Bradford & Barthel's BLOG

EFFECTIVELY DEFENDING AGAINST INTERPRETING LIENS

2012-03-01T10:15:00.028-08:00

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.

When Are You Required To Pay Interpreter Fees?
The rules for when qualified interpreters are specifically required can be found under 8 CCR §9795.3. Generally speaking, interpreters are required for examinations by physicians at the request of the claims administrator, the administrative director or the appeals board, med-legal evaluations, depositions, hearings, conferences, arbitration and other settings determined by the Workers' Compensation Appeals Board to be reasonable and necessary to determine the validity and extent of injury to an employee. Additionally, Guitron provides that pursuant to the employer's obligation under LC §4600 to provide medical treatment to the injured worker, interpreters must be provided to workers at medical examinations if the injured worker cannot speak, understand, or communicate in English.

What Are The Legal Requirements On The Interpreter To Recover Fees?
The interpreter has the legal burden of proof to show that the services provided:

were reasonably required,
were actually provided,
were provided by someone qualified to do so, and
were reasonably charged.

1. Services Were Reasonably Required
The injured worker will need an interpreter if he or she does "not proficiently speak or understand the English language." (AD Rule 9795.3(a)) There are a number of ways this can be demonstrated. Interpreter use during a deposition can prove a need for an interpreter during medical and legal proceedings. A physician statement that an interpreter was required during a medical exam, an interpreter's testimony or sworn statement that he or she confirmed with the physician or the attorney's office that an interpreter was needed, or a worker's testimony that an interpreter was needed can all prove that an interpreter was reasonably necessary. If the defendant has authorized interpreting services, the interpreter will not have to prove that interpreter services were required for every date of service.

2. Services Were Actually Provided
The interpreter must also prove that he or she was actually present on the date of service in question, and that services were actually rendered. Some ways that this can be shown include the deposition transcripts, or in the case of a medical examination, the doctor noting that the interpreter was present in the report. The interpreter can also have a medical examiner or the applicant sign a form that states that the named interpreter was present, and that an interpreter was actually needed. In the case of doctor's evaluations, the form should also include that the doctor doesn't speak the patient's language, the doctor doesn't provide interpreters, and that the office's policy is that patients who are not proficient in English should be accompanied by an interpreter. There are of course other ways for an interpreter to prove that they were present. However, the interpreter must prove that they were present if you are going to pay for the bill. The burden is on the interpreter to prove this. It is almost always a good idea to also cross reference the medical report with the actual bill to verify that the interpreter named is the same on both documents.

3. Services Were Provided By Someone Qualified To Do So
The interpreter must be qualified to provide the billed services. Remember to always request information regarding an interpreter's certification. Very often interpreters used are not legally certified. A qualified interpreter is a "certified" or "provisionally certified" interpreter pursuant to 8 CCR §9795.1(f). When the setting is not an appeals board hearing, arbitration or formal rehabilitation conference, and when a certified interpreter cannot be present, a "provisionally certified" interpreter may be used.

Provisionally certified interpreters are deemed to be certified by agreement of both parties (8 CCR 9795.1(e)). Often interpreters will claim they have been provisionally certified, but if you didn't agree to the interpreters qualifications and they aren't certified you probably don't have to pay. However, be careful as Government Code Section 11435.55 provides that in medical examinations, if a certified interpreter cannot be present at a medical evaluation, "the physician provisionally may use another interpreter if that fact is noted in the record of the medical evaluation." 'Even though an interpreter must be certified for medical legal charges such as depositions and Workers' Compensation Appeals Board proceedings, an interpreter still must prove competence to provide these services. Simply claiming to be qualified is not sufficient. Items to request include training, education and the nature (type) of interpreting services provided.'

4. The Interpreter Must Show The Reasonableness Of Charges
Remember that the interpreter must prove that the charges are reasonable. You can look to 8 CCR §9795.3(b)(2) for a fee schedule on interpreting fees. In most situations, the fee schedule will be $11.25 per quarter hour or portion thereof, with a two hour minimum, or the market rate, whichever is greater. The interpreter can establish the market rate for fees by submitting documentation to the claims administrator, including a list of recent similar services performed and the amounts paid for those services. Market rate is defined as "that amount an interpreter has actually been paid for recent interpreter services provided in connection with the preparation and resolution of an employee's claim."(8 CCR §9795.1(h)) Always argue that the market rate is fee schedule in the absence of any evidence to the contrary.

The fee schedule does not apply to regular medical treatment. In cases of interpreting liens for medical treatment, the court relies on the factors enumerated in Kunz v. Patterson Floor Coverings, Inc. (67 Cal. Comp. Cases 1588). The court will consider: a) the usual fee accepted (not charged) by the interpreter, b) the usual fee accepted by other interpreters in the same geographical area, 3) other aspects of the provider's practice that are relevant, and d) any unusual circumstances in the case. Once again, you can always argue that $11.25 per quarter hour is reasonable, and the two hour minimum may not apply. The interpreter could conceivably have only been at the doctor's office for 15 minutes.

"Market rate studies that only site State Fund are insufficient. They should include payments from several carriers and for what types of services. Also, your attorney may need rebuttal evidence to market rate studies and they should include payments made to several interpreters if your case will be set for trial."

In denied cases settled by Compromise & Release, the interpreter must prove AOE/COE issues to recover fees for non med-legal medical interpreting.

Just like with any other medical lien claimant, when a case has been settled by Compromise & Release and liability has been denied, the lien claimant must show that the injury arose out of and occurred in the course of employment, and that the medical treatment itself was reasonable and necessary. This is important to remember, as many disputed interpreter liens have to do with lien treatment by doctors. The burden is on the interpreter to prove AOE/COE issues and reasonableness of treatment in order to recover fees.

Conclusion
Remember that all of the above must be proven by the interpreter to recover fees. This is a relatively high burden of proof on the lien claimant, so make sure to demand all proper documentation before you pay interpreting fees. If they can't provide all of the necessary documentation, you shouldn't be paying.

1 "Moran Says Lien Problem Threatens Entire System" Greg Jones.Workcompcentral.com, 01/24/2012

Congratulations Sandy Rosenfeld

2012-02-07T12:06:00.001-08:00

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

2012-02-03T11:59:00.000-08:00

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.

It is the opinion of the author that compound medications made their entrance on a large scale due to the demise of another trendy medication phenomenon, repackaged generic medications. In 2007, California instituted a change to their fee schedule which largely eliminated differential pricing on repackaged drugs. As a result, repackaged drug prices dropped sharply, resulting in a rapid decline in their use. Shortly thereafter, compound medications began to appear as an alternative to other medications use. Compounds are not a new modality for providing pain management and other needs though their use has exploded in the past few years.

The Overall Cost

Pharmacy and medication treatment already constitute a large percentage of all costs in Workers’ Compensation medical care. With the addition of compound medications, the problem has expanded to epic proportions. A recent study by Rand Corp., at the request of the California Commission on Health and Safety and Workers’ Compensation (CHSWC), found that payments for these medications accounted for 12% of all drug costs in the first quarter of 2009 alone. Payments from 2006-2009 totaled $29 million over three years. State Compensation Insurance Fund (SCIF) payments in 2009 totaled $28 million.[1] Further CHSWC analysis also found that approximately 25% of all treatment liens at all WCAB offices involve pharmacies and/or dispensed drugs.[2] The numbers continue to increase over time. The amount of liens clogging the WCAB was a large enough problem to force Judge Frank of the L.A. WCAB to hold conferences in late 2010 to address the possible mass consolidation of liens involving these medications, in an attempt to control lien filings and litigation.

The California State Assembly has also become involved in an effort to reign in the rapidly expanding use of these medications and the problems associated with their billing. Assemblyman Jose Solorio (D- Santa Ana) recently introduced AB 378, which has been signed by Governor Brown. AB 378 adds pharmacy goods and compound medications to the list of medical services for which it is unlawful for a physician to refer a patient for treatment if they or immediate family members have a vested financial interest in the facility that receives a referral. The bill also establishes maximum reimbursement amounts for compound medications and would require billing be done at the ingredient level. Further, the bill places limits on reimbursement for physician-dispensed pharmacy goods.

The overall cost of these medications is not limited to the cost of the actual medication. Health risks, issues with billing and distribution and physician compensation make compound medications an expensive and often unreasonable modality of medical care.

Compound Medications Defined

“Compounding” includes combining drug ingredients to meet specific medication needs of patients that may not otherwise be available to them. Compound medications are designed to be customized on a patient-by-patient basis for multiple reasons including specific dosage strength requirements, ease of application, issues with the intake and digestion of pills, and various allergic reactions to other medications. Medications are most common in cream or lotion form due to ease of application and alleged absorption into the skin like regular lotion. Compounds most often use a base “active” medication, and at least one other additive for a cooling or heating sensation. As the active medication(s) may constitute only a small portion of the total ingredient, inert or “inactive” ingredients are also included based on needs and strength. For example, a common lotion known as Amitriptyline T includes Amitriptyline at 4%, Tramadol at 20% and the compound “agent” Pencream.

It is important to note that most medications used in compounds are not recommended for use based on the Medical Treatment Utilization Schedule (MTUS) Chronic Pain Guidelines. For example, Gabapentin and Baclofen do not have peer-reviewed literature to support their use. Capsaicin is only recommended for individuals who have already tried other forms of medication and have not had successful results. Stronger doses of Capsaicin are not proven to be more effective than lower doses. Lidocaine is only recommended for localized, peripheral pain and for use after anti-convulsants or depressants have been tried.[3] Many of these medications have origins vastly different than pain management. Gabapentin was originally developed for treatment of epilepsy. Clonidine was developed as an anti-hypertensive drug for treatment of high blood pressure. The “off-label” use of these medications makes them a less than desirable choice for their intended purpose.

Hidden Health Risks

Unlike other drugs, compound medications are not approved by the Food and Drug Administration (FDA). Instead the State pharmacy board oversees and regulates their manufacture and distribution.[4] Due to the lack of FDA oversight, compounding pharmacies are able to take advantage of lax regulations and oversight by stocking large quantities of these medications. Although recommendations to alleviate this problem include the introduction of at least one FDA-approved drug into a compound mix, they have not been implemented. Further, the science available does not support the contention that these medications are even effective. The author of this article is not aware of any double-blind testing having been completed on compound medications to document their efficiency in bringing about their alleged benefits. There are also questions as to if ingredients are timely and properly absorbed into the body from application on the skin.

California regulations require pharmacies to ensure that these products are being properly stored, mixed, packaged and labeled. But do we really know if these pharmacies are following through with their monitoring? Do we have any idea who is actually mixing the compounds together, and if they are licensed and trained to do so? These issues have been a concern in the past as information pertaining to the integrity of pharmacy practices is not widely available due to the limited amount of data available.[5]

Issues with Billing

It is common to see a large invoice attached to a single compound medication prescription. The high price and subsequent denial for payment or reimbursement at a much lower amount is perhaps the biggest reason liens are piling up at the WCAB. The average wholesale price (AWP), which is the self-reported price by the manufacturer, serves as the base for fee schedule assessment. Unfortunately, multiple providers equal multiple AWP’s. Uniformity in AWP’s is not found amongst various providers. Fee schedule for compound medications is based on allowances found in the Medi-Cal fee schedule.[6] The Medi-Cal fee schedule is limited to companies in their drug rebate program, thus, not all medications appear in the database. Despite recommendations from the DWC on pricing, their recommendations have not been codified.

Even with a single location for assessment of billing (Medi-Cal fee schedule), the OMFS is vulnerable to fraud and excessive payments as the allowances for compound medications are based on the particular manufacturer. Simply put, when not taking advantage of multi-source pricing to find the lowest AWP, higher figures equal higher payments. Further complicating matters is providing allowances for ingredients not found in the MediCal database. Compounds can include rarely used or uncommon medications, and many of these drugs lack actual NDC codes.

Invoices that arrive for review and processing are often largely incomplete. At minimum, the billing should include a breakdown of the compounds used and quantity of each component. NDC codes should be accurate and should be listed for active and inactive ingredients. As discussed above, these medications do not have their bulk pricing listed on invoices. Thus, a medication which would be reimbursed for hundreds of dollars could be processed for a fraction of the price. While billing has improved over time, the issues around bulk pricing and AWP remain unresolved.

Issues with Quantity and Distribution

It is difficult to determine the quantity needed to constitute a day’s worth of medication, as an amount needed per individual is incredibly subjective. Therefore, current medication distribution could be for amounts much larger than are needed, resulting in waste, as well as an increased price in medications based on quantity. Shipping and handling creates yet another problem. Included with the reimbursement price of a medication is a dispensing fee, which is a set rate depending on if the medication is name-brand or generic. There is no fee schedule or even recommended reimbursement for shipping and handling. Shipping and handling are generally only seen when medications are mass produced from pharmacies out of the area (mail order) and then shipped to injured workers based on prescriptions.

How are these prescriptions making their way to pharmacies not accessible by the injured worker? The likely source is from the prescribing doctor, which raises ethical questions. Does the doctor have a fee agreement or financial interest in the pharmacy? Does the pharmacy conform to California state law and have a current license to dispense medications? Are the employees of the pharmacy properly trained and approved to package and ship medications? Answers to these questions are difficult to answer, and pharmacies do not want to answer them.

Financial Issues

As previously stated, one need only to trace most medical “fads” back to one single item: money. Who can make money from the medical treatment, and more importantly, who is making money from the medical treatment? California Labor Code § 139.3 precludes physicians from referring patients for certain services if the physician or his immediate family has a financial interest with the entity that receives the referral. These “self referrals” are nothing new to the industry. For example, the introduction of surgical centers for outpatient procedures into the Workers’ Compensation arena brought with them a plethora of doctors who grouped together or invested in various surgical centers. Within a short amount of time, surgery centers were found in all major metropolitan areas throughout the entire State. Fortunately, assemblyman Solorio’s bill goes to great lengths to address this problem, adding prescription and pharmacy services to the growing list of items not allowed to be referred out when there is a financial interest.

Recommendations

What are some of the recommendations we can demand be implemented to reign in some of the problems discussed above? There is no single fix, other than the elimination of compound medications altogether. As this does not appear to be possible, some recommendations include:

Establishing ceilings on reimbursement for medications including percentages of reimbursement from MediCal payment schedules or documented cost of providers who are filling medications. It appears AB 378 accomplishes some of this recommendation.
Setting maximum reimbursements allowed based on bulk ingredient purchases, a set percentage for mark-up and a set maximum dispensing fee.
Requiring use of NDC codes if available. If not, billing must include additional information including a description and/or invoice showing the price and related quantity of the ingredient. Otherwise a $0 reimbursement will issue. AB 378 will accomplish some of this recommendation.
Encouraging carriers and TPA’s to participate in a pharmacy benefit management (PBM) company. These companies handle billing, create pharmacy networks and even help control costs. PBM’s can often establish protocols for timely review within UR parameters. Case law allows for PBM’s.
Reviewing the current requirement for AWP’s as discussed above and requiring payment based on the lowest available price from all manufacturers.
Preventing physicians from referring services pertaining to compound medications to locations where the physician or immediate family member has a financial interest. AB 378 will result in adding compound medications to the list of goods under Labor Code § 139.3.
Preventing liens from being filed for more than the statutory amount allowable under the fee schedule or set price amounts. Additionally, requiring lien claimants to provide all documentation needed to support their position at the time of the initial filing.
Amending Labor Code § 4906.3 to require that liens cannot be filed until a medical bill is actually in dispute.
Preventing the use of bulk ingredients that are not components of FDA approved drugs.
Removing compound medications from use until they are subject to double blind testing and FDA approval.

Defenses

The options for defense of compound medications are relatively simple to use and implement. Most require few steps beyond normal practices in the claims process and all can be quite effective. In implementing a strategy for defense, it is important to focus on your particular case, and choose the argument options best suited for your set of facts.

Use the Labor Code

a. Labor Code § 4604.5(e) requires “other evidence-based medical treatment guidelines [be] recognized by the national medical community and that are scientifically based.” When paired with Labor Code § 4600, treatment that is not supported by “a preponderance of evidence establishing that a variance from the guidelines is reasonably required”, should be argued to not be substantial medical evidence.

b. Labor Code § 4600.1 requires the use of generic medications unless the physician demonstrates they are not available or notes why the name brand medication is necessary. Make the doctor explain why compound medications are necessary.
Verify if the doctor comments on the effectiveness of medications to support ongoing use as is required. Most of the time, this does not occur.
When reviewing billing, ensure your bill review company/department checks to ensure all NDC codes are proper. Those that are not receive a brief explanation and $0 reimbursement.
Request copies of all prescriptions. Due to submission to the pharmacy directly, we often do not know the exact medication prescribed, the dosage and the number of re-fills, if any. We frequently see multiple pharmacies ship the same medications on a schedule- Are they correct in doing so?
Ask for receipts or invoices on purchases for bulk medications and inactive ingredients- What are they paying for the medications and what is the mark-up they are asking for? This is discoverable information and can be used to argue price.
Insist all prescriptions are dispensed through a pharmacy benefit management (PBM) program and encourage clients to participate in one. See the Brambila decision.
Inquire about the prescribing doctor’s financial interest or relationship with dispensing pharmacies. Most doctors use the same pharmacy, regardless of location of the applicant.
Never pre-approve medications. Always insist they be submitted to UR.
Request licensing information of the facility performing the services. Are they up to date? Are they complying with State regulations?
Ask for qualifications/training/certificates of the people creating the medications.

The more information you demand, the more likely pharmacies will be willing to negotiate, and the more information you will have for trial. They do not want you to know their bulk pricing and mark ups. Many may have staff that are not properly trained and some may have licensing issues. In order to not release this information, they will often drop demands for lien settlement by significant amounts and become much more reasonable in settlement discussions.

Compound medications are here to stay. However, just like any other “fad” in medical treatment, the more we become aware of the risks of the product and the defenses against use and reimbursement, the easier the claims process will be.

With over 85 attorneys practicing in 12 offices throughout California, BRADFORD & BARTHEL, LLP is the industry leader in the aggressive defense of Workers’ Compensation, Subrogation, Employment and Labor matters.

For further inquiries or information, please contact Managing Attorney Tim Rose in our Santa Rosa office at trose@bradfordbarthel.com or Managing Partner Mark Fletcher at msfletcher@bradfordbarthel.com.

*Special thanks to Juan Pedroza and Steve Napolitano

[1] Lifsher, Mark. “Compounded Drugs bring big profits to California doctors, study finds”. Web. 29 January 2011. http://articles.latimes.com/2011/jan/29/business/la-fi-compound-drugs-20110129

[2] California Commission of Health and Safety and Workers’ Compensation. Liens Report. 5 January 2011. From http://www.dir.ca.gov/chswc/allreports.html.

[3] California Division of Workers' Compensation. Medical treatment utilization schedule regulations. Title 8, California Code of Regulations Sections 9792.20-9792.26. p. 18, 28, 30-34, 40. May 2009. From http://www.dir.ca.gov/dwc/DWCPropRegs/MTUS_Regulations/MTUS_Regulations.htm

[4] www.fda.gov. See search terms “Compound Medications”, “California”.

[5]

United States

Food and Drug Administration. “The Special Risks of Pharmacy Compounding” Consumer Health Information. May 31, 2007.

[6] http://www.dir.ca.gov/dwc/pharmfeesched/pfs.asp

Does Terminating an Employee "Terminate" Your TD Defenses?

2011-09-01T16:35:00.000-07:00

by Don Barthel, Esq.
Familiarity Breeds Contempt
Does this story sound familiar?

The case is accepted, the injured worker (IW) has returned to a modified position and, thus, you have discontinued temporary disability. Life is great...that is, it seemed great until you receive the "nasty gram" from applicant's counsel advising that IW has been terminated and you owe temporary disability (TD) retroactively and continuing!

Do you?

Terminating an IW is just about the surest way of inspiring IW and applicant's counsel to push for the full 2-year TD cap. You can bet your bottom dollar that TD—retro and continuing—will quickly become an expensive, hard-fought issue. What do you need to know to avoid the TD trap?

What's TD All About?
"The essential purpose of [TD]...is to help replace the wages the employee would have earned, but for the injury, during his/her period(s) of temporary disability" [Signature Fruit Co. v WCAB, (Ochoa) (2006) 142 Cal.App. 4th 790, 801]. An employer's obligation to pay TD ceases when the replacement income is no longer needed, such as when IW has returned to work [Huston v. WCAB (1979) 95 Cal. App.3d 856, 868]. If an IW is released to modified duty and the employer offers him/her a job within his/her work restrictions, IW is no longer entitled to TD, even if IW doesn’t accept the modified duty [Vittone v. WCAB (2001) 66 Cal. Comp. Cases 435 (writ den.)]. For example, in Seale v. WCAB (1974) 39 Cal. Comp. Cases 676, 677 (writ den.), the WCAB found than an IW who did not return to modified duty, because his union was on strike and he would not cross the picket line, and therefore he was not entitled to TD because his action "was voluntary and for reasons other than physical inability to work."

But Termination is an "Employer Thing"!
The case law is clear that IWs who refuse to accept properly tailored modified duty can be denied TD. This usually involves a situation in which the employee—and the employee alone—has made the unilateral decision to stymie the employer's good faith efforts to return IW to work. But what happens when it is the employer who takes the action, such as terminating IW, thereby making it impossible for IW to take advantage of modified duty? In other words, isn’t the scenario somehow different where the lack of availability of modified duty is due to an "employer thing" (aka terminating IW), as opposed to an "employee thing" (aka refusing to cross a picket line, etc.)?

NO!!!

