FUN WITH TEMPORARY DISABILITY

by Cynthia K. Karlen (December 22, 2016)

Despite much confusion, calculating temporary disability (TD) can be easy—and fun—if we keep a few simple rules in mind.

All employees receive the maximum Temporary Disability rate UNLESS there is documentation proving the employee is not a max earner. First, get a wage statement from the employer and determine if the applicant is a full time or part time employee. When was he/she hired? Are there any personnel issues?

Weight Given To Medical Reports At Trial

by Jorge I. Ibuado (November 23, 2016)

In the world of Workers’ Compensation, medical reporting is the staple upon which cases are lost or won. Other factors may affect the outcome (applicant’s and witnesses’ credibility and ability to testify well), but this article focuses on the medical reporting used in Trial and the factors the court uses to determine how much weight to lend each particular report.

For the purpose of this article, we will deal with three main medical reports including: Primary Treating Physician (PTP) reports, PQME reports, and AME reports.

“Private Eyes, They’re Watching You”: Surveillance in the 21st Century

by Michael P. Burns (November 18, 2016)

Reviewing surveillance film is often a flop, like the summer blockbuster that disappoints with a thin plot and weakly-developed characters. Watching thirty or forty minutes of an applicant ambling around a strip mall parking lot, watering her flowers, or driving around town, surveillance films often fail to live up to our expectations.

However, by ensuring that an investigative firm understands its broad powers, films can be transformed into powerful weapons in litigation.

Legislative Roundup: Approval of Lien Changes Headline Busy Legislative Session

by John P. Kamin (October 10, 2016)

Governor Jerry Brown enacted numerous changes that will help carriers fight fraudulent lien claimants when he closed out the 2016 legislative session by signing new lien procedures into law. The governor signed Senate Bill 1160 and Assembly Bill 1244 into law on September 30, the last possible day for him to do so. SB 1160 is a 20,300-word omnibus bill that ushers in a plethora of changes that will impact all participants in the workers’ compensation system, with the most newsworthy being that lien claimants who are facing fraud charges can be subjected to automatic stays.

Lawmakers doubled down on the action against fraudulent providers by passing AB 1244, which requires the DWC to suspend any providers who are convicted of fraud from practicing in the workers’ compensation system, and creates a rebuttable presumption that any lien filed by a convicted provider is not compensable if it is connected to the fraud.

New Legislation: SB 1160 (Mendoza) and AB 1244 (Gray and Daly): A Mixed Bag of Legislation: A Snapshot

by Alec Bradford and Sherri Dozier (October 3, 2016)

A lot of news has been made lately in the California Workers’ Compensation community regarding a multitude of arrests and prosecutions for various fraud issues. As a response, a few new bills have recently passed in an attempt to crack down on some of the more egregious abuses of the system. This BLOG will focus on some of the key provisions in these bills. Governor Brown recently signed both of these measures into law, and they will have far reaching implications into various aspects of the workers’ compensation system. Let’s address some of the more basic aspects of each bill:

SB 1160: UR Changes and Anti-Fraud Measures:

There is plenty in the new bill for defendants to like as well as some concerns that are raised. SB1160 focuses on UR as well as provides some anti-fraud measures for lien claims. The intent of the UR measures is to streamline the UR and treatment processes. Some of the streamlined processes or reinforcement of existing measures require:

RED FLAGS FOR “DOGS” - Adapted from the Presentation: Issues and Strategies in Large Loss Cases

by Gregory P. Fletcher (September 27, 2016)

There is a certain class of workers’ compensation cases which we all refer to as “dogs.” We know them when we see them. They tend to take on a life of their own. These files tend to have certain characteristics:

• Disproportionately bad outcomes when compared to other, similar injuries;
• Seemingly impossible to close;
• Excessive litigation over relatively trivial issues;
• Voluminous (often fills multiple banker’s boxes);
• Succession of different attorneys, both on the applicant and the defense side;
• Unrepresented injured worker;
• Symptoms are grossly out of proportion to the initial incident or accident;
• Multiple body parts alleged when accepted claim is only for a single body part;
• Psychosocial factors such as family issues, a history of substance abuse or drug seeking behavior, a “problem” employee, or mental health problems;
• “Red flag” doctors acting as primary treating physician or the Qualified Medical Examiner;
• “Red flag” attorneys who are excessive or abusive litigators.

