can I assert credit against PD?"  Well, like most questions in workers' compensation, the answer is "it depends."

Whether an employer is to allowed a credit for over-payment of benefits is typically decided on a case-by-case basis. Labor Code §4909 provides that payments received which were "not then due and payable . . . may be taken into account by the appeals board in fixing the amount of the compensation to be paid." 

PREDATOR OR PREY - The Employer in California Workers’ Compensation Subrogation

by Kermit N. Sprang (September 1, 2014)


California subrogation law can be a rude surprise for those not familiar with its procedures.  Out here, it’s “the law of the jungle” –you get only what you fight for.  An employer[1] who does not actively investigate and participate in an employee’s third party action can expect one of three results, all of them bad. 

First, the employer may not learn of the employee’s action at all.  Although the employee is required to notify the employer when he files his action, his failure to do so will not adequately protect the employer’s rights.  If the defendant is not aware of the employer’s subrogation claim when it settles with the employee, the employer is barred from suing the defendant.  The employer is relegated to an action against the employee, who is most likely judgment-proof.

Resources, Better Information Are Vital In War On Fraud

by John P. Kamin (August 22, 2014)


Workers' compensation professionals have repeatedly questioned why insurance fraud is not prosecuted more frequently, in light of all of the unsavory behavior observed on the front lines.

Throughout the years, I've heard everyone from WCAB commissioners to claims adjusters to self-insured employers ponder the seemingly small ratio of fraud cases that are filed by district attorneys.

For decades, a large part of that question was answered with a single word: resources. In short, prosecutors lacked the staff to spend the time on fraud cases emanating from a system that they were often unfamiliar with.

Many Lien Representatives Ignore Notice of Representation Law

by John P. Kamin (August 15, 2014)

Many lien claimants are able to ignore a provision of Senate Bill 863 requiring notices of representation, primarily because judges and attorneys are not requiring lien representatives to produce them. 

When lawmakers approved Senate Bill 863 in September 2012, they added a provision to Labor Code 4903.6 mandating that all lien claimants provide notices of representation to employers, employers' representatives, the applicant, and the applicant's representative. 
http://law.onecle.com/california/labor/4903.6.html

The statute requires lien claimants to provide the notices within five working days of acquiring or changing their lien representatives, and the notices must list the legal name, address, and telephone number of the representative. 

Delineating Dubon: Strategic Considerations and a Winning Game Plan

by Patrick C. Gorman (May 15, 2014)


I recently had the opportunity to review the Dubon ruling at length and wanted to outline some key points to consider when dealing with a challenge to a UR determination on the grounds the determination contains material procedural defects.

The Dubon case has resulted to dramatic changes in the litigation strategy of applicant attorney’s (an applicant’s attorney referred to Dubon as a “game changer”).  Dubon states that IMR solely resolves disputes over the “medical necessity” of treatment requests while the WCAB retains jurisdiction to determine whether or not the utilization review decision suffers from material procedural defects.

California Bill Would Make Employers Liable for Employment Practices of Subcontractors

by Michael Peabody (April 7, 2014)

The California legislature is considering a bill that could rewrite the relationship between employers and temporary staffing agencies. Assembly Bill 1897 (Hernandez, D-48) would make client employers that hire laborers from temporary agencies liable for the failure of those agencies to provide workers’ compensation insurance, violate wage and hour laws, or fail to withhold proper taxes.

According to the bill introduction language, "[AB 1897] would require a client employer, as defined, to share with a labor contractor all legal responsibility and liability for the payment of wages, the failure to report and pay all required employer contributions, worker contributions, and personal income tax withholdings, and the failure to obtain valid workers’ compensation coverage."

Supreme Court Note: Hobby Lobby and Conestoga Wood Companies Insurance Thought Leadership

by Michael Peabody (April 1, 2014)


On Tuesday, March 25, the U.S. Supreme Court heard oral arguments in two highly anticipated cases involving the Affordable Care Act (ACA) and competing claims of religious freedom and the access to contraception.

The ACA (also known as Obamacare) requires employers that provide health insurance to employees to cover several types of contraception. Two for-profit employers, Hobby Lobby and Conestoga Wood Specialties, object to four of the twenty forms of required contraception which company owners believe cause abortions.

The penalty for failure to provide coverage for these additional forms of contraception could cost Hobby Lobby upwards of $475 million a year for its 13,000 employees, or almost $37,000 a year in fines per employee.

Strike While the Panel is Hot - The Timeline for PQME Strikes Under SB 863

by Michael Peabody (March 20, 2014)


How many days do parties have to strike a doctor’s name after the day a QME panel is assigned by the Administrative Director?  The answer is fifteen days according to the WCAB in the case of Razo v. Las Posas Country Club (ADJ8381652) (not yet published) dated February 7, 2014.

On January 1, 2013, California Senate Bill 863 went into effect, modifying the tight timelines for striking a name from the panel of QMEs. Labor Code section 4062.2(c) was amended to state:

Within 10 days of assignment of the panel by the administrative director, each party may strike one name from the panel. The remaining qualified medical evaluator shall serve as the medical evaluator. If a party fails to exercise the right to strike a name from the panel within 10 days of assignment of the panel by the administrative director, the other party may select any physician who remains on the panel to serve as the medical evaluator.  The administrative director may prescribe the form, the manner, or both, by which the parties shall conduct the selection process.” (Emphasis added).