The WCAB has made this clear, time and again, in various scenarios. For example, it was held that a termination for "participation in unlawful activities" of an IW who had accepted an offer of modified duty, but not yet begun working, "was a 'for cause' termination justifying the termination of [IW's] right to vocational rehabilitation" [Anzelde v. WCAB, (1996) 61 Cal. Comp. Cases 1458 (writ den.)]. Not surprisingly, this reasoning has been extended to TD.

Think about it. While friends at CAAA may claim—as suggested above—that termination is an "employer thing," is it really?

Is an employer truly free to keep an employee who, for example, participates in illegal activities?

OF COURSE NOT!

Should California’s workers’ compensation laws, as they pertain to TD, penalize employers for good faith firings of IWs?

OF COURSE NOT!

And don’t forget...it is IW's burden to prove that his/her wage loss is due to his/her industrial injury. If modified duty was or would otherwise be available but for IW's bad behavior requiring his/her termination, has IW met his/her burden of proof?

OF COURSE NOT!

Test Time!
So you’ve received the "nasty gram" from applicant’s counsel advising that IW has been terminated and, because he/she can no longer take advantage of the proffered modified duty, you owe TD retroactively to the date of the termination and continuing!

What do you need to know to assess your liability?

If the employer had, prior to the termination, accommodated the IW's restrictions, persuasive evidence that the termination was "for good cause" should result in a defense verdict!

But what if IW was terminated for cause before modified duty is offered or accepted? The WCAB, in at least one panel decision, has suggested that "a more rigorous inquiry regarding the genuineness of the offer of modified duty is necessary" [Quiett v. System Transport, (5/15/08) OAK 0336115)]. If an employer indicates it would have offered the applicant modified duty but for applicant's termination for cause, the WCJ and Appeals Board must determine... whether the... putative offer... is genuine, in good faith, and within the applicant’s work restrictions [Robertson v. WCAB (2003) 112 Cal.App.4th 893].

An "Odd" Argument
As you fight the good fight on TD issues, expect applicant's counsel to attempt to muddy with waters by referencing the "odd lot doctrine."

What is it?

The essence of the "odd lot doctrine" is that if an IW is temporarily partially disabled and only able to do "odd" jobs or "special work," the burden shifts to the employer to establish that there is work available that IW could perform. If there is no such work available, temporary total disability is owed [See Meyers v. IAC, (Titsworth) (1940) 39 Cal.App.2dd 665)]. However, when IW is released to light work of a general nature, the burden does not shift to the defense; it remains with IW to show that his/her inability to obtain employment is a consequence of the industrial injury (Id. At 669).

Fight!
IW has been fired and modified duty was—or would have been —available? Expect a fight (particularly in this economy). Deny the TD and collect your evidence to prove:

IW was terminated

Termination was "for cause"

Termination was in "good faith"

Modified duty was (or would have been) available

Modified duty was within IW’s restrictions

Offer (or putative offer) of modified duty was in "good faith"

Good luck!

Don Barthel is a founding partner of Bradford & Barthel, LLP, as well as B&B's Rating & File Consultation Services. Mr. Barthel is an acknowledged expert regarding the AMA Guides (5th) and the 2005 PDRS. Much of his time is dedicated to teaching these topics to adjusters, human resource directors, employer representatives, attorneys, and physicians throughout California and the United States. Have a PDRS or AMA Guides question? Call Don Barthel at (916) 996-1263 or email him at dbarthel@bradfordbarthel.com.

[1] While I recognize that the "Terminator," aka "Governator," aka Governor Schwarzenegger was officially replaced when Jerry Brown was formally inaugurated as governor on January 3, 2011, I hereby predict that references to the "Governator" will continue to make regular appearances in B&B's BLOG!

How Much is a DFEC "Expert" Really Worth?

2011-09-01T16:30:00.000-07:00

by Don Barthel, Esq.
We've all seen it... The PD in a case rates to something reasonable and all is well, until applicant's attorney begins to rattle the Ogilvie saber. Either expressly or implicitly, counsel makes known that—unless you concede to some ridiculous demand —AA will retain a "DFEC expert" and stick you with the bill.

Is it time to settle? Get the sword and split the baby?

Heck no!

Don't believe the baloney... you've got (very) little to worry about when it comes to "DFEC expert" bills and liens.

Really!

What does Labor Code §5811 really say?
If you've faced the threat of "DFEC expert" bills, you have inevitably received a letter from AA referencing Labor Code §5811 as proof positive that you—the defendant—will be stuck paying the fiddler... er, um.... the "DFEC expert"!

Not so fast!

Interestingly, every AA letter I've ever reviewed cites Labor Code §5811 for the proposition that the defense pays (and pays, and pays), but those same letters never quote the labor code.

Can you guess why?

IT DON'T SAY WHAT AA SAYS IT SAYS!

§LC 5811(a) "...In all proceedings...before the appeals board, costs as between the parties may be allowed by the appeals board." (Underline added)

"[M]ay" does not mean "must"... no matter how emphatically AA argues to the contrary!

How Important Is This?
Less than a week after the WCAB issued its first major en banc decision relating to rebutting the diminished future earning capacity (DFEC)¹, Workcompcentral published an article entitled "'Bargaining Chip' Discovered In En Banc Ruling", which quoted one source as arguing that "the expense of the [DFEC] expert becomes a bargaining chip for the applicants."

Five years later, that observation has turned out to be remarkably prescient. Indeed, "DFEC expert" fees have gotten so out of control that Assemblyman Richard Pan has introduced AB 1168 to amend Labor Code §5307.7 by requiring the Division of Workers' Compensation to adopt a fee schedule establishing maximum fees for such "experts" by no later than January 1, 2013.

I have seen bills issued at $250, $300 and even $350 an hour, totaling thousands, coming from "DFEC experts."

Haven't yet seen such a bill/lien?

You will!

What can you do?

Glad you asked...

Fighting "Experts" Bills/Liens
Throughout this article, I have used (and will continue to use) quotation marks around the phrase "DFEC expert."

Why?

Simple... I ain't stipulating to the "expert" status of any so-called "DFEC expert" (and neither should you...EVER!).

Unless/until it is ruled that applicant counsel's "expert" really is an "expert," that individual's reports, testimony, and the like are nothing more than opinions. I've got lots of opinions... I'll bet you do, too. BUT unless you, I and—more relevant to our discussion—AA's "expert" proves he/she qualifies as an "expert," he/she is not entitled to reimbursement!

"But, but, but...", you stammer, "AA's expert is used around the state. This guy testifies everywhere. And he wins a lot. Isn't he an expert?"

NO!

The WCAB's en banc opinion, Costa II, addressed this issue directly: "[T]he qualifications of each...expert must...be determined on a case by case basis." ²

TAKE AWAY: Always object to the "expert" status of any expert identified by AA who begins issuing bills and liens in your direction.

Remaining Objectionable:
While you're issuing your lien objection and questioning the so-called "expert's" true status as an "expert," add a second objection. Specifically, cite Labor Code §4621(a), which provides:

"...the employee...shall be reimbursed for...medical-legal expenses...reasonably, actually, and necessarily incurred...The reasonableness of, and necessity for, incurring these expenses shall be determined with respect to the time when...actually incurred."

Let's re-read this statute, but from a defense perspective!

Even if lien claimant is—eventually—able to prove to the WCJ's satisfaction he/she is an "expert," the lien/bill goes unpaid if the expense was...

not "reasonably...incurred....[at] the time when...actually incurred",

not "actually...incurred....[at] the time when...actually incurred", and/or

not "necessarily...incurred....[at] the time when...actually incurred"

Given that most "DFEC expert" reports I've had the pleasure to review have included serious flaws in methodology, they are invariably subject to some or all of these objections.

Still Not Sure What To Do?
Based on the sampling of "DFEC expert" reports reviewed at Bradford & Barthel, it's a very good bet that most—if not all—of the "DFEC expert" bills/liens you receive will be subject to the (1) non-expert, and/or (2) LC §4621(a) arguments, so be sure to use the ole standbys at every turn.

Still not quite sure what to with a DFEC issue? Give me a call... I'll bet you a nickel you've got a winning hand for the defense!

Don Barthel is a founding partner of Bradford & Barthel, LLP, as well as B&B's Rating & File Consultation Services. Mr. Barthel is an acknowledged expert regarding the AMA Guides (5th) and the 2005 PDRS. Much of his time is dedicated to teaching these topics to adjusters, human resource directors, employer representatives, attorneys, and physicians throughout California and the United States. Have a PDRS or AMA Guides question? Call Don Barthel at (916) 996-1263 or email him at dbarthel@bradfordbarthel.com.

¹ Costa v. Hardy Diagnostic and State Compensation Insurance Fund (12/06/2006) 71 CCC 1797)

² Costa v. Hardy Diagnostic (11/13/07) 72 CCC 1492)

Flipping the Switch: Running B&B from the Cloud (from a KM Perspective)

2011-09-01T16:25:00.000-07:00

by Eric Hunter

At Bradford & Barthel (B&B), last year we chose to integrate our business model with Google, specifically the Google Apps collaborative cloud platform. A brave (and/or stupid) move, some have said.

Why?

Not 'just' because of the cloud security/functionality argument, but also because of Google's lack of experience in legal (at least on paper). We're told that in our industry, everything must be custom-made for lawyers given the way they work with legal taxonomies and so forth. Also, comparisons to other professional service organizations and how they are run are often few and far between.

Really?

Why?

With several years of corporate business experience under my belt, I see many ideas and best practices, especially as they relate to technology and change management, from which legal can learn and benefit.

Driving Change

At Oracle and Intel, I learned one must redefine his/her role every 18 months to survive. At these companies, change is so expected, so fast, such a thriving part of the business culture that one could expect not only technology interfaces to change, but behavior and outlook to quickly alter as well. Individuals in these corporate environments are expected to bring about this change themselves. Granted, most behavioral change and change management initiatives are driven by the consumer first, with the tools coming second. However, with the onset of social, media-driven technology, behavioral change is often being driven by tools first, by the consumer second, and then integrated into business.

With this change of perspective, but also with a tangible list of technology needs to check off, our firm ventured to ILTA¹’s 2009 Annual Conference in Washington, D.C. Based on our learnings at conference, and in keeping with what "others" outside of legal were doing with innovative cloud solutions, we decided to shift our paths toward an environment that would be competitive, social media-driven and innovate day-to-day, week-to-week and month-to-month to drive behavioral change.

Choosing Google Apps

We wanted our entire information management platform to be exposed via our intranet, extranets, and portals, and integrated through unified search, both internally and with clients. We needed this platform to aid in our alternative staffing models and to enable outsourcing through efficiency change management initiatives. We did not want to develop this platform ourselves, support this platform, nor devote resources to product upgrades and rollouts. This platform had to evolve, compete, and move forward through continual innovation.

Enter Google Apps.

We chose Google Apps for this platform, though in reality we chose to merge our business model with the innovation Google represents, as opposed to clinging to the name of their particular ‘flavor’ of cloud. With platforms like Google and competing solutions, the focus has to not only be on what these collaborative platforms offer the enterprise, but how their enormous resources and drive for competition improve the evolving platform at speeds and in ways in-house solutions at global firms or firms of any size cannot realistically replicate.

While our firm's leaders are not high-risk gamblers, we did make a few bets when it came to Google Apps... we bet that our resources at Google² would be better able to build, innovate, and evolve their technology than B&B; we also bet this platform would integrate between our firm, our clients and our goals as a business.

One Year In

Since B&B's initial phase Google Apps rollout last April, we have rebuilt a combined Knowledge Management and Technology Department. We now use our collaborative cloud Google Apps platform to apply KM concepts and behavioral change initiatives to the firm's areas of practice, to its business model, and to attract new lines of business.

The following changes have also taken place:

Collaborative cloud solutions instead of traditional software licensing models: B&B has formed a revenue-generating line of business focused on change management, risk management, and project management, and integrating Google Apps with future clients' business models and information management platforms. This fresh approach has enabled us to deliver revenue-generating strategic collaborative cloud solutions not only internally, but via consulting services to future law firm clients.

Technology and personnel outsourcing: Within this environment, we are initiating alternative staffing models by outsourcing both technology and personnel, and shifting existing work processes with project management initiatives. This process began across departments such as HR, finance, marketing, legal and administration, and then moved to our varying areas of practice. The outsourcing and alternative staffing models led to substantial cost savings and innovations in alternative fee arrangements (AFA). In outsourcing personnel and processes, both legal and otherwise, our AFAs are negotiated with each client relative to their needs and our ability to meet them.

Collaboration: B&B uses the social media-driven aspects of Google Apps to collaborate and drive efficiencies, reshape how attorneys think about their practice and act as a catalyst in the ongoing evolution of the firm KM library. An internal social media environment that is shared with clients—integrating through all aspects of the cases we work, how they’re worked and how they’re shared—is a key component for future successes.

Licensing: We no longer engage in license upgrades. All upgrades to the platform are part of the evolving nature of the cloud-hosted platform and touch all areas of information management and unified messaging. Be it search, voice, video messaging, intranets/extranets, docs, etc., it doesn’t cost anything different or more than it does on a per-user, per-year subscription basis.

Security: A recent Homeland Security memo indicates law firms are being breached by outside entities to obtain sensitive, privileged information. In response, B&B's senior management demanded a plan whereby security and privacy needs evolve into a solution that competes directly with multibillion-dollar fortune 500 solutions. Based on Google's ongoing developing security resources at play, we have among the most competitive infrastructures/environments possible to quell security issues both internally and for firm clients, with no additional cost to the firm in resources, licensing or infrastructure.

Challenges for the Future = Opportunities Today
From my perspective, many of the technological, behavioral and business challenges associated with collaborative cloud computing are excellent opportunities for law firms to expertly marry technology (hosted or not) with business objectives. Examples include integrating third-party business solutions into evolving social media platforms; communicating to peers that concerns on security and privacy are met by investing in a solution that has the resources to devote to quickly evolving solutions; continuing creative AFAs as the industry moves toward a new era of relative transparency through social media-driven technology; alternative staffing arrangements being facilitated and expanded through outsourcing; and legal project management creating (and advancing) the roles of strategists and business analysts within law firms.

As we communicate through ILTA toward Law2020^TM, social media-driven technologies and collaborative communications will ensure the focus on the 'international' thrives, while business, legal, knowledge management and technology initiatives continue to merge together.

Eric Hunter is the Director of Knowledge Management and Technology at Bradford & Barthel, LLP, where he is currently integrating a cloud-hosted collaboration platform within the firm's 12-office environment. Eric has written and spoken about collaborative cloud solutions at numerous legal events and conferences and is frequently quoted in articles pertaining to legal cloud computing and SaaS delivery. He is also the recipient of ILTA’s 2010 Distinguished Peer Award for Knowledge Management Champion. Eric can be reached at ehunter@bradfordbarthel.com.

¹International Legal Technology Association has—for over three decades—led the way in sharing knowledge and experience for those faced with challenges in their firms and legal departments. Through delivery of educational content and peer-networking opportunities, ILTA provides members with information resources in order to make technology work for the legal profession.

²Google currently maintains $57.851 billion in assets and 24,000+ employees on the payroll.

Increasingly Cloudy Skies: A Founding Partner's Perspective

2011-09-01T16:20:00.000-07:00

by Don Barthel, Esq.

Our clients want/deserve/need/demand faster, better, and less expensive legal services. Acknowledgeing this, in 2010, Bradford & Barthel, with 200+ users and 12 offices throughout California began a multi-year implementation of taking the firm to the cloud. The senior management team led the charge leaping to a collaborative cloud computing model. Since that time, the firm has realized tremendous cost savings (via reduced software license agreements, and less required IT and technology infrastructure costs), forced its staff to collaborate on work product (which many now swear they can't live without), and extended the ability to review documents and expedite responses to client requests.

And this is just the beginning.
Still, and as one might expect, the firm's "first-to-market" move has been met with pessimism, rumblings about confidentiality, security concerns, and doubts that collaborative cloud solutions such as Google Apps are ready for prime time in the finicky legal space.

It Might Not Be Perfect, But…

What is the current state of collaborative cloud computing? It seems there may have never been a better time to ask that question, especially with another major outage (this time Amazon was so lucky) dominating the technology pages and increasing debate over cloud computing’s future (particularly, the notions that the cloud is too dangerous and not enterprise-worthy).

Don't believe it! Amazon’s outage scenario reminds me of a recent flight I took on April 1, 2011: a Southwest Airlines (SWA) aircraft suffered fuselage rupture at 36,000 feet, resulting in loss of cabin pressure and requiring an emergency landing. As I sat six rows from the five foot-long, two foot-wide gaping hole, I came to believe I would never see my children again. I eventually passed out when my air mask failed to deliver oxygen. On that same day, a Delta flight struck a flock of large cranes and an American Airlines plane failed to properly pressurize, requiring an emergency landing when passengers became ill—quite a tough day for an industry that is statistically far safer than auto travel!

Did the SWA, Delta, and American Airlines incidents give rise to a debate over air transportation’s future?

Of course not!

Did I stop flying?

Of course not!

Is cloud computing perfect?

Of course not!

But unless you refuse to fly until all fuselage ruptures, losses of cabin pressure, and in-flight crane run-ins have been eliminated, common sense, client demands, and maintaining profit margins during lean times dictate that the cloud—with all its imperfections— be judiciously employed by every legal practice that hopes to become and/or remain relevant.

Lessons Learned by a Non-Techie

As a "non-techie," transitioning to the cloud has been remarkably painless. In fact, as each phase is implemented, I’m repeatedly reminded of Pogo's observation: "We have met the enemy and he is us," or, more accurately, the enemies are ME and MY FEAR of CHANGE and the UNKNOWN.

We're all the same, aren’t we? Remember back (way back) to a simpler time when you faced the daunting task of riding a two-wheeler without training wheels? Or moving out of your parents' home to your own apartment or dorm room? While my children believe these events occurred at least a hundred years ago, I certainly recall how the mix of excitement and dread gave me pause just prior to plunging forward into the great unknown.

Feelings of dread were repeated within the last two years as our entire law firm (all 12 offices—GASP!!) prepared to plunge (soar?) into the cloud. Much like my experiences from (not) so long ago, I haven't stopped pedaling and I have never regretted the move.

Nervous about taking the plunge? The beauty of cloud computing is that it need not be an all-or-nothing proposition.

While the Luddites of the nineteenth century certainly had compelling arguments against automation, and would no doubt point to my SWA flight as "proof" that man should leave flying to the birds, Moore's law has shown little respect for those proponents of the "good ol' days." Our clients want/deserve/need/demand faster, better, and less-expensive legal services. Cloud computing allows our firm to meet these stringent standards... while maintaining a solid profit margin.

This article was first published in ILTA’s June 2011 issue of Peer to Peer titled "Law2020^TM: One Year In." For more information about ILTA, visit their website at http://www.iltanet.org.

Don Barthel is a founding partner of Bradford & Barthel, LLP, as well as B&B's Rating & File Consultation Services. Mr. Barthel is an acknowledged expert regarding the AMA Guides (5th) and the 2005 PDRS. Much of his time is dedicated to teaching these topics to adjusters, human resource directors, employer representatives, attorneys, and physicians throughout California and the United States. Have a PDRS or AMA Guides question? Call Don Barthel at (916) 996-1263 or email him at dbarthel@bradfordbarthel.com.

B&B APPOINTS 'CLIENT RELATIONS' GURU

2011-09-01T16:15:00.000-07:00

by Mark Fletcher, Esq.
B&B's Managing Partner, Mark Fletcher, announced the promotion of Tahmeena I. Ahmed to "Managing Partner, Client Relations." Per Mr. Fletcher, Ms. Ahmed's experience as Managing Attorney of B&B's largest office, located in Tarzana, for the past decade has prepared Ms. Ahmed for her new role: "ensuring that client expectations are consistently met and exceeded on every file, furthering the development of attorney-client communication and rapport, and providing training and developmental opportunities to our clients."

In response, Ms. Ahmed issued the following open letter:

A little secret to be shared—although the title change came as a pleasant surprise—I was venturing into the client relations territory long before the events leading to this exciting promotion. Every "problem solved" has been a lesson in learning.

So what exactly is it that I will do, or more precisely, continue to do, in this position? With your assistance, I hope to increase and improve rapport between you—our invaluable clients—and our attorneys firm-wide who fight for you. Getting you the right person for your job will lead to successful outcomes. Getting you the responses quickly will save you time, money and effort. Working to bring closure to your files is our first and only goal—be it through expeditious settlement or aggressive litigation.

The single most important attribute in an attorney/client relationship—trust—can fast erode without proper, professional handling of issues as they arise. Knowing the law can be as important as knowing your opponent. As the Managing Partner, Client Relations, my responsibility will be to know the inner workings of each client's risk management force so as to permit the proper pairing of the right attorney who specializes in mitigating defense exposure to the types of issues at hand.

Competence, confidence, and caring are the necessary cornerstones of an attorney's success. Please allow me to represent your interests and provide you with the quality representation that you so rightly deserve.

With nearly two decades' experience defending workers' compensation claims, Ms. Ahmed. originally brought her talents to Bradford & Barthel, LLP in 1998, as an Associate, quickly progressed to become the Tarzana office's Managing Attorney in 2000, and a Senior Partner in 2002. During her tenure, the Tarzana office has grown from 2 to 19 attorneys.

Everyone at B&B wishes Tahmeena a hearty congratulations!

Tim Rose to Lead Santa Rosa Office for B&B

2011-09-01T16:10:00.000-07:00

by Chris Stettler, Esq.
Bradford & Barthel, LLP recently announced that, effective July 11, 2011, Timothy Rose, Esq. (Tim) transferred from the firm's highly successful San Diego office to lead the Santa Rosa office. The Santa Rosa office's primary venues include Santa Rosa, San Francisco, and Ukiah.