Dealing with (and beating) CIGA as a co-defendant

by Daniel J. Ban (September 20, 2016)

So CIGA has joined you to a case (or filed a Petition for Reimbursement and/or Change of Administrator). CIGA is demanding reimbursement and insisting that your client take over the case, including administering benefits, discovery and medical treatment. What now? How do you assess the strength of CIGA's arguments?

What is CIGA?

First off, CIGA is a unique entity: it is a legally mandated association of insurers created by CA Ins. Code section 1063. It is not a simple "successor in interest" that takes over the entire liability of insolvent carriers. Rather, CIGA has the authority and obligation to pay "covered claims" for such insurers. CIGA's position --- which it litigates vigorously and with great success --- is that it has no obligation and no authority to pay any claim that is a not a "covered claim".

I Spy For Free Vol 2: Potential Pitfalls of Social Media Discovery

by Donald R. Barthel (September 9, 2016)

Welcome to the internet age. For those of you—like me—who are of a "certain" age, a life without computers has been replaced Google, email, texts, online shopping, instant messages, LinkedIn, Twitter, Skype, Facebook...and all those other means of communication that my 15 year old children try to explain to me. (I've got to admit: I've been on electronic overload ever since the introduction of the game "Pong" in 1972!) While sometimes overwhelming, this interconnectedness has many benefits not originally intended by its creators: discovery. There is a wealth of information available with just the click or two of a mouse. Some claimants’ social media profiles are surprisingly accessible to the general public. Information on these profiles can go back over many years. It is possible to find a claimant hiking, fishing, dancing—you name it—close in time to the injury. This information can prove to be very useful during a deposition or a cross-examination. And it's nearly all free.

I posted an article in 2010, "I Spy...For Free", in which I detailed many of the advantages of conducting at least some of your discovery efforts via internet searches. (See http://bradfordbarthel.blogspot.com/2010/01/i-spy.html#more) Six years later, all of those benefits remain and many more have come to the fore. In the meantime, however, some folks have pushed the envelope a little too far, resulting in statutes, case law and state bar ethical opinions aimed at curtailing the more outrageous abuses and violations of privacy.

The Alternative MPN Standard for Rural California

by Patrick C. Gorman (August 16, 2016)

For obvious reasons the overwhelming majority of industrial claims filed in California (and, ultimately, adjudicated by the Workers’ Compensation Appeals Board), are in the venue of California’s major population centers. There is a correlative between the number of jobs, and ultimately labor force participation, and the number of industrial injuries filed in any geographic region.

The vast majority of claims handled and ultimately litigated fall within the greater Southern California Region, San Francisco Bay area, Sacramento, Fresno/Bakersfield, and beautiful San Diego area.

SPECIAL PRESUMPTIONS IN WORKERS’ COMPENSATION

by Jeannene L. Lafarga (July 22, 2016)

Not all injured workers are treated equally. Certain employees who risk their lives and health for the public are entitled to presumptions of work-related injury with respect to enumerated medical conditions (Labor Code section 3212, et seq.).

Who qualifies?

Presumptions apply to most employees in active law enforcement and firefighting. Among them are police officers, sheriff, firefighters, CHP, District Attorney inspectors and investigators, peace officers and other law enforcement workers. However, if the employee’s principal duties are clerical or do not clearly fall within the scope of active law enforcement, the presumptions do not apply.