Mark Fletcher, the firm's Managing Partner, stated he "believes that Tim’s experience in handling complex and unique claims and his aggressive approach in litigation will be an invaluable asset to our clients in Northern California. In addition to his 3 years as an attorney with the firm, Tim also has nearly a decade's experience as a complex claims examiner and alternative dispute resolution specialist for large insurers in California."

With a long history in the insurance and workers' compensation arenas, Tim's unique and aggressive litigation approach makes him a "favorite" attorney with many claims examiners professionals. His legal career has been exclusively dedicated to the defense of workers’ compensation claims. He has particular enthusiasm for issues pertaining to MPN compliance, proper application of the AMA Guides, and fraud.

A graduate of Thomas Jefferson School of Law and San Diego State University. Tim enjoys spending time in the outdoors with his family, sports, and political blogging.

Congratulations, Tim!

The Truth, The Whole Truth and Nothing But The Truth aka B&B Sends Applicant "Directly To Jail"!

2011-09-01T16:05:00.000-07:00

by Jan Metheny, Esq.
The adjuster's call was exactly the kind of call that excites all defense attorneys who enjoy defeating fraud. Luckily, the call came to B&B and—with the excellent teamwork of the adjuster, carrier, SIU department, investigators, District Attorney and B&B—another "bad guy" got his comeuppance.

An accepted claim filed by a long-term employee, the matter was initially suspicious solely because of the timing; the claim was filed shortly prior to the employer, a car dealership, going out of business. As such, the adjuster kept her eyes and ears open for any other evidence of foul play...and that awareness soon proved invaluable. Research uncovered more red flags, including reports the applicant was a long-time motorcycle racer. Investigations confirmed he was continuing to race and we caught our first major break with film at the track.

Time for popcorn and celebration?

Nope! As we viewed the film for the first time, we learned—to our collective dismay— the sub rosa failed to actually show applicant's face!

Had we been checkmated?

No! Our luck held...

As applicant continued to collect TTD, further investigation revealed he owned a carpet cleaning business. This could prove interesting!

In deposition, applicant insisted his motorcycle racing came to an end with his alleged industrial injury.

A big lie!

When asked about his business, he claimed that although he still maintained the business name, he was no longer doing business.

That turned out to be a BIGGER LIE!

Video surveillance showed applicant both driving a van with a sign for his carpet cleaning business and visiting residences with a clipboard doing estimates!

The lies had been fully documented with a long line of detailed questions in deposition and, as such, we believed we had enough for a fraud referral.

It turned out the DA agreed!

Criminal charges were filed on December 21, 2010, including eight felony counts.

Merry Christmas, "Mr. Fraud"!

In short order, "Mr. Fraud" pled guilty to felony fraud. In addition to three years probation, he was ordered to pay restitution!

Blood from a turnip?

Nope! The defense received a cashier's check from applicant for $4,000 the day he pled guilty.

Scoreboard says, "Good guys - 1, Bad Guys - 0"!

Jan Metheny, a Senior Partner and Managing Attorney of the Anaheim office, led the defense of this fraudulent claim. Suspect fraud? Give Mr. Metheny a call at (714) 526-9120.

Elayne Valdez v. Warehouse Demo Services

2011-09-01T16:00:00.000-07:00

by Timothy Rose, Esq.
Elayne Valdez v. Warehouse Demo Services; Zurich North America, adjusted by ESIS, (2011 Cal. Wrk. Comp. LEXIS 55), April 20, 2011

Summary
After treating in an established MPN, applicant's counsel designated a non-MPN treating physician who began to actively treat the applicant. After an issue over temporary disability benefits surfaced, applicant's attorney demanded benefits be provided based on the non-MPN reporting. At trial, the WCJ deferred the non-MPN treatment issue listed by the defendants on the Minutes of Hearing, indicating it was not related to TTD.

After the defense lost the TD issue, they filed for Reconsideration, contending the non-MPN reports were inadmissible, and, therefore, there was no substantial evidence to support the temporary disability award. Reconsideration was granted.¹

Issue #1
If an applicant has improperly obtained medical treatment outside of the employer's MPN, are the reports of the non-MPN treating physician admissible in evidence?

HOLDING: No

Issue #2
Is the inadmissibility of the non-MPN reports applicable to the determination of both treatment and benefits?

HOLDING: Yes (though this was a split decision)

Where unauthorized treatment is obtained outside a validly established and properly noticed MPN, reports from the non-MPN doctors are inadmissible. Defendant is not liable for the cost of the non-MPN reports.

The WCAB has ruled non-MPN physicians do not qualify as "treating physicians" pursuant to Labor Code §4600, nor as medical-legal evaluators under Labor Code §4061/4062. Pursuant to Labor Code §4616.6, such reports are not admissible on medical treatment issues. Since the reports are neither treating physician reports nor validly obtained medical legal reports, they are not admissible.

"...Therefore, the non-MPN physician is not authorized to be a PTP, and accordingly, is not authorized to report or render an opinion on 'medical issues necessary to determine the employee's eligibility for compensation' under section §4061.5 and AD Rule §9785(d) [Cal. Code Regs. Tit. 8, §9785(d)]. Moreover, for disputes involving temporary and/or permanent disability, neither an employee nor an employer is allowed to unilaterally seek a medical opinion to resolve the dispute, but must proceed under §4061 and §4062[1]. Accordingly, the non-MPN reports are not admissible to determine an applicant's eligibility for compensation, e.g., temporary disability indemnity."

What Will Applicant Attorneys Argue?
The start of an applicant's argument over non-MPN care will undoubtedly begin with Labor Code §4600. Labor Code §4600 states: "An employer is obligated to provide all medical treatment 'that is reasonably required to cure or relieve the injured worker from the effects of his or her injury'" [Labor Code §4600(a)]. Labor Code §4600(a) further provides: "In the case of his or her neglect or refusal to reasonably do so, the employer is liable for the reasonable expense incurred by or on behalf of the employee in providing treatment."

Applicant's attorney will undoubtedly rely on the Knight decision, 71 Cal. Comp. Cases 1423, which states defendants' failure to provide the required notices to an employee of rights under the MPN can render the employer liable for reasonable medical care.

Note, these are also the two of the prime arguments used by lien claimants when demanding reimbursement for their liens!

Despite these arguments, the Valdez court has opined that remedies are already available to the applicant, should there be a dispute over reasonable or necessary medical care. There is no need to self-procure or go outside the MPN! Pursuant to §4616.3(c), where an injured worker "disputes either the diagnosis or treatment prescribed by the treating physician," he or she "may seek the opinion of another physician in the [MPN]," and of "a third physician in the [MPN]," if the diagnosis or treatment of the second physician is disputed. The Board further noted even after these remedies had been exhausted, the employee could request an independent medical review of the treatment recommendations as a 4th-level of dispute resolution, via the panel QME or AME process.

After the initial medical evaluation arranged by the employer within the MPN pursuant to section §4616.3(a), "[t]he employer shall notify the employee of his or her right to be treated by a physician of his or her choice," including "the method by which the list of participating providers may be accessed by the employee." [Labor. Code §4616.3(b); Cal. Code Regs., Tit. 8, §9767.6(d).] In addition, AD Rule §9767.6(e) (Cal. Code Regs., tit. 8, §9767.6(e)) provides that "[a]t any point in time after the initial evaluation with a MPN physician, the covered employee may select a physician of his or her choice from within the MPN."

What about obtaining a separate consultation with a private treating physician at the expense of the applicant?

The WCAB did consider whether the employee's right to obtain an evaluation under Labor Code §4605² with his or her own consulting physician rendered the reports admissible. That idea was rejected. Relying on the previously stated reasoning regarding admissibility of reports under Labor Code §4616.6 and §4061/§4062, the majority ruled use of Labor Code §4605 does not generate reports which meet the criterion of admissibility. The WCAB also opined that such reports were not only inadmissible but not the financial obligation of the defendant.

Strategies for Addressing Reports, Liens, Payments of Indemnity Benefits
If we assert that treatment is not valid, we need to provide evidence of submission of MPN notices and posting requirements, which is why it is imperative employers have employees sign documentation acknowledging receipt of the MPN documentation.³

Employers should keep track of MPN documentation in personnel files, and document how the information was distributed to each employee. Declarations regarding service of documents and proper posting of notices can be obtained from human resource contacts and safety supervisors. Administrative Director Regulation §10114.2 allows such declarations to be admitted into evidence where properly served before trial.⁴

The employee's deposition also provides an opportunity to document MPN implementation. It will often be an excellent strategy to confront the employee with a picture of the employer's notices, which he might well remember once shown, as well as any copies of notices. Regardless of the resulting testimony, the defense may still be able to rebut assertions that notices were not properly provided. How many of us have walked into a break room or common area and not seen a posted notice? Hardly ever!

In the event TTD or TPD is demanded based on non-MPN care, first establish that the MPN is proper. If you are certain the MPN is properly established and the information properly disseminated, issue a benefits denial notice arguing the non-MPN care was improperly obtained, inadmissible, and, therefore, cannot support the claim for benefits. While you wait for the inevitable DOR to be filed, collect the information as discussed above.

Liens
If the court in Valdez determined that the defendant is not financially liable for treatment procured outside the MPN or under Labor Code §4605, why should we pay for liens? Why should we not hold the applicant liable? Ultimately, the decision on liens will come down to negotiation and the desire to settle the claim, as well as the wishes of our clients. That being said, we can:

Agree to settle the claim if favorable and argue the liens are inadmissible at lien conferences and trials.
Put the employee/applicant attorney on notice that our clients will withhold sufficient sums from PD to cover the lien claim. Failure to do so may expose our clients to the costs of the lien.
Not resolve the claim with the employer agreeing to hold the applicant harmless on liens.

Finally, see also Scudder v. Verizon California regarding admissibility of non-MPN care. In that case, the WCAB determined applicant's pre-designated treating physician did not refer him to the doctors. Instead, applicant's attorney made the request for treatment to a physician (non-MPN), who in turn made a referral to another non-MPN for a surgical consultation. Always map out from where the referrals for care come!

For questions on this information, please email Tim Rose at trose@bradfordbarthel.com, or Alec Bradford at abradford@bradfordbarthel.com.

. . . . To be continued with Part II, verifying the MPN is established and information is properly served on employees.

Timothy Rose is an attorney in Bradford & Barthel's Santa Rosa office.

¹The court assumed that The MPN was validly established and that all proper notices regarding the MPN were provided to the applicant.

²4605. Nothing contained in this chapter shall limit the right of the employee to provide, at his own expense, a consulting physician or any attending physicians whom he desires.

³For examples of half-page notices that can be provided to clients and to employers, please email Tim Rose at trose@bradfordbarthel.com.

⁴The written affidavit or declaration of any witness may be offered and shall be received into evidence provided that (i) the witness was named in a witness list exchanged either through agreement of the parties or pursuant to an order issued under section 10113.5 (c), (ii) the statement is made by affidavit or by declaration under penalty of perjury, (iii) copies of the statement have been delivered to all opposing parties at least 20 days prior to the hearing, and (iv) no opposing party has, at least 10 days before the hearing, delivered to the proponent of the evidence a written demand that the witness be produced in person to testify at the hearing. The Hearing Officer shall disregard any portion of the statement received pursuant to this regulation that would be inadmissible if the witness were testifying in person, but the inclusion of inadmissible matter does not render the entire statement inadmissible.

Legal Update: Duncan is "NONSENSICAL"

2011-01-01T14:29:00.000-08:00

by David Grant, LLP

On December 10, 2010, the Court of Appeal for the Third District reversed the WCAB holding that a cost of living adjustment (COLA) applies commencing January 1 of the year after the injury. See Allied Waste Industries, Inc. v. SCAB (Rojas).

While this decision is unpublished, it should provide ammunition for the employers as the California Supreme Court prepares to finalize its review of the Duncan case, a Sixth District case in which that DCA held that January 1, 2004, is the effective date for COLA in all cases involving injuries occurring on or after January 1, 2003. The California Supreme Court granted review of the Duncan case on March 24, 2010. (See Duncan v. WCAB (2009) 179 Cal. App. 4th 1009.)

Labor Code §4659, subdivision (c) provides: "For injuries occurring on or after January 1, 2003, an employee who becomes entitled to receive a life pension or total disability indemnity... shall have that payment increased annually commencing on January 1, 2004, and each January 1 thereafter, by an amount equal to the percentage increase in the state average weekly wage (SAWW) as compared to the prior year..."

According to Allied Waste, the definition of the "state average weekly wage" is determinative: the increase applies "for the 12 months ending March 31 of the calendar year preceding the year in which the injury occurred."

The Third District went as far as to say that the Duncan application of Labor Code §4659(c) was "nonsensical." It further stated that: "COLA cannot be calculated by looking at one year and then suddenly jumping back several other years."

The date of injury in Allied Waste was February 18, 2005. The Applicant was, therefore, entitled to a cost of living adjustment (COLA) effective January 1, 2006.

This opinion makes far more sense than the Duncan decision and is certainly less confusing to calculate. (How would you calculate the increase in the cost of living for an injury occurring in 2024 by beginning your COLA adjustment with an effective date of January 1, 2004?)

Hopefully the Supreme Court will follow the Third District's analysis. We predict that is exactly what will happen and strongly recommend that no one consider a settlement based on the "nonsensical" analysis of the 6th DCA.

David Grant is a senior partner of Bradford & Barthel, LLP.

Medical Marijuana and LC §4600 aka Are You HIGH?

2011-01-01T14:27:00.000-08:00

by Don Barthel, Esq.

Medical Marijuana and LC 4600As we all know, in 1996 California's Proposition 215 was the first statewide medical marijuana initiative to pass, also known as the Compassionate Use Act of 1996. Added to the Health and Safety Code, this law permits patients with a valid doctor's recommendation to possess and cultivate marijuana for personal medical use.

How does this legalization of the possession/cultivation of medical reefer impact your duty under Labor Code §4600(a) to provide all treatment that is "reasonably required to cure or relieve the injured worker from the effects of his or her injury..."?

Put more succinctly, if the PTP writes a prescription for pot, are you obligated to help the applicant get high?

Heck no!

Pretty emphatic answer, huh? B&B's position is based on (a) case law, (b) California statute, and (c) federal law...so, yes, we're emphatic!

The research leading to this article was inspired by an email from a client who wrote:

"I heard about a case where a workers' compensation judge punted the decision of whether medical marijuana was needed per 4660 to a QME."

My response? I hope and pray this is another "urban legend", but I have my doubts!¹

Why You Ain't Paying To Get High: Reason 1Submitting to a doctor (QME or otherwise) as to whether Panama Red is "reasonable and necessary" per Labor Code §4600 COMPLETELY misses the point! While California may think it's fine for folks to have pot to help what ills them, Uncle Sam has not signed onto this deal. While California might not come after you for buying ganja for injured workers, the federal government has made no such promises!

The California Supreme Court, in Ross v. RagingWire Telecommunications, Inc, (2008) 42 Cal. 4th 920 recently discussed medicinal marijuana in a Fair Employment & Housing (FEHA) case that, while not directly on point, is the best and most authoritative position we have on this issue.

The "high" court (pun intended), noted that the Compassionate Use Act was to keep medicinal pot users out of jail for state law violations. It did not (and could not) impact federal law. It did not impact—expressly or implicitly—employment law. Thus, employers need not accommodate medicinal pot use—even if it is "legal" under state law. Thus employers CAN—without violating FEHA and/or the Compassionate Use Act, fire employees who test positive for pot.

All this appears to be directly applicable to workers' compensation law. The Compassionate Use Act doesn't make it legal—under federal law—for employers to provide pot to workers' compensation applicants who want it, even if they do have a prescription, AND, perhaps more importantly, even if a doctor and/or WJC says it is "reasonable" and/or "necessary" per Labor Code §4600.

The Supreme Court noted:

The Compassionate Use Act of 1996...gives a person who uses marijuana for medical purposes on a physician's recommendation a defense to certain state criminal charges involving the drug, including possession... Federal law, however, continues to prohibit the drug's possession, even by medical users....

...Plaintiff's position might have merit if the Compassionate Use Act gave marijuana the same status as any legal prescription drug. But the act's effect is not so broad. No state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law...Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and obligations of employers and employees...

Marijuana...remains illegal under federal law because of its "high potential for abuse," its lack of any "currently accepted medical use in treatment in the United States," and its "lack of accepted safety for use…under medical supervision."

...California's voters had no power to change federal law...

Why You Ain't Paying To Get High: Reason 2Reason #2 really is the simplest and most direct answer: California law says you don't have to pay!

Health & Safety Code 11362.785(d) provides:

Nothing in this article shall require a governmental, private, or any other health insurance provider or health care service plan to be liable for any claim for reimbursement for the medical use of marijuana.

Nancy Reagan was right!

Nancy Reagan told a young school girl to "Just Say No" to drugs.² Turns out Nancy was right! Next time some workers' compensation doctor writes script for Maui Wowi, JUST SAY NO!

Don Barthel is a Founding Partner of Bradford & Barthel, LLP, as well as B&B's Rating & File Consultation Services. Mr. Barthel is an acknowledged expert regarding the AMA Guides (5th) and the 2005 PDRS. Much of his time is dedicated to teaching these topics to adjusters, human resource directors, employer representatives, attorneys, and physicians throughout California and the United States. Have a PDRS or AMA Guides question? Call Don Barthel at (916) 996-1263 or email him at dbarthel@bradfordbarthel.com.

¹ Anyone personally familiar with such a case? Please forward any WCAB Orders to my attention at dbarthel@bradfordbarthel.com.

²Ronald Reagan's "Remarks at the Nancy Reagan Drug Abuse Center Benefit Dinner" in Los Angeles, California, January 4, 1989, memorialized the following: "It wasn't too far from here—well, in Oakland—where a schoolchild in an audience Nancy was addressing stood up and asked what she and her friends should say when someone offered them drugs. And Nancy said, `Just say no.' And within a few months thousands of Just Say No clubs had sprung up in schools around the country. At last count there are 12,000 of them in our schools."

"Illegals’" Entitlement to Voucher/PD Increase...To Pay or Not to Pay?

2011-01-01T14:25:00.000-08:00

by Don Barthel, Esq.

The workers' comp claim you're handling is accepted and, as you conduct your discovery, you learn that the injured worker cannot demonstrate that he/she is legally entitled to work in the U.S., or—at deposition —refuses to answer questions pertaining to "legal status." Are these facts relevant in terms of vouchers and the 15 percent PD "bump down"?

You bet!

If handled correctly, you should not be liable for a voucher! If handled correctly, you should be able to obtain a 15 percent PD "bump down."

Statutes & RegsThe relevant codes and regulations (always exciting reading) are:

Labor Code § 4658(d)(1) This subdivision shall apply to injuries occurring on or after the effective date of the revised permanent disability schedule adopted by the administrative director pursuant to Section 46...

(3) (A) If, within 60 days of a disability becoming permanent and stationary, an employer offers the injured employee regular work, modified work, or alternative work, in the form and manner prescribed by the administrative director, for a period of at least 12 months, and regardless of whether the injured employee accepts or rejects the offer, each disability payment remaining to be paid to the injured employee from the date the offer was made shall be paid in accordance with paragraph (1) and decreased by 15 percent…

Regulation 10117. Offer of Work; Adjustment of Permanent Disability Payments. (a)(3)…"employer shall use form DWC-AD 10133.53 (Section 10133.53) to offer modified or alternative work, or form DWC-AD 10118 (Section 10118) to offer regular work.

Labor Code 4658.6. The employer shall not be liable for the supplemental job displacement benefit if the employer meets either of the following conditions:
(a) Within 30 days of the termination of temporary disability indemnity payments, the employer offers, and the employee rejects, or fails to accept, in the form and manner prescribed by the administrative director, modified work, accommodating the employee's work restrictions, lasting at least 12 months.
(b) Within 30 days of the termination of temporary disability indemnity payments, the employer offers, and the employee rejects, or fails to accept, in the form and manner prescribed by the administrative director, alternative work meeting all of the following conditions...

The Case Law: Del Taco v. WCAB
Essential to the argument discussed herein is the 4/20/00 decision, Del Taco v. WCAB, 79 Cal. App. 4th 1437, 65 CCC 342. If you've not read this decision, I strongly recommend you do so. In Del Taco, the employer provided modified work to Applicant, but terminated the employment when it was discovered the Applicant couldn't work legally in the US. In response, the worker claimed VR benefits. After the WCAB awarded VR benefits, the Court of Appeal reversed, holding: "an injured employee is not entitled to vocational rehabilitation benefits where the employee is unable to return to work solely because of immigration status." (Underline added.)

Some of the more important observations by the Del Taco court include:

"Worker's immigration status does not affect his entitlement to [TD] payments [because]…worker is unable to work as a result of the work related injury and is entitled to disability benefits wherever he is residing, legally or illegally."

"[VR] services are available only to qualified injured workers…who meet[] both…requirements: '(1) The employee's expected [PD]…permanently precludes, or is likely to preclude, the employee from engaging in his or her usual occupation or the position in which he or she was engaged in at the time of…injury, hereinafter referred to as 'medical eligibility' (2) The employee can reasonably be expected to return to suitable gainful employment through the provision of [VR] benefits."

"[I]t is not worker's disability that precludes him from working at Del Taco. It is his immigration status."

Citing the U.S. Constitution, the Court agreed with Del Taco that the WCAB's VR award deprived the employer of equal protection. "[Del Taco] meritoriously argues that it will suffer what amounts to a potential $16,000 penalty only because the worker cannot lawfully perform modified work…..The WCAB's [VR] award relies on an interpretation of the statutes that is irrational and arbitrary. Here, a legal worker would not be awarded job training because Del Taco's offer of modified work precludes such. The WCAB's award provides an 'illegal worker' more extensive and costly services than would be provided to a similarly situated 'legal worker.' This deprives Del Taco of equal protection of the laws."

Major Points
POINT ONE
"Illegal workers" are generally entitled to any/all workers' compensation benefits:
"an injured employee is not entitled to vocational rehabilitation benefits where the employee is unable to return to work solely because of immigration status"

POINT TWO
Although Del Taco's holding is limited to "vocational rehabilitation benefits," its reasoning is equally applicable to any workers' compensation benefit that hinges on Applicant's "immigration status". Del Taco's holding is based on the Equal Protection Clause: "Here, a legal worker would not be awarded job training because Del Taco's offer of modified work precludes such. The WCAB's award provides an 'illegal worker' more extensive and costly services than would be provided to a similarly situated 'legal worker.' This deprives Del Taco of equal protection of the laws."

While our issues (vouchers and the 15 percent PD "bump down") technically do not involve "vocational rehabilitation benefits", they do implicate Equal Protection AND—IF WE APPROACH THIS CORRECTLY—the employer is deprived of the opportunity to provide permanent modified alternative work and, thus, deprived of the chance to avoid providing a voucher and obtaining the 15% PD "bump down", because the "employee is unable to return to work solely because of immigration status."

Note the employers in Del Taco did everything they could legally do: "Here, Del Taco provided modified work to worker and after he commenced the modified work, Del Taco terminated the employment because it discovered that he was not legally permitted to work in the United States." This is particularly important for potential audit/penalty issues and suspect that an undocumented worker would be eligible for a SJDB voucher UNLESS the employer demonstrates it would have medically appropriate work for the employee absent his/her undocumented status.

To make such a demonstration, the employer can make a conditional offer of employment; the condition would be that the employee must present documents showing a legal right to work in the U.S. within the statutory time frame allowed for a response to the work offer. This is not "discriminatory"; we all have to present proof of citizenship or legal status at the time of hire. In this way the employer can demonstrate that it would and could make work available "but for the applicant's undocumented status."

Why Not Just Refuse to Provide Vouchers and Unilaterally Asserting the 15 Percent PD "Bump Down"?

If the DWC did not enforce the procedural "offer" requirements, employers could simply say they had work available in all cases (without proving it);
Per Allan Leno, of Leno & Associates, "the DWC is taking a very literal interpretation of L.C. 3 4658(d). If the employer does not offer a job (regular, modified, or alternative) to the employee with ratable PD, the PD offset will apply. It makes no difference whether the employee intends to return to work or retire. The Labor Code anticipates that work would be available and the only way for the employer to "prove" availability is to make an offer via a DWC AD 10118 or 10133.53";
When an undocumented worker receives the conditional offer, he/she will—99 percent of the time—not show up on the appointed start date and the issue will simply fall by the wayside;
Create a paper trail (aka "evidence") that the employers have done everything they can (like Del Taco) and that it is the undocumented worker's "fault" he/she hasn't been returned to work;
If Applicant fights the issue, DWC-AD 1-133.53's "Notice Of Offer Of Modified Or Alternative Work", page 2, includes an area where an injured worker can refuse to accept to be returned to U&C or a modified position. I would fully expect that, if they're gunning for a fight, they will raise OTHER REASONS they can't accept the offered position (physical restrictions, geographical locations, the offer is not in "good faith", etc). Best to have these arguments raised/documented before MSC;
Fully expect WCJ/WCAB will argue the defense estopped and/or have otherwise somehow waived the "undocumented" argument by failing to go through the required steps of timely offering modified or alternative work options to injured worker.

Conclusion
Applicable Labor Code provisions, regulations, and case law strongly support the proposition that—in cases where the injured worker (IW) is not legally entitled to work in the US—we can successfully defend against providing vouchers, and obtain the 15 percent PD decrease. However, as a prerequisite to such arguments, it is essential that we coordinate our efforts to ensure the requisite RTW or Mod/Alt Duty forms issue [See DWC-AD 10133.53 (Section 10133.53) and DWC-AD 10118 (Section 10118)] issue in timely fashion.

Don Barthel is a Founding Partner of Bradford & Barthel, LLP, as well as B&B's Rating & File Consultation Services. Mr. Barthel is an acknowledged expert regarding the AMA Guides (5th) and the 2005 PDRS. Much of his time is dedicated to teaching these topics to adjusters, human resource directors, employer representatives, attorneys, and physicians throughout California and the United States. Have a PDRS or AMA Guides question? Call Don Barthel at (916) 996-1263 or email him at dbarthel@bradfordbarthel.com.

Uncle Sam Wants You!

2011-01-01T14:22:00.000-08:00

by Alec Bradford, Esq.

What Are You, Adjustor or Terrorist Hunter?The surprising answer, according to Uncle Sam, is: BOTH!¹

Yes, consider yourself drafted to play a role in the defense of America.

Now, you may be asking, how can I be both?² Turns out national defense is not all Kiefer Sutherland style kicking in of doors and raiding terrorist safehouses!

Consider yourself officially introduced to the Office of Foreign Assets Control (OFAC), the wing of the Treasury Department charged with administering and enforcing trade sanctions.³ OFAC dictates who you can and cannot do with business with. Not surprising, Iran and North Korea are almost entirely off limits⁴, along with such groups as narcotics traffickers and terrorist organizations.

Due to the ever increasing amount of international trade, coupled with the relative ease of moving funds across borders, the U.S. is turning to banks and insurance companies⁵ to cut off funding sources. This places you directly on the frontline⁶ in the war on terror. Yes, you have been called upon (aka DRAFTED) to protect your country from foreign enemies.

Patriotic? Great...you've got your inspiration. Not feeling so patriotic? No matter! Uncle Sam has also raised the stakes slightly by imposing strict liability on any U.S. person who engages in the defined prohibited transactions. For insurers, this means that any transaction that qualifies as a prohibited transaction can result in fines of millions of dollars. Paying a death benefit to someone out of country? Be very careful!

What You Can Do to Defend the U.S. (and Avoid Steep Sanctions)!First, check all policies to ensure you are not insuring any prohibited persons or groups. Don't have a list of "prohibited persons/groups" at your desk? Here is your link.

Now you've got the list!

Consider designating a compliance officer to make certain you are not violating any federal provisions. Circulate a written compliance program and ensure that it is followed. That way if a mistake is made, you can point to your program and training as significant mitigating factors. Good faith efforts may go a long way in reducing potential penalties. Also, watch out for blocked financial institutions, such as the Bank of Khartoum, as the company issuing payment to such an organization will likely not get those funds returned and may be subject to civil penalties simply for initiating a payment to a bank that has been declared a Specially Designated National of Sudan.

Every insurance policy we have reviewed includes an exclusion clause providing that proscribed beneficiaries or excluded transactions will not be compensated. Usually the policy states words to the effect that "whenever coverage provided by this policy would be in violation of U.S. export controls or trade sanctions, such coverage is null and void."

In cases where applicable state insurance law and the OFAC policy conflict, bet HEAVILY on the OFAC and follow the federal dictate...ALWAYS! Whilst the OFAC has thus far refused to declare whether they believe OFAC rules pre-empt state law, the official response has been something along the lines of:

"We operate under the emergency powers of the President"
"We implement federal statutes with names like the 'Trading with the Enemies Act'"
"You do not want to mess with us"

If you do discover that an employee or beneficiary may receive—or, GASP, has already been given benefits, notify the OFAC compliance office. They will work out the specifics of the case and take it from there. Any funds that would otherwise go to a blocked individual should be placed in an interest-bearing account established on the books of a U.S. financial institution. Blocked policies and policy payments must be reported within 10 days to OFAC's Compliance Program Division by fax at (202) 622-2426. This can occur, for instance, where you are insuring an employer and don't have the named individuals on the policy...or if you discover somewhere down the line that an injured worker is actually a Cuban national.

Keep these simple rules in mind as you perform your work as a soldier in the War on Terror. You have an important role to play in keeping America safe...so get out there and do your patriotic duty for Uncle Sam!

Have any questions about the Office of Foreign Assets Control, the Treasury Department or your role in the War on Terror? Call Alec Bradford at (619) 990-2897 or email him at abradford@bradfordbarthel.com.

Alec Bradford, a Southern California native, received his Bachelor of Science in Political Science in 2007 from California State Polytechnical Institute at Pomona. He received his Juris Doctorate and graduated Cum Laude in 2010 from Thomas Jefferson School of Law in San Diego. While at Thomas Jefferson School of Law he received the Witkin Award for Academic Excellence, CALI Excellence for the Future Award, and the Jefferson Medal for Chinese Legal System & Recent Reforms for the 2009 China study-abroad program. In Spring, 2010, he received the same awards for European Union Law. He is currently working at the San Diego office of Bradford and Barthel and enjoys sports, including surfing, sailing, and skiing. He also loves traveling.

¹ Yes, really!

² You're probably also asking, where do I sign-up for hazard pay? That answer ain't surprising: you don't!

³ Don't stop reading! You're probably certain that there is no reason you should care about this and that is has nothing to do with you or terrorist hunting. If that's your hunch, you are WRONG!

⁴ And you thought Ventura was tough! Aren't you glad your workers' compensation policy doesn't extend to Iran?

⁵ Yes, you!

⁶ …metaphorically speaking, of course!

100 Percent Trouble: The Expensive Future of PD

2011-01-01T14:18:00.000-08:00

by Don Barthel, Esq.

Disgusted by physicians' misapplication of the AMA Guides for fun and profit? Angered by the flippant manner in which many doctors regularly find a "more accurate" impairment percentage and cover their tracks by citing Almaraz/Guzman? Outraged by the fact that every time you turn around you're hearing from a so-called "DFEC expert" who wants to rebut the DFEC on your dime?

Think you've seen enough PD shenanigans for a lifetime of adjusting?

Think again!

The PD times are a'changing¹, and they're getting worse!

The WCAB has paved the way for Applicants to get 100 percent PD awards:

(a) without being 100 percent per the AMA Guides and 2005 Permanent Disability Rating Schedule,
(b) without rebutting the AMA Guides via Almaraz/Guzman, and
(c) without retaining the services of a "DFEC expert." And, via this novel approach, once the 100 percent is awarded, you do not get Labor Code §4664 apportionment...even if there was a prior PD award for the very same
body part(s)!

The Labor CodeWhere does all this trouble come from?

Labor Code §4662!²

Most of us think of Labor Code §4662 as that "statutory exception" law that provides for 100 percent PD in four-and only four-scenarios:

(a) Loss of both eyes or the sight thereof.
(b) Loss of both hands or the use thereof.
(c) An injury resulting in a practically total paralysis.
(d) An injury to the brain resulting in incurable mental incapacity or insanity.

If limited to these four scenarios, LC §4662's applicability is limited to a very (VERY) small number of cases. But the WCAB has recently expanded LC §4662's conclusive presumption of total disability to far more cases than most of us had foreseen.

How?

The WCAB has begun to focus on the very last sentence of LC §4660: "In all other cases, permanent total disability shall be determined in accordance with the fact."

Let's break that down:

(a) "all other cases" (that's all of 'em!)
(b) "total disability" (100 percent PD...meaning millions of dollars at issue!)
(c) "in accordance with the fact" (meaning making it up as we go along!)

Be afraid...very afraid!

The Case LawThis 100 percent expansion appears to have gotten legs in Baldrige v. Swinerton, a July, 2010 panel decision. In that case, Applicant, a 50-year-old construction laborer, underwent a low back fusion. The Ortho AME rated 70 percent PD. The Psych AME rated 33 percent PD. Combined this amounted to 80 percent PD.

So how did 80 percent go to 100 percent PD?

Not via Almaraz/Guzman.

Not via Ogilvie.

Rather, Applicant did it the old fashioned way...following the likes of LeBoeuf.³ Testimony was presented that there were "only four or five days each month when [Applicant is] not in excruciating pain" and "three or four days each month [Applicant] must spend the whole day inside the house". This testimony, taken in conjunction with the Ortho AME's opinion that the Applicant was limited to "sedentary work" and "must get up and move...every 15 or 30 minutes", along with the Psych AME's opinion that "chronic pain...removed him from the work force" all coalesced for a 100 percent PD award. Of course, in true LeBoeuf fashion, this evidence was relied upon by the Agreed Vocational Evaluator (AVE) Scott Simon, who opined (a) Applicant was "not...feasible for...on-the-job training", (b) "psychiatric symptoms would interfere with [Applicant's] ability to learn", and (c) Applicant was "unable to work".

Ain't LeBoeuf Dead? I know what you're thinking! LeBoeuf is "old school", right? After all, LeBoeuf indicated that "[a] permanent disability rating should reflect as accurately as possible an injured employee's diminished ability to compete in the open labor market. The fact that a worker has been precluded from vocational retraining is a significant factor to be taken into account in evaluating his or her potential employability." (Underline and bold added) Reference to the "ability to compete in the open labor market" in Labor Code §4660 (the labor code defining permanent disability), was removed via SB 899 and replaced with the phrase "diminished future earning capacity".

Even though the applicable labor code has been rewritten, the WCAB doesn't appear to believe that makes any difference. Thus, LeBoeuf comes to haunt us from the grave. Says the WCAB, LeBoeuf "indirectly supports the principle that an employee's permanent disability rating may be affected where the...injury causes a total loss of earning capacity. That is, a complete loss of future earning capacity is analogous to a complete inability to compete in the open labor market."

Huh?

Words To FearLet's interpret what the WCAB is saying... ⁴

The Baldrige commissioners continued:

"[T]he LeBoeuf analysis and Labor Code §4662—which allows applicant to establish permanent total disability in accordance with the facts...is still appropriate for determinations of permanent total disability. This approach allows the injured worked to establish permanent total disability when it is shown that applicant has lost the ability to work in the open labor market and/or has 100 percent loss of future earning capacity even though the impairment rating under the AMA Guides is less than 100 percent."

What's Wrong With the WCAB's Analysis? Where did the WCAB go wrong?

Simple. Inability to "compete in the open labor market" does not mean complete loss of "future earning capacity". (Hint, hint...that's why the legislature changed the words!!!)

Don't take my (logical) word for it. LC §4660, as amended by SB 899, provides in pertinent part:

"...an employee's diminished future earning capacity shall be a numeric formula based on empirical data and findings that aggregate the average percentage of long-term loss of income resulting from each type of injury for similarly situated employees. The administrative director shall formulate the adjusted rating schedule based on empirical data and findings from the Evaluation of California's Permanent Disability Rating Schedule, Interim Report (December 2003), prepared by the RAND Institute..."

Interestingly, in equating DFEC with loss of ability to compete in the open labor market, the WCAB wholly ignores the above language!

If You Think That's The Worst Of It... Don't like this bad news?

Don't think it can get worse?

Think again!

LC §4664 apportionment can't help you in a 100 percent PD case this is based on §4662! In other words, even if Applicant had a recent prior award of PD for the very same body part(s), the defense does not—at the present time—get to subtract out the earlier award.

Why not?

After all, doesn't LC §4664 say "[t]he employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment"?

Yes, it does!

And doesn't LC §4664 say, "[i]f the applicant has received a prior award of permanent disability, it shall be conclusively presumed that the prior permanent disability exists at the time of any subsequent industrial injury"?

Yes, it does!

So why doesn't the defense get to subtract the "prior award of permanent disability" that is "conclusively presumed" to exist?

Answer…Labor Code §4664(c)(1):

(c) (1) The accumulation of all permanent disability awards issued with respect to any one region of the body in favor of one individual employee shall not exceed 100 percent over the employee's lifetime unless the employee's injury or illness is conclusively presumed to be total in character pursuant to §4662.

Yep! The fact that the WCAB is creating this 100 percent PD award out of LC §4662 allows the matter to fall outside of the general §4664 subtraction rules.

Practice Pointers—Where Did The Defense Go Wrong?
Analysis of the Baldrige case provides many insights as to how you can improve your defense when facing a potential new-fangled LeBoeuf-type case.

A. Avoid AMEsBaldrige had not one, but two AMEs! Not happy with your AME? You're probably going to live with whatever the AME does (or, perhaps more accurately, does to you!). When the WCAB is faced with a party complaining about what an AME has done, the Commissioners retort is almost always the same:

"[W]e begin by presuming that the AME has been chosen by the parties because of his expertise and neutrality. Therefore his opinion should ordinarily be followed...(Power v. WCAB (1986) 179 Cal. App. 3d 775 (51 CCC 1141)"

Want to avoid this headache? Avoid AMEs (and go with PTPs and PQMEs who, by the way, are more likely to apply the AMA Guides correctly).⁵

B. Agreed Vocation Evaluator
The parties in Baldrige agreed to an Agreed Vocational Evaluator, Mr. Scott Simon. In so doing, the defense stipulated to the expertise of the AVE...an AVE that Applicant's counsel thought would likely provide the evidence his client needed.

Why? Or, rather, why not use your own Vocational Expert?⁶

Agree to an AVE and you will
(a) pay for the evaluation,
(b) pay for the reports,
(c) pay for the testimony, and
(d) pay for increased PD.

Here's why...

LC §5811(a) says that "...in all proceedings...before the appeals board, costs between the parties may be allowed by the appeals board." Note: "may" is discretionary, not mandatory. Thus, when Applicant's counsel retains his/her own expert, you do have arguments against paying the bill. But once you've agreed to Applicant's expert by making him/her an AVE, your defenses to the resulting costs have largely been gutted.

C. Case Law
The defense in Baldrige attempted to cite Hertz v. Aguilar, and was—appropriately—chastised for their efforts.

The reason?

California Supreme Court dismissed Applicant's Petition for Review in Hertz Corporation v. W.C.A.B. (Aguilar) (2008) 73 Cal. Comp. Cases 1653, back in May, 2010. In that case, the Sixth District Court of Appeal—citing LC 4664(a)⁸—had held that the employer was not liable for increased permanent disability benefits when Applicant's inability to participate in vocational rehabilitation was due to non-industrial causes (such as his inability to read English, poor education, etc), and not due to his work-related injury. Interestingly, the Supreme Court had originally granted Applicant's petition and, thereafter, ordered it dismissed. Thus, even though the original Court of Appeal decision had been certified for publication, the Supreme Court's actions rendered it unpublished and not citeable.⁹

What should the defense do in such a situation?

Cite Labor Code §4664(a)!

While Aguilar was a wonderful case that had interpreted Labor Code §4664(a) in a manner very beneficial to the defense, that case cannot now be cited as precedent. Labor Code §4664(a) nevertheless remains unchanged and a wholly viable argument in favor of apportionment...apportionment, if not via LC §4664, then apportionment through LC §4663!

Conclusion
Got a case reserved for 60, 70, or 80 percent, but certain it won't hit 100% given the conservative nature of the AMA Guides and the 2005 PDRS?

Think again!

Review those reserves and prepare to go to battle...without reliance on an AME and/or AVE!

Don Barthel is a Founding Partner of Bradford & Barthel, LLP, as well as B&B's Rating & File Consultation Services. Mr. Barthel is an acknowledged expert regarding the AMA Guides (5th) and the 2005 PDRS. Much of his time is dedicated to teaching these topics to adjusters, human resource directors, employer representatives, attorneys, and physicians throughout California and the United States. Have a PDRS or AMA Guides question? Call Don Barthel at (916) 996-1263 or email him at dbarthel@bradfordbarthel.com.

¹Apologies to Bob Dylan

²"4662. Any of the following permanent disabilities shall be conclusively presumed to be total in character: (a) Loss of both eyes or the sight thereof. (b) Loss of both hands or the use thereof. (c) An injury resulting in a practically total paralysis. (d) An injury to the brain resulting in incurable mental incapacity or insanity. In all other cases, permanent total disability shall be determined in accordance with the fact."

³LeBoeuf v. WCAB (1983) 34 Cal. 3d 234 [193 Cal.Rptr. 547; 666 P.2d 989] held that where an injured worker is found to be less than totally disabled and the Bureau of Rehabilitation (Bureau) subsequently finds the worker not qualified for rehabilitation benefits, this finding constitutes "good cause" to reopen the permanent disability proceeding.

⁴Even though the California Legislature largely rewrote LC §4660 and changed the very language of that statute that LeBoeuf relied on, nothing has changed!?!?

⁵For further details on why the defense should avoid AMEs, see "The AME Trap (aka Why Agreed Medical Examiners Make Me Disagreeable" at http://www.bradfordbarthel.com/blog/V5N4/One-1.htm.

⁶I simply have no good answer for this rhetorical question!

⁷Some of these arguments including challenging the so-called expert's expertise (See Costa II) and citing LC 4621(a).

⁸4664(a) provides: "The employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment."

⁹See Cal. Rules of Ct., rule 8.528(b)(3) and 8.1115(a).

Daniel Micheal Dailey named Managing Attorney of the Sacramento Office

2011-01-01T14:15:00.000-08:00

by Mark Fletcher, Esq.

It is my pleasure to announce that Daniel Michael Dailey is our new Managing Attorney for the Sacramento office. He brings with him a multitude of skills, including administrative strategies, oustanding negotiation talents, and an undying commitment to B&B's clients.

Mark Fletcher is Managing Attorney of Bradford & Barthel, LLP.

Guzman & 6th DCA: WCAB Rubberstamp or Limitations on Misapplying the Guides?

2010-07-01T14:01:00.000-07:00

by Don Barthel, LLP

Last month the 6th DCA handed down the latest—and most authoritative—word on rebutting the AMA Guides. While the Court of Appeal agreed with the WCAB's Almaraz/Guzman II determination that (a) the AMA Guides is rebuttable, and (b) physicians may, in certain circumstances, apply alternative chapters, methods and tables, the DCA signaled that such an approach should be the exception rather than the rule.