Oh, no! I made a mistake! Petitions to Set-Aside

by Randall P. Stoddard (June 21, 2016)

I recently attended the Workers’ Compensation Section 2016 Spring Conference at the State Bar of California. One speaker, the Honorable Judge Cliff Levy, presented “Oops: Mistakes, Errors, and Petitions to Set-Aside.” His insights are well worth sharing.

As careful as we are, some mistakes are bound to happen. The mistake may be clerical. Other times, it may be more egregious. In any case, it is good to know the proper procedure for correcting errors. It is important to understand how to properly petition to set aside an Award, Order, etc. and how to lay an evidentiary foundation supporting such a petition.

Kite Fighting

by Sean W. Morrisroe (June 7, 2016)

Kite fighting, practiced primarily in the East and Brazil, involves attempting to cut your opponent’s line, or ground their kite, to achieve victory and win their paper aircraft. A different kind of kite fighting is taking place in California workers’ compensation evaluations: doctor depositions and trials.

In the Kite case, EBMUB, Athens Administrators v. Kite (2013) 78 CCC 213 (writ denied), Richard Kite injured both hips, resulting in bilateral hip replacements. The panel QME found 20% WPI for each post-surgical hip. The QME discussed in detail the “synergistic effect” of one hip injury or the other, concluding the most accurate description of injury would result from simple addition, rather than combining the disability. The WCAB upheld the WCJ: the Court of Appeal denied defendants’ writ. Of course this departure from the Combined Values Chart cost defendants more PD. Understandably, applicant’s attorneys now frequently ask med-legal evaluators to apply Kite.

CALIFORNIA LAWMAKERS PROPOSE NEW UR CHANGES, INCREASED FINES FOR CARRIERS, AND SALARY CONTINUATION BENEFITS

by John P. Kamin (May 12, 2016)

California lawmakers are mulling over numerous workers’ compensation bills during the current legislative session that could have significant financial consequences for carriers and administrators.

The biggest potential changes for carriers arise from bills proposed in the Senate, which address fines, UR, the 24-visit cap, and salary continuation benefits, just to name a few.

UR and Timeliness

by Harry S. Chahal (April 29, 2016)

SB 863 attempted to improve the delivery of medical benefits to Applicants by mandating the use of evidence based medicine via Utilization Review (UR) and Independent Medical Review (IMR). Given the law of unintended consequences, this has brought us to the wonderful world of expedited hearings and Dubon challenges that we now routinely face. Fortunately, recent panel decisions have provided guidance and clarified the procedural and jurisdictional issues related to UR, IMR and objections to validity of UR denials.

In Dubon v. World Restoration, Inc. (2014) CCC 198 (Dubon II), the WCAB clarified the relationship between the WCAB and the UR, IMR processes. It held in this en banc decision that:

The Nuances of Supplemental Job Displacement Benefits

by Natalie W. Houng (April 26, 2016)

I recently received a great question concerning a bill from a school for an injured worker’s retraining. The bill totaled $6,000.00 and consisted of program tuition, course registration, books and supplies, and “other expenses.” I was asked whether defendant would have an obligation to pay for the injured worker’s computer up to $1,000.00 and miscellaneous expenses up to $500.00 in the future should he request it, in addition to paying the $6,000 bill.

Date of Injury

Assuming that the injured worker is entitled to supplemental job displacement benefits (SJDB), the first consideration for a carrier when issuing SJDB is the date of injury.

STAND AND DELIVER: Use of Subpoenas In Workers' Compensation (“Stand and Deliver” – the command by a highwayman to his victim in 18th Century England.)

by Kermit N. Sprang (April 6, 2016)

Sent out repeatedly by all of the participants in the process, the subpoena for records is easily the most frequently-used official document in workers’ compensation practice, yet it remains poorly understood, and frequently misused. Understanding its essentials will prevent you from being a victim of modern-day highway robbery.

Who May Issue a Subpoena?