"Give Me a [Conservative] Sign"
During the past year and a half in the post-Almaraz/Guzman world, we've seen attempts to apply alternative chapters, tables and methods in even the most mundane cases. Indeed, the more "vanilla" the case (back strain, for example), the lower the WPI produced by a strict application of the Guides...and, of course, the greater the incentive for physicians to creatively apply alternative chapters and methods.

No longer!

Rather than calling for an "Almaraz/Guzman" approach in all cases deemed unfair, inequitable, or otherwise lacking in the physician's opinion, the DCA underscored that its holding was necessary to "accommodate...complex or extraordinary cases."

Want an Almaraz/Guzman rebuttal?

First step: explain why your back strain, carpal tunnel or meniscectomy qualifies as "complex or extraordinary"!

Attention Doctors: Chapter Shop At Your Own Peril
Until now, physicians throughout California have rifled through the Guides to find a chapter, table or method with impairment numbers they deem "more accurate". Given Almaraz/Guzman II's apparently unrestricted invitation to use "any chapter, table or method," it should come as no surprise that doctors up and down the state have been all too happy to apply hernia and cardiovascular chapters to back spasms and carpal tunnel.

Does this make sense?

Of course not. It requires no "MD" at the end of your name to conclude that the back has very little to do with the median nerve! Further, the AMA Guides is clear: each chapter begins with instructions as to the narrowly circumscribed arena of injuries to be evaluated by the proceeding sections. Chapter 15, "The Spine" chapter, for example, instructs that it "provides criteria for evaluating permanent impairments of the spine", which "consists of four regions: the cervical, thoracic, lumbar and sacral vertebrae..." (p. 373, AMA Guides). Chapter 6, "The Digestive System"—which includes the often-misused hernia table—explains that it "provides criteria for evaluating permanent impairment of the digestive system..." (p. 117, AMA Guides).

Given the foregoing, how can a physician justify using a chapter developed for the evaluation of the digestive system to measure impairment to the spine?

Great question...and the 6th DCA thinks the physician will have a (very) tough time defending such an approach:

Given the comprehensiveness and precision attendant in the chapters pertaining to each system, in most cases a WCJ will credit ratings based strictly on the chapter devoted to the body part, region, or system affected." (p. 20, italics added)

Why will the WCJ be required to rule in favor of a strict application of the Guides? Mixing and matching non-traditional chapters is likely to result in an insubstantial, irrelevant impairment analysis:

If the physician expresses the opinion that the chapter applicable to a particular kind of injury does not describe the employee's injury, but all other chapters address completely different biological systems or body parts, it would likely be difficult to demonstrate that that alternative chapter supplies, substantial, relevant evidence of an alternative WPI rating. (p. 23-24, italics added)

Because I Said So!
How many times have you heard a doctor justify his/her determination by way of the physician equivalent, "Because I said so"? Again, how many times have you heard doctors justify an indefensible position by referencing their "years of experience in the industry and clinical exam"? And, since Almaraz/Guzman I, how often has this response been supplemented with the doctor's own "clinical judgment"?

While the 6th DCA applauds and supports physicians relying on, in part, their "clinical judgment" and "expertise", the Court does not suggest that such qualities are magical, and thus, once chanted, protect the doctor's analysis from further scrutiny. Rather, while a physician's explanation for his/her departure from a strict application of the Guides "necessarily takes into account the physician's skill, knowledge, and experience," that is not the end of the inquiry. The physician's explanation...

'necessarily [also] takes into account...other considerations unique to the injury at issue', including 'standard texts or recent research data as a basis for his or her medical conclusions... [W]ithout a complete presentation of the supporting evidence on which the physician has based his or her clinical judgment, the [WCJ] may not be able to determine whether a party has successfully rebutted the scheduled rating..." (p. 24)

In short, doctors "show your work" and do not hide beyond "clinical judgment/expertise" incantations.

To The Future and Beyond
As the defense prepares to appeal Guzman to the California Supreme Court, the companion matter, Almaraz, continues to sit with at 5th DCA. Presumably the 6th DCA's publishing of Guzman has been awaited by the 5th District, who will now take action. If a decision in Almaraz issues that is contrary to Guzman, the "split" between the districts would dramatically increase the chances of the California Supreme Court weighing in on the matter.

A split, however, is not a prerequisite to the high court hearing Almaraz and/or Guzman. For example, in March of this year the court agreed to hear an appeal from the 6th DCA in Duncan v WCAB (11/25/09), the case that determined that cost of living adjustments (COLAs) in life pension and 100 percent PD cases are, per Labor Code §4659(c), added starting 1/1/04 and every January 1 thereafter. The Petition for Review was granted in that case despite the lack— at the time—of disagreement between the District Courts of Appeal on the COLA issue.

How Far Away Is "The Future"?
At the present time, Almaraz/Guzman II and the 6th DCA's Guzman are the law of the land. If the California Supreme Court weighs in, do not expect a final answer for at least two years.

In the meantime?

Prepare to fight the good fight...the more you know about Guzman and the Guides, the more likely you can defeat CAAA's attempts to misapply the Guides for fun and profit!

Don Barthel is a founding partner of Bradford & Barthel, LLP, as well as B&B's Rating & File Consultation Services. Mr. Barthel is an acknowledged expert regarding the AMA Guides (5th) and the 2005 PDRS. Much of his time is dedicated to teaching these topics to adjusters, human resource directors, employer representatives, attorneys, and physicians throughout California and the United States. Have a PDRS or AMA Guides question? Call Don Barthel at (916) 996-1263 or email him at dbarthel@bradfordbarthel.com.

Intl Awards Salute B&B's Tech Savvy

2010-07-01T13:53:00.000-07:00

by Don Barthel, Esq.

The Envelope Please.

The red carpet was rolled out and leaders in legal technology from around the world came to Las Vegas last week to participate in the International Legal Technology Association's (ILTA)¹ 2010 "Strategic Unity" conference and to learn who would receive the industry's highest honors and accolades. When the envelopes were opened and the winners announced, Bradford & Barthel, LLP (B&B) had won...TWICE!

ILTA presented both B&B and the firm's Director of Knowledge Management, Eric Hunter, with ILTA's 2010 Distinguished Peer Awards. Competing with huge international firms employing hundreds—and even thousands —of employees, B&B and Eric Hunter managed to edge out the competition to receive the "Innovative Member of the Year" prize and the "Knowledge Management Champion of the Year" title.

The "Innovative Member" and "Knowledge Management Champion" awards recognize B&B's evolving Cloud-hosted collaboration platform. This cutting-edge approach expedites communication, as well as search and knowledge-sharing both internally and with our clients, all at a fraction of the cost traditionally incurred. This has led to a culture of change at B&B. The firm employs Google Apps as the Cloud-hosted collaboration platform to drive these changes. Mr. Hunter's award represents the culmination of hundreds of hours of work researching, implementing, and championing B&B's novel Cloud-hosted collaboration approach to knowledge management.

"On behalf of ILTA, I’d like to congratulate this year’s Distinguished Peer Award winners," said Randi Mayes, executive director of ILTA. "We are proud to recognize exceptional technology projects and the champions of those projects, and I applaud and celebrate our winners for sharing their successes."

Can Cloud-Hosted Collaboration Cut Costs, Streamline Processes, and Bridge Both People and Information?

Yes!

B&B's Managing Partner, Mark Fletcher, noted that, "Mr. Hunter's Knowledge Management Department has created a culture of change within the firm, offering a new approach to knowledge sharing, and has already saved B&B an estimated cost savings of 10 to 1. We project continued breakthroughs in knowledge-sharing and cost-savings via our ongoing evolution into collaborative Cloud solutions within the firm and with our clients. With 77 attorneys and 14 locations throughout California, B&B faces the challenges in bridging attorneys, departments, and clients together. Cloud-hosted collaboration is the future... and we're leading the future at B&B."

Want More Information?

Contact Eric Hunter (ehunter@bradfordbarthel.com) or Don Barthel (dbarthel@bradfordbarthel.com). Also be sure to check out the September 9th and 10th Chilli IQ conference in Australia where Mr. Hunter will present on Collaborative Cloud Computing, Google Apps, and the cost savings and increased utility they bring to B&B and our clients.²

Congratulations, Eric!

¹ILTA, is an international organization that, for the past 3 decades, has led the way in sharing knowledge and experience for those faced with challenges in their firms and legal departments.

ILTA's international membership comprises firms of all sizes and all areas of practice, each sharing a common need to have access to the latest information about products and support services that impact the legal profession worldwide. At over 1,200 entities and 12,000 individuals in membership, there’s a wealth of knowledge and experience to share.

For more information about the Distinguished Peer Award program, please visit http://www.iltanet.org/MainMenuCategory/Awards.aspx.

² For more information on Bradford & Barthel's strategic drive into collaborative cloud computing and how this vision benefits our clients and the legal industry, check out our follow-up interview with Inside Legal and our push into Legal 2020 with ILTA's Peer to Peer, A Paradigm Shift Brings Staggering Cost Reductions, pages 32 to 33; see also Technology Forecast - Clouds Ahead and Collaboration in the Cloud - A Quick Look at Knowledge Sharing, both of which were published in B&B's BLOG.

To Answer or not to Answer...

2010-07-01T13:51:00.000-07:00

by Scott Rountree, Esq.

An Application for Adjudication (Application) is part and parcel of workers' compensation litigation. In a nutshell, it is the opening document filed to establish the WCAB's jurisdiction and to get the matter moving along.

The vast majority of Applications are filed by the injured worker (IW), but may also be filed by a defendant or lien claimant. The Application sets forth the issues for which the filing party seeks relief, such as TTD, PD, medical treatment, voucher, etc. Typically the applicant's attorney files the Application, works up the case and —upon completion of discovery—the case is settled or goes to trial.

The Application is Ringing!
Far too often, defendants fail to treat the Application like a ringing phone...it needs to be answered. But why?

Typical issues raised by a defendant's answer are apportionment, entitlement to a voucher and the always fun affirmative defenses (post termination and initial physical aggressor, to name but a couple).

Labor Code § 5505 states a defendant... "may, within 10 days after service of the application... file [an] answer... setting forth the particulars in which the application is inaccurate or incomplete, and the facts upon which he intends to rely." Thus, the plain language of the statute makes clear that an answer is not mandated.

Hey, who does work that isn't required? Aren't you busy enough... should you really be looking for more non-mandated work?

Go ahead. Relax. Don't file an answer.

But relax at your peril!

CCR 10484 provides the following ominous language:

Evidence upon matters and affirmative defenses not pleaded by Answer will be allowed only upon such terms and conditions as the Appeals Boards or workers' compensation judge may impose in the exercise of sound discretion.

In other words, failure to raise an affirmative defense such as post-termination or initial physical aggressor in the answer allows the savvy applicant to argue the defense is waived! Do you really want to leave this waiver issue in the "sound discretion" of your local WCJ?

Better safe than sorry is a good rule of thumb. If there is a shred of evidence that an affirmative defense is at play, raise it! Issues raised by both sides do not have to be entered into evidence at trial. BUT, those issues not preserved are potentially waived.

Answer that ringing Application!

Scott Rountree is Hearing Representative for Bradford & Barthel's Tarzana office.

Patricia Carlos, Esq. Named Asst Mng Atty in Tarzana

2010-07-01T13:44:00.000-07:00

by Tahmeena Ahmed, Esq.

It is my pleasure to announce that Patricia Carlos will be our new Assistant Managing Attorney for the Tarzana office. Pati recently began her fifth successful year with the firm. She brings with her a multitude of skills, including her administrative strategies, shrewd negotiation talents, and an undying commitment to B&B's clients.

Tahmeena Ahmed
Managing Attorney, B&B's Tarzana Office

The AME Trap (aka Why Agreed Medical Examiners Make Me Disagreeable)

2010-04-01T13:40:00.000-07:00

by Don Barthel, LLP
You have the right to attempt to resolve virtually any/all workers' compensation issues by going to an Agreed Medical Examiner (AME). Presumably all adjusters and workers' comp attorneys have agreed to one or more (likely many more) AMEs during their careers.

Why?

I've often posed that question to participants in the Continuing Education (CE) lectures that I present, usually two or more times a week. The answer? It typically follows under one of three general headings:

"I want to rely on a doctor I know."
"It's best to use a doctor with a track record."
"Who knows who’s going to be on the PQME panel?"

While there are times that employing an AME's services may be the best plan of action, I strongly believe that, far more often than not, reliance on PTPs and/or PQMEs is a safer (and less expensive) alternative.

Watch Out Kids, We’re "Splitting the Baby"
While the WCJ, the WCAB, and the Courts formally tell us that they "presum[e] that parties chose an AME 'because of his [or her] expertise and neutrality'"¹, we know the truth, don’t we? AMEs are used to "split the baby" and make tough decisions that the parties (a) can’t resolve on their own and/or (b) don’t dare allow the WCJ to decide. Regularly throughout California AMEs are implicitly being utilized with little hope of making the parties happy, following the theory that a "good resolution" is defined as a "settlement that makes everyone unhappy."

How often, however, have you received an AME report and been outraged that the AME (a) didn’t see things your way (no real surprise there…), (b) didn’t find Applicant P&S/MMI, and/or (c) needs to obtain further testing, etc. before he/she can issue a "final" report? When you receive the AME's hefty bill, how often have you found yourself fantasizing for a very short while about (rightfully) objecting to it until you realize you still need that AME's "final report" or desposition testimony? At that point, any thoughts of challenging the billing quickly dissipate and the bill is—grudgingly—placed in line for payment lest you run the risk of irritating the very person who will decide many/most of the pivotal issues in your case....right?

If you agree to an AME to "split the baby," never be surprised when things get messy! ²

AMEs Can't Be Your Friend
B&B's Rating Services recently completed our six thousandth AMA Guides-based analysis. In that time, we have seen doctors misapply the Guides for fun and profit everywhere in California (and this started long before the WCAB's Almaraz/Guzman shenanigans!). What have those six thousand reports taught us?

While PTPs and PQMEs are fully capable of misapplying the Guides, AMEs do so far more often and far more consistently than do PTPs/PQMEs! At first blush, this may seem counterintuitive. After all, being referred to as an "AME-quality doctor" invariably means the physician in question has been in the industry a long while (probably far in excess of the five-plus years that we've used the Guides in California³) and his/her qualifications are so prized that one party (the defense) is willing to pay extra obtain the AME's opinion.

Given the foregoing, why are AMEs more likely to misapply the Guides?

The answer to this puzzle became clear to me several years ago after a lecture I gave in Santa Rosa entitled "The Misapplication of the AMA Guides for Fun & Profit." During that presentation, I expressed outrage and frustration at the fact that over 80 percent of the reports analyzed by the B&B Rating Department included errors—many of them very significant—involving misapplication of the Guides' rules and instructions. Shortly after the presentation, I was met in the parking lot by two gentlemen who introduced themselves as local AMEs.⁴ Both self-professed AMEs claimed that (a) they fully understood the Guides, (b) they could accurately apply the Guides, but—and this is a BIG BUT—(c) they would never properly apply the Guides.

My less-than-brilliant response: "Huh?"

Quickly regrouping, I rephrased my question: "You say you understand the Guides. You could accurately apply the Guides. BUT you'll NEVER properly apply the Guides?"

Upon recognizing that I wasn't feigning confusion, the AMEs sought to enlighten me via the Socratic Method.

AMEs: "Don, if we properly applied the Guides, what percentage of the spine cases would receive zero percent WPI?"

ME: "More than a third would fall into DRE Category I, which gives zero percent. So, about 35 to 40 percent would be zero."

AMEs—grinning at each other: "Correct. And if we properly applied the Guides, what percentage of the post-hernia repair cases would receive zero pecent WPI?"

ME: "Just about all of them. Over 90 percent."

AMEs—nudging and winking at each other: "Correct again! And if we properly applied the Guides, what percentage of post-carpal tunnel release cases would receive zero percent WPI?"

ME: "Well, probably two-thirds would be a zero and most of the rest would be 3 percent WPI."

AMEs—trying to stifle their laughter: "Correct again. Now here's the 64-Dollar-Question. If we properly apply the Guides and give zero percent WPI/PD in over one-third of the back cases, two-thirds of the carpal tunnel cases, and nearly all hernia cases, what happens to our AME business?"

It was a terrific question! In their none-too-subtle-way, these AMEs made clear that they couldn't properly apply the Guides if they hoped to stay in business. Because if they gave out all those zero percents and low (very) numbers that the Guides—if properly applied—normally produce, applicant’s attorney would most assuredly (a) NEVER agree to use that AME again, and (b) circulate that AME's name—along with a scathing opinion of the doctor—to every CAAA member within shouting distance. In short order, the honest AME soon would be driven out of business!

While I have seen many PQME reports that similarly failed to properly apply the Guides, a PQME who doesn't also moonlight as an AME shares none the financial downside to honest reporting that AMEs face!

Is this outrageous?

Maybe.

Is this wrong?

Most assuredly.

But ask yourself, if you were an AME (and enjoying the financial rewards related to that business), what would you forsake first? Your dedication to an accurate application of the Guides (which, in all likelihood, you view as attempting to steal all the discretion that prior PD Schedules bestowed on you) or your thriving business? (California's physicians understand this. I recently spoke at the annual conference of the California Orthopedic Association. Several physicians asked me whether they could be an AME if they simply "told the truth." They were concerned becoming an AME meant dispensing with their intellectual honesty. I concur!)

Want to rebut the AME, PTP or PQME?
We've all been there before. We just hated the PTP report and thought, "Things can't get worse. Let's go to an AME." Of course, as soon as we start thinking "things can't get worse," they inevitably do! Read that freshly issued AME report, and suddenly the PTP doesn't look so bad after all!

What happens at the MSC and Trial when you attempt to convince the judge that he/she should rely on the PTP and not the AME? You know the answer. The WCJ will almost invariably rely on a long body of cases that say the WCJ is to presume the AME has been chosen by the parties because of his/her "expertise" and "neutrality." In short, it's an uphill battle to overcome the unofficial "presumption of correction" that attaches to an AME report. Generally you’re going to need to convince a judge that the AME report is somehow so faulty as to be rendered not "substantial evidence."

Can this be done?

You bet!

What are your odds of succeeding?

You'd be better off taking the cash, going to Vegas, and putting it all on black or red!

Those of us who have been defending workers' compensation cases too long may believe that the foregoing is true of every report upon which Applicant is relying. If Applicant is relying on the AME, or PTP, or PQME, or APQME, the WCJ is more likely to rely on that report over the report on which the defense is relying. While that may be true, it overlooks some of the various methods the defense can use to attack Applicant's report in a manner calculated at keeping the WCJ from relying on it (or, more likely, making Applicant's attorney so hesitant to rely on it at trial as to result in a more defense-oriented settlement). What are those tactics?

Misapplication of the Guides:
As noted above, B&B's Rating Services has demonstrated that over 80 percent of the reporting physicians misapply the Guides. Even if the doctor and applicant's attorney are going to attempt an Almaraz/Guzman analysis, that case law requires a traditional application of the Guides also be provided by the doctor so as to permit the WCJ to determine which method (traditional versus Almaraz/Guzman) provides a "more accurate" estimate of WPI. Thus, if it can be demonstrated that the AMA Guides have not been correctly applied, applicant's attorney faces an uphill battle to get the WCJ to follow the report.
Almaraz/Guzman I & II:
While virtually every physician in California's workers' compensation community has heard of Almaraz/Guzman (and most will probably tell you that the case limits their imaginative ways of increasing your impairment/PD exposure only insofar as they must stay with "the four corners of the Guides"), few seem to have actually read the cases, and even fewer appear to understand how to actually apply them. Most physicians confuse "impairment" with "disability," oftentimes attempting to justify their increase of WPI by noting the Applicant could not return to his/her usual and customary position (U&C).⁵ If the physician upon whom applicant's attorney is relying has misapplied Almaraz/Guzman (and we point this out to the WCJ in our Points & Authorities), we again undercut the likelihood that applicant's attorney report will win the day.
Apportionment Woes:
Learning—and applying—the new (4/19/04) apportionment rules has not proven easy for most reporting physicians. This should come as no surprise: Labor Code 4663 and 4664, with their emphasis on apportioning on the basis of causation, present a dramatic departure from the past. Thus, our PTPs and medical-legal physicians often can't seem to get their minds around the concept that apportionment can be perfectly acceptable in cases where, prior to the industrial injury, the Applicant was wholly asymptomatic from other conditions.⁶

Given these many tools the defense can use to attack applicant's medical-legal report, rendering that report non-substantial evidence becomes an increasingly easier proposition.

Conclusion
Are you toying with the idea of agreeing to an AME? Has your defense attorney recently suggested agreeing to a physician proposed by applicant's counsel? Are you inclined to so proceed because you "want to rely on a doctor you know" and/or "want to use a doctor with a known track record" and/or are "fearful as to who's on the PQME list"?

Think again!

A PQME can do damage to your case...but it often takes an AME to completely screw things up!

Don Barthel is a founding partner of Bradford & Barthel, LLP, as well as B&B's Rating & File Consultation Services. Mr. Barthel is an acknowledged expert regarding the AMA Guides to the Evaluation of Permanent Impairment and the 2005 PDRS. Much of his time is dedicated to teaching these topics to adjusters, human resource directors, employer representatives, attorneys, and physicians throughout California and the United States. Have a PDRS or AMA Guides question? Call Don Barthel at (916) 996-1263 or email him at dbarthel@bradfordbarthel.com.

¹ Power v WCAB (1986) 179 Cal.App.3d 775 [51 Cal. Comp. Cases 1141].

² I recently had the pleasure of deposing an AME in the Bay Area on behalf of another defense firm. After the first hour, the AME could not contain his indignation. Exasperated at all of the questions posed, he observed, "I was selected as the AME. Why are you now asking all these questions?" His point? The parties had, by selecting him as AME, agreed to have him "split the baby." After having done what he perceived he had been asked to do, why did the defense now insist on an accurate analysis?

³ Recall that the Guides were first used in California effective January 1, 2005. See Labor Code 4660.

⁴ The names are not being provided here so as to protect the guilty!

⁵ For further details as to why such a justification is wholly erroneous, see "SAVE MONEY: Don't Let Doctors Misapply Almaraz/Guzman".

⁶ Recall that 50 percent apportionment to preexisting knee arthritis was upheld in the first en banc apportionment decision that issued post-SB 899, Escobedo v. Marshalls, 70 CCC 604 (2005) despite the fact that Applicant was, prior to her industrial injury, wholly asymptomatic.

Apportionment - Simplified - The Glass of PD Method

2010-04-01T13:32:00.000-07:00

by Don Barthel, Esq.

In last month's issue (http://www.bradfordbarthel.com/BLOG/V5N1/Five-5.htm, I described how the DEU's erroneous approach to apportionment inappropriately expands employer PD exposure. In this article I use the a "Glass of PD Method" to illustrate this point.

Assuming an empty glass represents 0% PD and a full glass 100% PD, let's review an example from our last article. Applicant suffered accepted injuries to five different body parts, A through E, as outlined in the table below. The PD for each body part received at least 50% apportionment. In another words, the employer was found liable for no more than half of the PD associated with each of the body part. Without apportionment, the total PD was 97%.

Can you guess how much PD the employer must pay? Let's review. The total PD without apportionment stands at 97%. The employer is, based on the apportionment determinations, responsible for no more than 50% of the PD for any one body part. Thus, logic would suggest the employer is liable for something less than half of 100% PD.

"WRONG", says the DEU.

If you leave it to the DEU, PD is 62% after apportionment! How can injuries giving rise to less than 100% with at least 50% apportioned away result in employer liability for greater than 50% PD?

There is a logical, reasonable and practical alternative (aka The "B&B alternative"):

Body Part	PD Before Apportionment	Industrial %	Combined	PD Increase	PD IncreaseAfter apportionment
A	91%	50	-	91%	46%
B	34%	33	91 c 34 = 94	3%	1%
C	19%	50	94 c 19 = 95	1%	1%
D	19%	33	95 c 19 = 96	1%	0%
E	18%	33	96 c 18 = 97	1%	0%

We have already "poured" the PD into the glass in the order combined,largest to smallest. (Note: illustration is not to scale.)

The black lines represent the amount of PD contributed by each body part.

The white vertical lines represent the apportionment, with the shaded (right) side being the industrial portion (that is, industrially-caused PD)

Clearly less than one-half of the glass is shaded. So where does the DEU go wrong?

Simple—once the PD goes in the glass, we cannot just pour it out. After all, it is Permanent Disability.

The DEU's calculations remove the non-industrial portion of the disability as if it wasn't there. However, if you ask the injured worker—it's still there!

Now a quick lesson on combining using the same glass.

Body Part A had 91% PD and PD is PD; you can't make it anything else . It doesn't transform into something other than PD simply because the employer is not responsible for some of it. Body Part B, by itself, represents 34% PD, but now there is only 9% space left inf our "Glass of PD" (100% - 91% = 9%). So 34% of the remaining 9% is now affected, or 3% additional PD (91 c 34 = 94). The process continues for the remaining body parts.

Using the DEU method, Body Part A is magically improved to 46% PD (91% times 50% industrial). And Body Part B is improved to 11% PD (34% times 33% industrial). But, the 11% is now applied to the remaining 54% (100% - 46%) resulting in Body Part B being worth 6% PD (46 c 11 = 52, a 6% increase in PD)! Without considering any other body parts, the employer is paying for more than half of the total 94% disability (91 c 34 = 94% PD before apportionment).

OUCH!

Questions? Call Phil Billman, Ratings Department Manager, at (916) 595-8436.

Phil Billman is a highly respected workers' compensation expert. Having demonstrated his capabilities by passing the state SIP test and completing the WCCA and WCCP, he has extensive experience as a senior claims adjuster. Specializing in workers' compensation ratings, the AMA Guides and related areas, he regularly lectures about the AMA Guides and PDRS issues.

I Spy...for Free!

2010-01-01T13:18:00.000-08:00

by Don Barthel, LLP
Suspicious about an applicant's veracity, but can't quite figure out why?

Trying to decide whether to assign a case to a private investigator?

Questioning whether your hunch can justify the costs of hiring your favorite gumshoe?

Consider saving lots of money by performing your own 15-minute background check...for free! Internet searches are quickly becoming an easy, effective, and inexpensive (not to mention…FUN!) way of researching an applicant's background and verifying their credibility.

She's Doing What?
The wealth of information readily available on the internet first became clear to me last year while defending the orthopedic/psych case of "Jill,"¹ Jill had happily collected TD for over a year and seemed likely to continue on this course for a long while. Jill had provided a local cell phone number in her contact information, but almost immediately retracted the number—stating it was a "mistake"—and replaced it with what she described as her "real" number.

Huh? "Real" phone number? As opposed to what...a "fake" one? This seemed suspect, but what did it mean?

Shortly after the phone number interaction, a psychiatric report made mention of the fact that Jill had "long ago" worked as an "escort."² Interesting! This quickly led to speculation that the "mistake" phone number was really a "work" number. Rather than hire a private investigator to stake out Jill's apartment, we plugged the "mistake" number into various web sites advertising adult companionship. Within minutes we struck gold! At Craigslist.org's now infamous "adult services" page, Jill's cell phone number was listed as the number to call for various unchaste activities...all available for a price! Jill was indeed supplementing her temporary disability checks! Confirming Jill's connection to these ads required no expensive investigation: her postings also included revealing pictures of her face...among other things...that she regularly updated.

Armed with the fruits of a 15-minute amateur background check demonstrated (a) an undeclared income stream, (b) likely tax evasion (a source of non-industrial stress?), and (c) an ability to run and manage a thriving business while simultaneously misrepresenting to physicians and the claims adjuster that she was totally incapacitated. Not surprisingly, the workers' compensation matter was quickly and economically resolved!

Spies Like Us
Ready to do a little "snooping" on your own? Select a couple of your favorite search engines (I personally prefer Google.com and Bing.com), and plug in any relevant identifying information: names, addresses, phone numbers—these readily available tidbits are your keys to an applicant's past and current activities.

Consider scouting around in...

Phone Directories:
Got a phone number (like Jill's!) that your applicant uses? Interested in knowing whether that number is associated with a different name, an alternative address, and/or is linked to a business? Type it in and push "search"!
Facebook:
Facebook is a global social networking website on which users can add friends and send them messages. Millions of folks regularly post updates and detailed "personal profiles"—often with pictures—detailing their activities. Applicant is TTD and claims he/she can't even perform light duty? A Facebook posting describing a recent camping trip, cross-country drive, dance class, etc., may be just what you need to get that TD terminated and a problem file resolved (not to mention a fraud referral picked-up by the local District Attorney!)

I recently located a Facebook page that was operated by the deceased spouse of a beneficiary/claimant. A review of that page quickly demonstrated that the decedent was a bit of a "player" and far from truthful (information that was both highly relevant and helpful in resolving the case).

Facebook accounts have a default privacy setting that will allow people to access a poster's page, even if the poster and viewer/investigator are not linked as "friends." If, on the other hand, the applicant's webpage security setting requires that you obtain permission to obtain access, consider obtaining an Order Compelling applicant to allow access to his/her webpage, as well as any/all history of the page. Consider also requesting that the order mandate that applicant not update or alter the page in any way pending the investigation.
Local Newspapers:
California has hundreds of newspapers and most are local (very) papers.³ Many of these newspapers permit free access and a wonderful "archives" search engine. Interested in reading an article about your claimant's recent arrest or golf tournament win? The local paper's police blotter and sports page often provide fascinating—and free—reading for the gumshoe-on-a-budget like you!
There's No Place Like Home:
An applicant's home address is a valuable piece of information to search online. Is or was the home recently listed for sale? Recently sold? Being prepared for sale? Is a business name associated with that address?
Order In The Court:
Has your claimant been naughty? Find out by searching the local "Court Clerk" and "Court Index," a search that usually costs little to nothing.
Take a Drive Through the Neighborhood:
What does applicant's residence look like? Is there a lot of activity? Would it be a good place to assign an investigator to watch, or would your P.I.-for-hire stick out like a sore thumb? All of these questions can easily be answered—for free—using Google's "Street View." Google.com says, "We like to think of Street View as being the last zoom layer on the map— when you've zoomed all the way in you find yourself virtually standing on the street."⁴ Alternatively, run your applicant's name on www.zabasearch.com or www.pipl.com (self described as "the most comprehensive people search on the web") for similar maps and related information about your subject.

Admit it...you’re just dying to snoop around!

Happy hunting!

Don Barthel is a founding partner of Bradford & Barthel, LLP, as well as B&B's Rating & File Consultation Services. Mr. Barthel is an acknowledged expert regarding the AMA Guides to the Evaluation of Permanent Impairment and the 2005 PDRS. Much of his time is dedicated to teaching these topics to adjusters, human resource directors, employer representatives, attorneys, and physicians throughout California and the United States. Have a PDRS or AMA Guides question? Call Don Barthel at (916) 996-1263 or email him at dbarthel@bradfordbarthel.com.

¹ Name changed to protect the guilty!

² This did not mean that she was impersonating a more expensive version of the Ford Motor Company's compact vehicle.

³ For a statewide list that includes daily, non-daily, and even "alternative" newspapers, go to http://newslink.org/CAnews.html.

⁴ http://maps.google.com/help/maps/streetview/using-street-view.html, November 30, 2009

Spinal Surgery Authorization Process OR Pain In The Neck?

2010-01-01T13:15:00.000-08:00

by Don Barthel, Esq.

Just received a primary treating physician's (PTP) request for authorization to provide spinal surgery? Think the proposed surgical treatment isn't reasonable and necessary?¹ Don't stop to smell the roses...you're running out of time (literally!).

The WCAB's most recent (11/19/09) en banc decision, Cervantes v. El Aquila Food Products Inc, requires that you jump through so many hoops to deny the authorization request that even the WCAB Commissioners admit it "may seem redundant"!² And all this redundacy must be completed within ten (10) days!

Your Choices Are GONE!
Per a prior WCAB Panel decision, Brasher ³, you had some choices when dealing with spinal surgery requests, such as:

Relying exclusively on UR's determination and letting applicant try to obtain a timely Labor Code 4062(b)⁴ report to fight UR determination, or
Obtaining both a UR determination and your own 4062(b) report, or
Completely opting out of UR and disputing the spinal surgery recommendation using only a 4062(b) report.

All your choices have disappeared!

The WCAB expressly disapproved Brasher, and, in so doing, determined you either must approve the spinal surgery or timely proceed via the second approach listed above. That is:

Defendant "must" undertake UR, completing that process "within 10 days of its receipt of the treating physician's report," and

If— and only if— UR denies the surgery, defendant "may" object using Labor Code 4062(b).

Got Questions?

Question: Given Cervantes' use of the word "may" regarding invocation of Labor Code 4062(b), does this mean a timely 4062(b) objection is not mandatory?

Answer:While logic would dictate an affirmative answer, the WCAB provides a rather silly response. The defense is not "required" to timely object pursuant to 4062(b), but if you don't you will "lose[] [your] right to a second opinion report and...must authorize the spinal surgery." In short, you are not required to invoke 4062(b), but if you don't...you lose!

Question: So even though 4062(b) and the WCAB say the employer "may" object to a PTP's spinal surgery recommendation and "may" obtain a 4062(b) second opinion, I must authorize the spinal surgery if I don't timely object via 4062(b)?

Answer: Exactly!

Question: To deny a PTP's spinal surgery recommendation, I must complete the UR process within 10 days of the receipt of the PTP's report and invoke 4062(b) within that same 10 days?

Answer: Exactly! (If you're getting a headache, you're probably starting to understand Cervantes!)

Question: What if UR authorizes the spinal surgery? Can I still obtain a second opinion via Labor Code 4062(b?
Answer: Nope! If UR approves the requested surgery (or you fail to timely complete the UR process), you have one—and only one—option: authorize the surgery. Per Cervantes, "if there is no UR 'deni[a]l' there is no 'dispute' to 'resolve[].'" [p. 8, quoting 4610(g)(3)(A)]. "[A] defendant's objection under section 4062(b) to a treating physician's spinal surgery request may be made only after that request has been denied by UR" (p. 10, italics added).

Question: I'm too busy to do all this. I can let my attorney handle it, right?

Answer: At this point, having your attorney—or anyone other than "a principle or employee of the employer, insurance carrier, or administrator"—handle this on your behalf appears to be fraught with peril given that AD Rule 9788.1(a), cited approvingly by the WCAB, requires that any objection under 4062(b) "shall" use the form found in Section 9788.11 and "must" be executed by "a principle or employee of the employer, insurance carrier, or administrator."⁵

Question: What if UR timely denies the surgery and the Applicant timely invokes the Labor Code 4062(b)? Can we rely on that objection?

Answer: The WCAB makes clear that this is not an option: "it is the defendant, and not the injured employee, that may initiate the spinal surgery second opinion procedure." Thus, B&B cannot recommend reliance on such an approach. If, however, this does occur on your case without an objection, query as to whether the parties have waived an objection to this procedural irregularity? (How many of us have been before a WCJ long after the timelines for obtaining an AME have long past, only to have the judge ask the parties, "Can't you all agree on an AME"?) Nevertheless, such a scenario is likely to be rare. Indeed, it is increasingly unlikely that the Administrative Director would issue the name of a physician for a second opinion in response to a 4062(b) objection coming from the Applicant.

Question: Didn't the California Supreme Court's Sandhagen⁶ decision recently tell us that the defense is to raise treatment disputes via UR and the injured employee—and only the injured employee—gets to use 4062 as a way to argue with a UR decision? Sounds like the WCAB's Cervantes conflicts with a California Supreme Court holding, doesn't it?

Answer: Not according to the WCAB. Cervantes distinguishes Sandhagen. Acknowledging that "Sandhagen repeatedly said that defendants cannot use section 4062 to dispute treatment requests...Sandhagen was not a spinal surgery case and it did not directly involve...4062(b)."

Question: If I need to complete UR and timely issue a 4062(b) objection within 10 days of receiving the PTP's report, can I initiate both processes simultaneously?

Answer: To quote the Talking Heads, "Stop Making Sense"! ⁷

The Cervantes decision makes clear that proceeding simultaneously—and thus reasonably attempting to ensure you do not miss any deadlines—is not an option. "[A] defendant's objection under...4062(b) to a treating physician's request may be made only after that request has been denied by UR." (Cervantes, p. 10, italics added)

Question: This is exhausting! Let's say I've actually been able to beat the odds by:

Sending the PTP's report to UR
Obtaining a UR denial of the surgical request
Triggering 4062(b) by following all the requirements in AD Rules 9788.1, 9788.11 and 9792.6(o)
Completing all of this within 10 days of receiving the PTP's surgical recommendation
Receiving a 4062(b) second opinion that concurs with UR...

...do I get to go to Maui to celebrate?

Answer: Not so fast. Per Cervantes, "at every step...4062(b) places the onus on the defendant." (p. 11) 4062(b) next requires that "[i]f the second opinion does not recommend surgery, the employer shall file a declaration of readiness to proceed." So, once you've filed your DOR, pack your bags for Hawaii, but be sure to be back in time for the hearing.

Question: What hearing? If no Application for Adjudication has yet been filed, will the WCAB take action on my DOR? After all, they don't have jurisdiction without an Application. Oh wait a minute...you're going to tell me I've got to file the Application too, aren't you?

Answer: Nope. After filing the DOR, your work is done. We can discern no labor code, regulation, or case law suggesting you must also file the application.

Good news?
How often have you searched a medical report for treatment recommendations, only to:

Find them buried on page 27 of the report, or

Overlook them, or

Not be able to determine whether the doctor was actually making a recommendation?

The PTP reports in Cervantes were typical of the problematic reports reviewed by adjusters and defense attorneys on a daily basis. The PTP provided such unclear observations as applicant "may be a surgical candidate" and "I do feel somewhat confidant that the patient would benefit from surgery..." Is that a real request for authorization to provide spinal surgery?

No longer must you hunt for treatment recommendations or guess as to whether spinal surgery is being recommended. The WCAB made clear that the 10-day timelines are "triggered only by a physician's report that complies with AD Rule 9792(6)(o)['s]" mandate that the written request be provided:

In a "Doctor's First Report of Occupational Injury of Illness" (Form DLSR 5021), or

The "Primary Treating Physician Progress Report" (DWC Form PR-2), or

In a narrative format that is "clearly marked at the top that it is a request for authorization." ⁸

No longer may the doctor play "got ya"! (Though the WCAB's requirements certainly seem to contain a "got ya" flavor.)

Donald R. Barthel is a founding partner of Bradford & Barthel, LLP, as well as B&B's Rating & File Consultation Services. Mr. Barthel is an acknowledged expert regarding the AMA Guides to the Evaluation of Permanent Impairment and the 2005 PDRS. Much of his time is dedicated to teaching these topics to adjusters, human resource directors, employer representatives, attorneys, and physicians throughout California and the United States. Have a PDRS or AMA Guides question? Call Don Barthel at (916) 996-1263 or email him at dbarthel@bradfordbarthel.com.

¹ Labor Code 4660 requires that employers provide "medical treatment that is reasonably required to cure or relieve the injured worker from the effects of his or her injury." This article relates only to disputes regarding the reasonableness and necessity of spinal surgery recommendations. It does not relate to spinal surgery disputes based on AOE/COE considerations.

² Trust the Commissioners' characterization...their procedures are very redundant!

³ Brasher v. Nationwide Studio Fund (2006) 71 Cal. Comp. Cases 1282, a significant panel decision.

⁴ Labor Code 4062(b) provides: The employer may object to a report of the treating physician recommending that spinal surgery be performed within 10 days of the receipt of the report. If the employee is represented by an attorney, the parties shall seek agreement with the other party on a California licensed board-certified or board-eligible orthopedic surgeon or neurosurgeon to prepare a second opinion report resolving the disputed surgical recommendation. If no agreement is reached within 10 days, or if the employee is not represented by an attorney, an orthopedic surgeon or neurosurgeon shall be randomly selected by the administrative director to prepare a second opinion report resolving the disputed surgical recommendation. Examinations shall be scheduled on an expedited basis. The second opinion report shall be served on the parties within 45 days of receipt of the treating physician's report. If the second opinion report recommends surgery, the employer shall authorize the surgery. If the second opinion report does not recommend surgery, the employer shall file a declaration of readiness to proceed. The employer shall not be liable for medical treatment costs for the disputed surgical procedure, whether through a lien filed with the appeals board or as a self-procured medical expense, or for periods of temporary disability resulting from the surgery, if the disputed surgical procedure is performed prior to the completion of the second opinion process required by this subdivision.

⁵ Rule 9788.1(a) provides:
An objection to the treating physician's recommendations for spinal surgery shall be written on the form prescribed by the Administrative Director in Section 9788.11. The employer shall include with the objection a copy of the treating physician's report containing the recommendation to which the employer objects. The objection shall include the employer's reasons, specific to the employee, for the objection to the recommended procedure. The form must be executed by a principle or employee of the employer, insurance carrier, or administrator.

⁶ State Comp. Ins. Fund v. WCAB (Sandhagen) (2008) 44 Cal.4th 230 [73 Cal.Comp.Cases 981)

⁷ "Stop Making Sense (1984) is a concert movie featuring Talking Heads live on stage. Directed by Jonathan Demme, it was shot over the course of three nights at Hollywood's Pantages Theater in December of 1983, as the group was touring to promote their new album Speaking in Tongues. The movie is notable for being the first made entirely utilizing digital audio techniques. The title comes from the lyrics of the song "Girlfriend is Better": 'As we get older and stop making sense...'." http://en.wikipedia.org/wiki/Stop_Making_Sense 12/10/09.

⁸ AD Rule 9792.6(o) provides:
"'Request for authorization' means a written confirmation of an oral request for a specific course of proposed medical treatment pursuant to Labor Code 4610(h) or a written request for a specific course of proposed medical treatment. An oral request for authorization must be followed by a written confirmation of the request within seventy-two (72) hours. Both the written confirmation of an oral request and the written request must be set forth on the 'Doctor's First Report of Occupational Injury or Illness,' Form DLSR 5021, section 14006, or on the Primary Treating Physician Progress Report, DWC Form PR-2, as contained in section 9785.2, or in narrative form containing the same information required in the PR-2 form. If a narrative format is used, the document shall be clearly marked at the top that it is a request for authorization."

⁹ You may recall that Mr. Larres is currently leading the defense of Almaraz/Guzman I & II, having filed briefs with the WCAB and who writes with the 6th District Court of Appeal on behalf of the defense in Guzman.

B&B Announces Newest Partners

2010-01-01T13:13:00.000-08:00

by Mark Fletcher, Esq.

B&B recently announced its newest partners: Farai Kadzirange (Ontario), Sean Shabestari (Ontario), Patricia Carlos (Tarzana), Garrett Kuehn (San Diego), Tom Murphy (Tarzana), Peter Fitzpatrick (Ontario) and Monica Coats (Fresno).

Citing the new partners' "outstanding service" and "aggressive, client-oriented approach," B&B noted that its newest partners bring nearly 1½ centuries of legal experience to bear. It is the quality of work, attention to detail, and dedication to our clients this group consistently demonstrates that has permitted B&B to distinguish itself as one of California's truly premier workers' compensation defense firms.

Congratulations, Class of 2009!