Let’s start with a seemingly simple question: who can issue a subpoena? To judge by the custom and practice in workers' compensation, the answer appears to be absolutely anyone who wants to. Not so. Code of Civil Procedure § 1985 states that a subpoena may be issued by “... an attorney at law who is the attorney of record in an action or proceeding, may sign and issue a subpoena ¼.” Anyone else who wants to send out a subpoena must have it issued by the Clerk of the Superior Court.

The Home Health Care Burden

by Jeremiah L. Paul (March 23, 2016)

Many of us have experienced that gut-wrenching moment of receiving an out of the blue demand for reimbursement of hundreds of thousands of dollars for home health care. I was recently presented with such a demand, and as is often the case, the demand was accompanied with little to no proof or explanation. So, what is the injured worker’s burden of proof for home health care services?

As a part of SB863, the legislature enacted Labor Code Sections 4600(h), 4603.2(b)(1), and 5307.8, in an attempt to reign in out of control home health care costs. In the en banc decision of Hernandez v. Geneva Staffing, (2014) 79 CCC 682, the WCAB clarified the applicant’s new burden of proof.

As an initial matter, the WCAB confirmed that the SB863 changes apply to requests for home health care services in all cases that are not final regardless of date or injury or dates of service. Therefore, the WCAB identified two conditions which are a part of the injured worker’s burden of proof. First, the home health care services must be prescribed by a physician. Second, the employer’s liability is subject to either Section 5307.1 (which is not applicable as there is not yet an OMFS for home health care) or Section 5307.8.

LC 4850, TTD AND TERMINATION

by Sam S. Brar (March 23, 2016)

Labor Code (LC) 4850 provides wage loss benefits at the full rate without reduction as is the case with temporary total disability benefits for certain peace officer employees. A general overview of LC 4850 can be found by reading the companion B&B blog article “What is 4850 time” which can be found here. This article will go beyond the basic definition and workings of 4850 to discuss supplemental issues that inevitably arise given 4850’s parallel nature to TTD benefits as a wage loss replacement benefit.

104 Week Cap

The article previously linked discusses the impact payment 4850 benefits have on the 104 week TTD cap imposed by LC 4656. I will briefly discuss subsequent judicial and legislative activity with regards to what has been a dispute over whether the 104 week cap includes benefits paid under LC 4850.

Expedited Hearings: More Options Than You Think

by Sahar Jaberi (March 22, 2016)

Despite what some may contend, the requirements for requesting an Expedited Hearing are quite broad per the Labor Code.

Labor Code Section 5502 sets out specific requirements for requesting an Expedited Hearing. Of course, the claim must be accepted and the issues are generally limited to medical treatment, entitlement to temporary disability benefits, whether there is a validly established MPN, or disputes among carriers as to who should pay benefits.

How do you rate Vision Loss?

by Tim Mussack (February 3, 2016)

Ortega vs. Building Technologies, Inc – WCAB Panel Decision

W.C.A.B. No. ADJ4361477 (SBR 0336586)—WCAB Panel: Commissioners Zalewski, Sweeney, Deputy Commissioner Dietrich

In this non-binding panel decision filed 6/30/15, the WCAB awarded 56% WPI (53% WPI for visual system impairment, plus 3% WPI for pain related add-on), adjusting to 70% PD:

12.03.00.00 – 56 – [1]62 – 380H – 68 – 70%

B&B’s 2015 Legislative Roundup

by John P. Kamin (January 5, 2016)

We at the Law Offices of Bradford & Barthel LLP understand that the busy holiday season can make it quite difficult to remember what new laws the California Legislature passed in 2015. That’s why we’ve decided to concisely summarize the latest legislative developments for your reading pleasure as you ring in the New Year with your family and friends.

AB 1124: The Formulary
The most important bill signed into law during the 2015 legislative session mandated a new prescription formulary by July 1, 2017. We’ve summarized the impact of this bill in our most recent blog post, which is available at this link.