Mark Fletcher is the Managing Attorney of Bradford & Barthel, LLP.

Technology Forecast: Clouds Ahead

2010-01-01T13:08:00.000-08:00

by Eric Hunter

TOP SECRET - Do NOT Read!

Hey, we told you not to read this! Are you gone?

Ok, now that everyone has left, we can discuss this top-secret information...

B&B's Knowledge Management Department is leading the industry developing cutting-edge technological advances to benefit our clients and B&B's own staff, attorneys, and managers in ways that heretofore were unimaginable.

Do you start to fall asleep even at the mere mention of "technology"? Are you "too old" for all that "technobabble"?

Think again.

Not only will the advances planned at B&B for 2010 be beneficial to you; they can be easily understood by even the most novice of technology users.¹ Thus, beginning with this issue of B&B's BLOG, Mr. Eric Hunter will bring us all up to speed on the latest and greatest technology advances, and, most importantly, show us how this will make our work easier, more efficient, and less expensive!

-- Don Barthel.

Eric, take it away...

Welcome to the maiden voyage of B&B's "TOP SECRET—Do NOT Read!" This is the first of many articles slated to appear in B&B's BLOG dealing with the future (read: "now") of communication. Are computers involved? Yes. The internet? Yes. Lots of technology. Yes....BUT don't let that turn you off. The advances planned for B&B for the near- and short-term do deal with "technology", BUT not that icky, scary, mind-numbing stuff of the past. It's 2010, folks. If, at this late date, the technological "advances" and "improvements" are not simple and easy to use, then they ain't improvements at all.

The Future of Communication (and Why You Should Care)
As part of B&B's ongoing efforts to improve quality, increase efficiency, and decrease client costs, the firm's Knowledge Management Department is exploring and implementing communications systems that, just a few months ago, would have sounded more like science fiction.

Twenty years ago, typewriters dominated the legal world of communication. Typos, BIC Wite-Out©, and rewrites were the bane of every secretary. Need that document right away? Your options were largely limited to "snail mail" (a phrase that had yet be invented), overnight delivery and—increasingly—faxes with unmanageable, self-destructing paper.

As the years wore on, email with and without attachments, scanning, cell phones, and computers with their own printers began to litter the landscape. At this point, that's probably very much what your office looks like, right?

Can it get any better?

Much! And B&B is leading the way!

But where....

"To infinity ... and beyond!"² just might be the rallying cry for B&B's Knowledge Management (KM) Department³ as B&B sets the industry standard in information sharing.

What's so "cutting edge" about B&B's KM Department?

Look up....way up!

B&B Has Its "Head In the Clouds"
No longer are the information repositories of B&B's various departments (legal, ratings service, administrative, financial, etc.) separate and distinct. Rather, the KM Department is now able to bring these warehouses of information (both figurative and literal) together and make them readily accessible such that, with proper authorization/clearance, designated personnel can readily access any/all needed electronically stored data at the touch of button. In short, email, documents, dictation—virtually any form of communication—will all become synonymous and, more importantly, interchangeable from the perspective of accessibility. Thus, we can and will dramatically increase efficiency and decrease the time and cost otherwise associated with data retrieval.

Imagine! An adjuster needing information about a file calls the managing attorney. No longer does that manager need to retrieve and review the physical file for the latest correspondence, request billing information from the Financial Department, and/or go elsewhere to research the adjuster's concerns. Rather, the managing attorney simply turns to his/her laptop at the office (or anywhere on the road with internet connection), pushes a few buttons, and immediately accesses the file, the most recent correspondence, the current and past billings, etc. In a matter of minutes, virtually any question relating to the file's handling can be researched and answered!

How are these research miracles possible?

Have you heard of "cloud computing"? It involves converting and hosting all of your company's applications (Outlook, Word, WordPerfect, PowerPoint, etc.) and all of your data (including anything you input, from letters, files, medical reports, email correspondance, and scanned documents to pictures, video, internet, intranet, blogging, social networking, and dictation) offsite in the...well...in the "clouds." In short, everything you can see, input, or extract from your computer is somewhere far, far away from you and your computer screen.

Why is this a good thing?

How many expensive servers does your employer have? Better yet, how often do those servers "crash," leaving you searching to find lost data (including that letter that must go out "yesterday") and twiddling your thumbs as you consider whether your oncoming nervous breadown will be considered AOE/COE? How often have your "tech guys" or "tech gals" had to drop everything and rush across the office, across town, or across the state in hopes of saving the day....tomorrow or next week? These on-site servers, crashes, and psychiatric claims will soon become a thing of the past at B&B.

How?

We're dumping our servers (want to buy some...cheap?)!

All data and applications are moving to the "clouds" on supersized, super efficient, super reliable servers located across the state, the nation, and the world. Why is this a good thing? Don't we want to be able to control our own data and protect it from evil?

Great questions...and "cloud computing" has fantastic answers:

"Super Size It": How much of my data can and should be stored "in the clouds"?
All of it! By employing the servers owned by international, Fortune 100 companies, small and mid-sized companies such as B&B can access the technological advances of cutting edge equipment that would otherwise be far beyond our pocketbook's capacity. The potential cost-savings are—in a word—SUPER!
Safety From Disaster:
By using cloud technology offsite, doesn't B&B expose its privileged data (including your attorney-client communications) to prying eyes? Absolutely not. By taking advantage of a multitude of servers at various locations, we achieve an economical back-up program (the data is duplicated in multiple locations so if/when the servers in California slide into the ocean, there will be servers on the other side of the country...or the world...standing ready and fully accessible with copies of all the "lost" data), as well as added security. Today your high priority letter itemizing the strengths and weaknesses of your multimillion dollar lawsuit is sitting on some server just waiting to be crash. Tomorrow B&B's cloud computing will "divide and conquer" disaster recovery by splitting your letter-and all other data-into many, many parts and storing it in pieces on various servers around the world.
Where do I have to go to access my files and other data that B&B stores "in the clouds"?
Nowhere! You, the client (with proper security authorization), your attorney, your attorney's supervisor, secretary, etc., can all access your data from...EVERYWHERE! If you want to read a letter on your computer right now, you probably need either a hard copy or your computer (with its hard drive) in front of you, right? Not with cloud computing! Because your data is stored "in the clouds," you can access your data from anywhere in the world where you have internet access and any type mobile device (computer, laptop, netbook, cell phone...anything that allows connection with internet). Starbucks here we come!
Computer? Laptop? Netbook? Cell phone? What if I—or my attorney—lose the accessing device? Have we lost the file?
Absolutely not! The file (and any other related data) is stored elsewhere "in the clouds." The accessing device (computer, laptop, etc.) is nothing more than that: an accessing device. As such, it can be lost, destroyed, replaced or stolen without losing a single kilobyte of your information.
Did you say "stolen"? Does this mean that when we lose a cell phone (or computer, etc), we've just given the keys to all our privileged information to a thief?
Heck no! First, there is no information on the accessing device (it's all "in the clouds"). Moreover, prying eyes cannot access your cloud-based data, even if they have "borrowed" your access device. Why? Security authentication— no different from the safety controls your bank uses to safeguard your cash—guarantees your data is safe from the prying eyes of criminals! These security codes and passwords can be regularly updated and changed at a moment's notice when necessary to accommodate potential security challenges, such as personnel changes, new and novel security issues, and the like.
My file contains HUGE documents, endless subpoenaed records, and reams of other documents. How long is it going to take to download all this from the clouds each time I need it?
Don't blink! No longer than it currently takes to access documents from your traditional computer....and in many cases a lot faster than that! Same goes for uploading information and data to the clouds.
How do I organize and search through all this data?
Organizing it? NOT a problem! Have you ever performed a Google© search? How long did it take? Not very! If you can find the information you're looking for when you use Google, Yahoo, Bing, or your favorite search engine (who can't?), you'll be able to access all the information you, your co-workers and attorneys store for you in the clouds.

Eric Hunter is Director of Knowledge Management at Bradford & Barthel, LLP.

Do you have questions? Concerns? Comments? Please email any thoughts you have relating to communication advances to ehunter@bradfordbarthel.com. We'll be happy to address your questions and develop future BLOG articles on topics of interest to you.

¹ Some have defined "technology" as "anything that was invented after you were born." www.urban.dictionary.com, 1/6/10

² When you steal, steal from the best. You may recognize this phrase as the oft repeated catchphrase of Buzz Lightyear, the self-important Star Commander in Disney's hit film, "Toy Story."

³ It ain't "IT" or "Tech" anymore. Those computer geeks who spoke in "computerese" that few of us real folks could understand are a dying breed, replaced by Knowledge Management Professionals who—with their advanced technology know-how—coordinate and direct strategic growth at cutting edge businesses like B&B in the areas of competitive intelligence, social technology, and really cool gizmos. It's all about the knowledge.

The DEU Violates the Labor Code and Costs You Money (Here's How to Prove It)

2010-01-01T13:04:00.000-08:00

FUN WITH APPORTIONMENT
by Phil Billman, B&B Rating Services Manager

The Problem

This is not another long-winded treatise on how to get an apportionment determination approved by a WCJ. This article assumes that the apportionment is already approved or otherwise stipulated. Rather, this essay is aimed at ensuring that the DEU's misapplication of the 2005 Permanent Disability Rating Schedule (PDRS) and relevant apportionment labor codes¹ does not cost you money!

The 2005 PDRS and AMA Guides (5th) introduce numerous ways to add and combine numbers. Inasmuch as the PDRS and Guides are, for legal purposes, mere regulations, whereas the applicable Labor Code sections are statutory, Labor Code 4663 and 4664 trump any conflict that may arise as between the Labor Code and Regulations. The DEU, too, has gotten into the mix, dictating an apportionment methodology that frustrates Labor Code intent and increases your PD exposure.

What is the DEU doing wrong?

Imagine this: You have a medical report that awards PD to various body parts. The resulting PD, once combined, results in something less than 100%. The doctor also provides legal apportionment of 50% for each and every body part? How much PD will you owe? You might conclude that, given that (a) the overall PD is less than 100%, and (b) the employer is liable for no more than 50% of the PD attributable to any injured body part, the PD owed must be something less than 50% (after all, 50% x 100% PD = 50% PD). While your logic is airtight, the DEU would very likely say "wrong," instead reporting to the WCJ that you owe well over 50% PD.

Huh? How could this be?

The DEU applies apportionment to the PD for each involved body part, and then proceeds to combine the apportioned PD. For example, if the doctor, using Labor Code 4663, apportions away 50% of the PD for a neck, arm, and leg injury, the DEU's rating with apportionment looks like this:

50%(15.01.01.00 - 38 - [5]48 - 250F - 48 - 48) 24% PD
50%(16.01.02.04 - 50 - [5]64 - 250E - 61 - 61) 31% PD
50%(17.01.07.00 - 30 - [5]38 - 250F - 38 - 38) 19% PD

Thereafter, the DEU will combine these three apportioned numbers (31%, 24% and 19% PD) in descending order.

You might ask, "So what?" What's wrong with that?

Answer: Nothing is "wrong" with this, if you are willing to allow the DEU to disregard the labor code and cost your client more money.

The Solution

LC §4663(c) states in part:

A physician shall make an apportionment determination by finding what approximate percentage of the permanent disability was caused by the direct result of injury arising out of and occurring in the course of employment and what approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury, including prior industrial injuries.

LC §4664(a) states:

The employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment.

As noted above, the Labor Code talks about permanent disability being apportioned, not the pieces that make up the permanent disability.

So do the DEU's apportionment calculations violate the labor code and cost you more money? Here is an example taken from a real-life report. The doctor apportioned away 70% of the PD for each body part, thus leaving apportioning 30% of the PD to the affects of the industrial injury.

Body Part	PD Before Apportionment	PD After apportionment
A	25%	25% x 30% = 8%
B	6%	6% x 30% = 2%
C	12%	12% x 30% = 4%
D	7%	7% x 30% = 2%
E	7%	7% x 30% = 2%

Combined before apportionment – 25 c 12 = 34; 34 c 7 = 39; 39 c 7 = 43; 43 c 6 = 46% PD

Combined after apportionment – 8 c 4 = 12; 12 c 2 = 14; 14 c 2 = 16; 16 c 2 = 18% PD

Looks good, right?

WRONG!

The total PD suffered before apportionment is 46% PD. What is 30% of 46? 46% x 30% = 14% PD! So why is the DEU calculating that you must pay 18% PD? The law says you don't have to.

Nice and easy if the doctor applies apportionment uniformly. What if the apportionment is different for each body part? According to the DEU, apportionment would be calculated as follows:

Body Part	PD Before Apportionment	Industrial	PD After apportionment
A	91%	50	91% x 50% =46%
B	34%	33	34% x 33% = 11%
C	19%	50	19% x 50% = 10%
D	19%	33	19% x 33% = 6%
E	18%	33	18% x 33% = 6%

Combined before apportionment – 91 c 34 = 94; 94 c 19 = 95; 95 c 19 = 96; 96 c 18 = 97% PD

Combined after apportionment (DEU method) – 46 c 11 = 52; 52 c 10 = 57; 57 c 6 = 60; 60 c 6 = 62% PD

Wait a minute!

No single body part is more than 50% industrial and you are paying 64% of the total unapportioned PD! The total unapportioned PD is 97%! If no single body part suffered PD that was more than 50% industrial, how can you possibly be required to pay 62%, representing more than 50% of the total PD? Shouldn't you be required to pay something less than 49%, that is something less than half of the total PD (Total PD = 97% x 50% = 49% PD)?

There is a B&B Alternative

Apply apportionment to the increase in PD caused by that body part. It takes a little longer, but it can and will save thousands, tens of thousands, and even hundreds of thousands of dollars on your cases!

Body Part	PD Before Apportionment	Industrial %	Combined	PD Increase	PD IncreaseAfter apportionment
A	91%	50	-	91%	46%
B	34%	33	91 c 34 = 94	3%	1%
C	19%	50	94 c 19 = 95	1%	1%
D	19%	33	95 c 19 = 96	1%	0%
E	18%	33	96 c 18 = 97	1%	01%

In this second approach the PD has been combined before apportionment; therefore the PD increases are added to arrive at a total PD after apportionment of 48% PD. For a 2009 DOI, with a maximum earner, the employer is paying an additional 14% PD or $25,357.50 using the DEU method!

Great, but how often do you have this number of body parts and this level of impairment? Let's look at one example of two body parts at lower levels of apportionment.

The DEU Way

Body Part	PD Before Apportionment	Industrial %	PD After Apportionment
A	16%	70%	16% x 70% = 11%
B	10%	80%	10% x 80% = 8%

Combined before apportionment – 16 c 10 = 24% PD

Combined after apportionment – 11 c 8 = 18% PD

B&B's Alternative Method

Body Part	PD Before Apportionment	Industrial %	Combined	PD Increase	PD After Apportionment
A	16%	70%	-	16%	11%
B	10%	80%	16 c 10 = 24	8%	6%

Add the apportioned increase to arrive at 17% PD. In this case, the employer is paying an additional 1% PD or $1,150 using the DEU method (2009 DOI, max earner)!

Can you really afford to let the DEU misapply the law and overstate your PD exposure?

NEXT ISSUE – How a Water Glass Answers All Your Questions!

Phil Billman is Manager of the Ratings Department.

Do you have an AMA Guides, PDRS, or apportionment rating question? Big or small, simple or complicated, Phil Billman has the answer. Call him at (916) 569-0790 or email him at pbillman@bradfordbarthel.com. A highly respected workers' compensation expert, Phil is frequently invited to lecture on the AMA Guides and PDRS issues.

¹See Labor Code Sections 4663 and 4664.

B&B Speeds Up Litigation Process; Saves Clients Money!

2009-07-01T10:55:00.000-07:00

B&B Speeds Up Litigation Process; Saves Clients Money!
by Mark Fletcher, LLP

Bradford & Barthel, LLP, is proud to announce yet another milestone in our quest for defense excellence.

Already a leader in client services and innovation, B&B is taking yet another giant leap forward in further defendng our clients' interests. On September 14, 2009, all 12 B&B offices "went live" with the e-filing program at every WCAB venue. This means B&B clients will have their matters heard more quickly, skipping ahead of firms using the slower, outdated Optical Character Recognition (OCR) format.

With e-filing, a party can file a DOR and get a date virtually immediately. A hearing notice may be obtained within 24 hours of filing the DOR. By contrast, OCR forms are filed manually, leading to delays lasting weeks and months as parties wait for a pleading to be scanned and acted on by a WCAB District Office.

Litigation delays are costly, both in terms of time and money. Quickly getting matters to the WCAB will translate to real savings enjoyed by B&B clients. The speed and efficiency of e-filing benefits all defense stakeholders. Employers and carriers can get matters resolved more quickly with big dollar savings. Injured workers have their cases resolved faster, leaving them happier, less likely to retain counsel, and returning them to work more quickly. Defense attorneys can more efficiently litigate issues, thereby driving down litigation costs even further.

The WCAB began the Electronic Adjudication Management System (EAMS) in August of 2008. Most stakeholders started using OCR forms. These documents need to be filled out, sent to the WCAB, scanned in by the local board employees, and then acted upon. Almost immediately the process began to slow to a near halt. Horror stories abound about documents taking up to six months to be scanned and ruled on. "Filings seemed to fall into a black hole and often didn't make it out," complained one industry insider. "Lost documents" that disappeared without a trace led to further frustrations, delays, and costs.

Electronic filing, or e-filing, was also initiated in 2008, but only on a trial basis with a select few participants. B&B was actively involved in this trial from the very beginning, thereby placing B&B in a position to compare and contrast e-filing and OCR. The time savings achieved via e-filing was immediate and huge.

Bradford & Barthel is proud to now have all of its 12 offices participating in this trial program, thereby allowing all B&B clients to reap the savings.

Mark Fletcher is the Managing Attorney of Bradford & Barthel, LLP.

B&B Scores "Split Decision" in Almaraz/Guzman

2009-07-01T10:53:00.000-07:00

B&B Scores "Split Decision" in Almaraz/Guzman
by Don Barthel, Esq.

The defense, led by Bradford & Barthel's own Louis Larres, scored a number of "wins" in Round Two of Almaraz/Guzman:

"Not Fair" is "No Standard"
The WCAB has now jettisoned its original standard for determining whether an AMA Guides-based PD rating is rebutted. In AG I, the WCAB claimed an injured worker need only demonstrate the Guides-based rating is "inequitable, disproportionate, and not a fair and accurate measure of the employee's [PD]." The AG II majority acknowledged Mr. Larres' arguments that this standard "is subjective and may lead to inconsistent and non-uniform permanent disability ratings, i.e., what is inequitable, disproportionate, and not fair and accurate to one trier-of-fact may be equitable, proportionate, and fair and accurate to another." (AG II, p. 28) Indeed, "a 'fairness' standard is not a true standard at all." (AG II, p. 29, footnote 38)

What Can CAAA Use to Inflate Permanent Disability Awards?
"[I]f a party seeks to rebut the WPI element of a scheduled rating, it must stay within the four corners of the AMA Guides." (AG II, p. 30) This represents a dramatic pull back from AG I, which would have permitted physicians to provide impairment determinations "partially based on the AMA Guides" or even "not based on the AMA Guides" at all. AG I envisioned that, once the AMA Guides was rebutted, impairment would "[o]rdinarily" be measured "through the opinions of treating or evaluating physicians who, using a methodology in addition to and/or independent of the AMA Guides, conclude that the injured employee's impairment is greater than—or lesser than—the impairment rating called for by the Guides." (AG I, p. 44) AG I also invited doctors to consider other generally accepted medical literature, such as other AMA publications, as well as publications of other established medical organizations. Even worse, AG I invited physicians to review and consider the vocational specialist's opinions regarding employability to ascertain impairment. Given AG II's rejection of these options, the defense can save a bundle in litigation costs in this area alone!

The majority has begun to acknowledging the importance of Labor Code 4660(d)’s requirement (brought to us by SB 899) that "[t]he schedule shall promote consistency, uniformity, and objectivity." It is 4660(d)’s mandate that leads the majority to conclude doctors must "stay within the four corners of the AMA Guides."

The Fight Must Continue:
While recognizing the central role the AMA Guides plays in promoting consistency, uniformity, and objectivity, the WCAB now nevertheless permits the misapplication of the Guides:

"[A] physician is not inescapably locked into any specific paradigm for evaluating WPI under the Guides... [E]ach reporting physician…should give an expert opinion on the injured employee's WPI using the chapter, table, or method of assessing impairment of the... Guides that most accurately reflects the injured employee's impairment." (AG II, p. 22-23)

Thus, the majority suggests that we can no longer expect and demand that a physician use the AMA Guides Chapter 15 ("The Spine Chapter") just because there is a spine injury! As long as the doctor doesn’t "arbitrarily assess [the]... impairment" (p. AG II, p. 23) and does "explain" his/her "impairment conclusions," the doctor may mix and match the "most accurate[]" chapters, tables, and methods. (AG II, p. 23). This is exactly what the B&B Rating Service sees in 81 percent of the MMI reports we evaluate; the physicians misapply the Guides and, thus, overstate the impairment/PD... often by tens of thousands and even hundreds of thousands of dollars.

WCAB's Achilles' Heel
While the WCAB has stepped back from AG I and, thus, improved the overall strength of its arguments, AG II carries plenty to both hate and use against it to achieve its inevitable downfall.

The Guzman portion of the opinion will be the subject of a writ to the Sixth District Court of Appeal. Expect the 6th DCA to be won over by some of the following considerations:

While the WCAB now believes (or at least claims) they have achieved consistency, uniformity, and objectivity by limiting impairment assessments to the "four corners of the AMA Guides," said consistency/uniformity is pretty much limited to the fact that impairment assessments require that we use a big green book. ¹ After referencing the Guides, consistency/uniformity are maintained only so long as it takes physicians to discover "creative" ways of misapplying the Guides, and claiming such creative (and more expensive) WPI determinations more "accurately reflect the injured employee's impairment."
Labor Code 4660(b)(1) requires that, in assessing PD, the "nature of the physical injury or disfigurement" component of disability "shall incorporate the descriptions and measurements of physical impairments and the corresponding percentages of impairments published in the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (5th Edition)."

Is it unreasonable to believe that the California Legislature, in mandating the use of the AMA Guides, wanted us to apply the Guides as written? While such a statutory interpretation seems only reasonable and logical, the WCAB chooses a different path, inviting doctors to apply any "chapter, table, or method of assessing impairment of the AMA Guides" that the physician can "explain"!
While the majority "agree[s] that one of the ways the Legislature helped to reduce [PD] costs [via SB 899] was by requiring that WPI be based on the AMA Guides," AG II ignores that its new program for assessing WPI/PD will dramatically increase costs by invariably resulting in at least two different WPI analyses in every case: (1) an analysis based on the AMA Guides as written, and (2) a secondary—inflationary—calculation that mixes and matches the doctor's various favorite (read: more expensive) "chapters, tables and methods."

In short, AG II (a) gives mere lip service to the requisite consistency, uniformity, and objectivity, (b) invites "creative writing" in disability reports by permitting the misapplication of the Guides as written, and (c) stymies the legislative intent of SB 899 by increasing, rather than decreasing, the costs associated with PD and litigation!

While CAAA may be impressed, I doubt the 6th District Court of Appeal will concur!

But How Do I Set Reserves?
Great question!

Setting reserves has always been part science, part art and lots of guesswork. Things had gotten much better with SB 899, at least in terms of PD. Until AG I, the adjuster simply estimated the impairment—based on the Guides as written—and applied the 2005 PDRS to adjust for DFEC, occupation. and age. PD reserve accuracy dramatically increased statewide!

What else can/should an adjuster do in the world of Almaraz/Guzman I and II?

Nothing! WPI assessments based on the Guides as written, and properly adjusted to PD using the 2005 PDRS, remain "prima facie evidence of the percentage of permanent disability." Who says? Labor Code 4660(c)!

Any attempt to set reserves by predicting exactly how an evaluating physician might successfully misapply the Guides would represent nothing but guesswork virtually destined to fail!

Good luck! And keep up the good fight!

¹Kudos to Illinois Midwest Insurance Agency's own John Hanlon for this brilliant insight!

Donald R. Barthel is a founding partner of Bradford & Barthel, LLP as well as B&B's Rating & File Consultation Services. Mr. Barthel is an acknowledged expert regarding the AMA Guides to the Evaluation of Permanent Impairment and the 2005 PDRS. Much of his time is dedicated to teaching these topics to adjusters, human resource directors, employer representatives, attorneys, and physicians throughout California and the United States. Have a PDRS or AMA Guides question? Call Don Barthel at (916) 996-1263 or email him at dbarthel@bradfordbarthel.com.

Ogilvie I and II are "Dead on Arrival"

2009-07-01T10:50:00.000-07:00

Ogilvie I and II are "Dead on Arrival"
by Don Barthel, Esq.

On 9/3/09, the WCAB revisited its earlier DFEC discussions with Ogilvie with yet another en banc decision: Ogilvie II.

Largely reiterating its earlier standard for rebutting the diminished future earnings capacity modified (DFEC) found in the 2005 Permanent Disability Rating Schedule, the majority gave employers much to cheer about. Indeed, given the language found on pages 30-32 of Ogilvie II, there is good reason to believe we will rarely see any serious attempt by an applicant's attorney to fight the DFEC front.

The reason?

It will take far too long!

How Long Can You Hold Your Breath, CAAA?
Responding to applicant attorney's complaint that the Ogilvie I formula for rebutting the DFEC is so time-consuming as to violate the state constitution's requirement that workers' compensation "accomplish substantial justice…expeditiously," the WCAB disagreed: "...nothing in [Ogilvie I] mandates that a party must challenge the DFEC..." In short, an applicant isn't forced to fight the DFEC fight. If the Ogilvie formula represents too long a wait, tough luck…just don’t go there!

Although the majority tries to be a little wishy-washy (technical legal term!) on the issue, it is clear that the rebuttal formula requires three years of post-injury earning be used "...at least 'ordinarily.'" (Nope... the WCAB makes no attempt to identify any "extraordinary" circumstances.) While stating "there is nothing magical about a three-year period," three years is the period of time used in the 2003 and 2004 RAND studies "because these data provide the best balance." If the RAND Corporation thinks three years is the "best balance," good luck to any former VR counselor turned "DFEC expert" who tries to prove three years' worth of economic data isn't needed!

But wait! It gets worse from CAAA's perspective…

Three years can easily stretch to over 5 years!

How?

"[W]hen an employee is receiving [TD] he or she is unable to work or is unable to work for full wages... Accordingly, where an injured employee has been off work (or partially off work) and receiving [TD]," the three years during which to calculate the employee's "actual earning capacity" gets pushed back to when TD discontinues... likely the P&S/MMI date. "Then, if within five years of the date of injury it later becomes clear that the employee's individualized proportional earnings loss is significantly higher or lower than anticipated, a party may seek to reopen the issue of [PD] by challenging the originally used DFEC adjustment factor." (p. 32, Ogilvie II)

Hmm... Let's review that math…

Even assuming the two years of TD begins on the date of injury (and that there are no broken periods), two years of TD plus three years to measure the "employee's actual earning capacity" equals five years. Assuming it takes at least a few months to collect the three years of data once that data is available, we're quickly more than 5 years post-injury... and, more to the point, well past the statute of limitations for filing a Petition to Reopen. Of course, this is all rendered moot if applicant agrees to a Compromise & Release somewhere along the way!

Even if a 3- to 5-year wait isn't sufficient to dissuade AA from fighting the DFEC issue, keep in mind:

The DFEC adjustment factors found in the 2005 Permanent Disability Rating Schedule (PDRS) are presumptively correct.

If applicant's attorney wants to challenge the DFEC in the PDRS, he/she has the burden of proof. [See Labor Code 4660(c), Evidence Code 601 & 603]

"[T]he rebuttal evidence must be legally substantial" [See, generally, Labor Code 5952(d)]

"[E]ven if the rebuttal evidence is legally substantial, the WCAB as the trier-of-fact may still determine that the evidence does not 'overcome' the DFEC adjustment factor component of the scheduled [PD] rating."

A successful "individualized DFEC adjustment factor" requires: "(1) obtaining two sets of wage data (one for the injured employee and one for similarly situated employees),...; (2) doing some simple mathematical calculations with that wage data…(3) dividing the employee's [wpi] by the proportional earning loss to obtain a ratio; and (4) seeing if the ratio falls within certain ranges of ratios in Table A of the 2005 Schedule... If it does not, then a non-complex formula is used to perform a few additional calculations to determine an individualized DFEC adjustment factor," (Ogilvie II, p. 2, italics added) I’ve met no one who, after examining the so-called "simple mathematical calculations" and "non-complex formula," agreed that these were child's play. (In fact, many were either falling asleep or considering "hitting the bottle"!) I believe very few of our friends at CAAA are capable of collecting and calculating the requisite data on their own…and even far fewer have the time and/or inclination to do so.

CAAA members do have the option of hiring a "DFEC expert," but the question then becomes: Who is going to pay for this expert? Answer: Good question!

We Ain't Paying for Applicant's "Expert"!
What does the law say? Despite CAAA's insistence that the "defense pays," that ain't what the labor code states. Labor Code 5811 provides: "...In all proceedings... before the appeals board, costs as between the parties may be allowed," (italics and underline added).

If properly and aggressively defended, the defense should rarely be saddled with AA’s expert’s costs! Why?

Is the expert really an "expert"? ("[T]he qualifications of each... expert must... be determined on a case by case basis." Costa II)

Is the testimony really "expert testimony"? (see Evidence Code 720)

Were the costs "reasonably, actually, and necessarily incurred"? [See Labor Code 4621(a) "… the employee... shall be reimbursed for... medical-legal expenses... reasonably, actually, and necessarily incurred… The reasonableness of, and necessity for, incurring these expenses shall be determined with respect to the time when... actually incurred."]

If I were a CAAA member, I can think of many more entertaining (and financially rewarding) ways to spend my time than attempting to attack the DFEC (such as re-writing the AMA Guides... see B&B Scores a "Split Decision" in Almaraz/Guzman).

Good luck! And keep up the good fight!

Donald R. Barthel is a founding partner of Bradford & Barthel, LLP as well as B&B's Rating & File Consultation Services. Mr. Barthel is an acknowledged expert regarding the AMA Guides to the Evaluation of Permanent Impairment and the 2005 PDRS. Much of his time is dedicated to teaching these topics to adjusters, human resource directors, employer representatives, attorneys, and physicians throughout California and the United States. Have a PDRS or AMA Guides question? Call Don Barthel at (916) 996-1263 or email him at dbarthel@bradfordbarthel.com.

The Future of Almaraz/Guzman? (Reading the Crystal Ball)

2009-04-01T10:30:00.000-07:00

The Future of Almaraz/Guzman? (Reading the Crystal Ball)
by Donald R. Barthel, LLP

After a whirlwind of activity, the writ and responses have been filed with the Court of Appeal (Sixth District) in Guzman. The briefs have all been received by the WCAB in both Almaraz and Guzman.

Now what?
Industry insiders agree that the Court of Appeal likely will take no action until the WCAB issues Almaraz/Guzman II. While the Court of Appeal could have dismissed the pending writ when the WCAB decided to grant reconsideration, no such action has been taken. Does this mean the 6th DCA is ready to pounce when Almaraz/Guzman II issues? Only time will tell.

How much time?
Not much!

At a recent conference in San Francisco on May 14, Commissioners Caplane and Moresi strongly hinted the WCAB's second crack at Almaraz/Guzman would be released in short order. Commissioner Moresi indicated he had already read "nearly all" of the amicus briefs. Although neither commissioner gave anything away, there was nothing in the tenor of the discussion to suggest Almaraz/Guzman would be overturned…by the WCAB anyway!

Reading Tea Leaves
Many folks "in the know" have been providing strong hints as to what Almaraz/Guzman II will— and will not—do.

In particular, the word seems to be that Almaraz/Guzman is meant to apply to a very limited number of cases... and even in those cases there will not be significant impact. This was forcefully hinted at by Commissioner Caplane who predicted "a lot of experimentation," but then went on to compare Almaraz/Guzman to LeBoeuf: "When Leboeuf (sic) came out, there was a big furor over that, and it turned out to be much ado about nothing, except for the few cases where it applies." ¹

"Much ado about nothing"?

"Few cases where it applies"?

Hmmm... Every applicant attorney I hear preach about Almaraz/Guzman claims it applies to every case where the AMA Guides (5th) is applicable!

Blair Megowan, manager of the Disability Evaluation Unit (DEU), appears to agree with Commissioner Caplane:

"The general essence of [Almaraz/Guzman] was that not necessarily will every rating always be based on a pure interpretation of the AMA Guides. There are going to be times when it is appropriate to use a slightly different approach." ²

"Slightly different approach"? These are words that warm the hearts of California's employers and insurers!

This "Don’t Worry, Be Happy" chorus was joined by WCAB Deputy Commissioner Susan Hamilton at a recent conference in San Francisco. Deputy Commissioner Hamilton echoed the same heartwarming phrases used by Commissioner Rabine and DEU Manager Megowan!

Re-Reading Almaraz/Guzman I
A re-reading of the original WCAB decision provides insights into potential approaches the WCAB may take to rein-in the influence of its original en banc decision:

"It appears likely....that an AMA Guides rating will be deemed to have been rebutted where the employee's injury has no permanent effect on his or her 'activities of daily living' or it is simply not covered by the Guides—thereby resulting in no ratable AMA Guides impairment—but the injury seriously impacts the employee’s ability to perform his or her usual occupation and, therefore, significantly affects his or her earning capacity."³

Thus, it appears the WCAB foresees two scenarios where the Guides may be rebutted:

Where the aoe/coe condition is "not covered by the Guides"
Where there is little impact on ADL, but a significant impact on work capacity.

Let's analyze these two rebuttal scenarios:

First, what conditions are "not covered by the Guides"? Recall the Guides is a long (very!) book: over 600 pages. Thus, when a PTP, PQME and/or AME claims a condition is "not covered," the proper retort is "read more carefully!" More to the point, there are no conditions "not covered by the Guides"! How can this treatise cover all conditions, including those not even mentioned in the medical literature until after the Guides' publication in November, 2000? Easy:

"In situations where impairment ratings are not provided, the Guides suggests that physicians use clinical judgment, comparing measurable impairment resulting from the unlisted condition to measurable impairment resulting from similar conditions with similar impairment of function in performing activities of daily living." ⁴

The Sixth Edition of the Guides, published in 2008, underscores this position.

The upshot?

There is no "not covered" condition that permits the Guides to be rebutted, and, if the doctor determines the Guides does not directly cover the condition in question, that condition must have "objectively identifiable impairment" ⁵

Turning to the WCAB's scenario wherein the commissioners foresee the Guides being rebutted ("where the employee's injury has no permanent effect on his or her 'activities of daily living'"), the logic appears to be thus:

No ADL impact = No impairment = No Permanent Disability

It is—to use the WCAB’s terms—"inequitable" and "disproportionate" and "not fair" to provide no PD where applicant has suffered a significant impact on his/her earning capacity. But let us examine this proposition a bit further. If there is no ADL impact, this means applicant has no problems with (a) self-care, personal hygiene, (b) communication, (c) physical activity, (d) sensory function, (e) nonspecialized hand activities, (f) travel, (g) sexual function, and/or (h) sleep. In short, applicant has no problems at home, with the family, on vacation, etc., but work is out of the question!?!?

Call me an old defense attorney, but I think such a claim is a plea for sub rosa!

The Future—Guaranteed?
Almaraz/Guzman II will not be the "end of the story." As one defense attorney recently noted in response to the WCAB's granting of reconsideration in Almaraz/Guzman I, "The WCAB has just opened another can of worms and they've done nobody any favors... I don't think anybody with even a passing knowledge of workers' comp can really believe the WCAB is going to have the final word on this matter."⁶

Court of Appeal, here we come!

Donald R. Barthel is a Founding Partner of Bradford & Barthel, LLP as well as B&B's Rating & File Consultation Services. Mr. Barthel is an acknowledged expert regarding the AMA Guides to the Evaluation of Permanent Impairment and the 2005 PDRS. Much of his time is dedicated to teaching these topics to adjusters, human resource directors, employer representatives, attorneys and physicians throughout California and the United States. Have a PDRS or AMA Guides question? Call Don Barthel at (916) 996-1263 or email him at dbarthel@bradfordbarthel.com.

¹ Workcompentral, "Miller: WCAB Aware of Voc Rehab Issues," (3/2/09)

² Workcompentral, "California—Manager Hints at how Almaraz/Guzman Affects DEU (03/04/09)]

³ Almaraz/Guzman I, p. 41

⁴ AMA Guides To the Evaluation of Permanent Impairment (5th), p. 11

⁵ Subjective complaints need not apply!

⁶ Workcompcentral (4/18/09) "Defense Attorney in Guzman Prefers Appeal to Reconsideration"

Objecting to Untimely PQME Reports: A Ticking Time Bomb

2009-04-01T10:27:00.000-07:00

Objecting to Untimely PQME Reports: A Ticking Time Bomb
by David Grant, LLP

An instructive panel decision issued recently concerning the time frames for objecting to untimely panel QME reports. The WCAB in Teytud v. Clean Innovation Corp. (36 CWCR283) (ADJ 3371087) ruled the defendant waived its right to object to an untimely PQME report.

The original PQME delayed providing a report for over five months. In response to a defense motion, the WCJ ordered the appointment of a new PQME. Applicant attorney filed a Petition for Removal with the WCAB.

The panel based its decision on Labor Code Section 4062.5, which can be summarized as follows:

If a panel QME fails to complete the medical evaluation within the time frame established in Labor Code 139.2(j)(1) (30 days with certain limited exceptions), then a new evaluation may be obtained at the request of either party as provided for in Labor Code 4062.1 or 4062.2.

It should be noted that section 4062.5 does not expressly require an objection be made nor does it contain any time limitations for making an objection. Nevertheless, the panel reasoned defendant had waived its right to a new evaluation by not objecting when it knew the report was untimely. In this case, the report was due on November 1, 2007, 30 days after the examination date. Defendant did not object to the timeliness of the report until March 28, 2008, after receiving the report. The panel was particularly concerned with the potential for "doctor shopping" where reports are objected to only after they are received.

The panel concluded a party wishing to object to an untimely QME report must do so promptly in order that another report can be obtained to resolve the disputed medical issue as quickly as possible.

The decision in this case raises more questions than it answers. First, one must define the term "promptly." If a statute does not specify a particular time period such as 15 to 30 days, the courts usually make a determination based upon what is reasonable under the circumstances. Is an objection to an untimely panel QME report, served within 30 days after the report was due, prompt? Must late report receive an objection before it is received? Within 10 days of receipt? A month? To be on the safe, I recommend objecting within 10 days after the 30 day due date.

Additional questions arise if a party is not timely served with a report which was arguably completed within 30 days, but the service was delayed and—in the interim—a prompt objection to timeliness is filed. What then?

A more disturbing question arises in a situation where there is no prompt objection—or no objection at all—and six months goes by without a report. Have the parties forever waived the right to object to timeliness?

For practical purposes, Labor Code 4062.5 states "a new evaluation may be obtained upon the request of either party" if the time limitations are not met by the panel QME.

Failure to timely object and request a new panel evaluation is deemed a waiver of that right, and the parties thereafter may be at the mercy of the panel QME absent further case law on this subject.¹

Dairy those files and watch those reporting deadlines closely!

David Grant is a Senior Partner of Bradford & Barthel, LLP

¹ This opinion notwithstanding, it does appear clear that the defense may not be liable for paying for a late report... even if the objection is untimely. On this point Labor Code 4062.5 seems clear:

"Neither the employee nor the employer shall have any liability for payment for the formal medical evaluation which was not completed within the required timeframes unless the employee or employer, on forms prescribed by the administrative director (bold added), each waive the right to a new evaluation and eledfcts to accept the original evaluation even though it was not completed within the required timeframes."

Given the italicized language, an express waiver of timeframes seems to be the only way an untimely PQME can successfully demand payment.

How Much Is A CAAA Member Really Worth?

2009-04-01T10:22:00.000-07:00

How Much Is A CAAA Member Really Worth?
by Donald R. Barthel, Esq.

The Problem
In the post-SB 899 world, applicant attorneys are evidencing increasing creativity to step up their revenue stream. Not so very long ago, a CAAA member could make a fortune. Permanent disability based on work restrictions and subjective complaints permitted unconscionable—but lucrative—awards. Penalties calculated on the species of the benefit? Cha ching! Fees for work on vocational rehabilitation issues? Low hanging fruit!

Life was great... for CAAA.

These days, however, applicant attorneys are starving (or so they say!). Lately applicants attorneys have been looking to deposition fees and Labor Code 5710 as important source of income via outrageous rates. How much should you pay?

The Law
What does 5710 say on the subjective? Very little! The relevant portion is 5710(b)(4), which provides:

(b) Where the employer or insurance carrier requests a deposition
                   to be taken of an injured employee, or any person claiming benefits
                   as a dependent of an injured employee, the deponent is entitled to
                   receive in addition to all other benefits…
         
                      (4) A reasonable allowance for attorney's fees for the deponent,
                          if represented by an attorney licensed by the State Bar of this
                          state.  The fee shall be discretionary with, and, if allowed, shall
                          be set by, the appeals board, but shall be paid by the employer or
                          his or her insurer.

Clearly, 5710(b)(4) begs the question: What is a "reasonable…attorney’s fee"?

CAAA To The Rescue?
Claiming that they are attempting to devise an hourly rate to avoid unnecessary WCAB time litigating hourly rate issues, some creative attorneys—and even presiding judges—have created "Attorney Fee Guidelines & Recommendations" that are sent to local boards and widely circulated amongst CAAA members. These "Guidelines & Recommendations" are often followed by the local judges, particularly if not challenged by the defense. Such documents currently circulate at a number of WCAB district offices (Sacramento, San Francisco, San Diego…to name a few). I recently reviewed just such a document that recommended $200 for newbie attorneys with no experience and $350 or more for those with 20+ years in the industry.

To put that into perspective, consider this: what is the rate charged by the senior defense attorney who actually conducts the deposition? Probably significantly less than the amount "recommended" for the freshly minted law school graduate sitting across the table!

A recent review of available case law on the subject suggests that anything over $250/hour should routinely receive an objection, regardless of the suggestions found in the local "Guidelines & Recommendations." How persuasive are those guidelines?

Not very.

Consider the words of WCJ Dennis Stach, who—after reviewing "evidence" submitted by an applicant attorney that included memos with recommended rates authored by the presiding judges from San Francisco and Stockton—declared:

"…the exhibits... are not only inappropriate under the Labor Code but they are irrelevant immaterial and inadmissible hearsay. They are mere opinions of individuals. Said opinions have not been adopted by administrative directors' office. Each district and each judge has the prerogative of establishing what is reasonable in a way of a fee in the district in which they preside. It is clear under Labor Code Section 5710 the fee is within the discretion of the WCALJ pursuant to Labor Code Section 5710(b) (4) and board rules 10775. It is within the discretion of the WCALJ as to the reasonable fee for services rendered. ¹

Irrelevant?

Immaterial?

Inadmissible hearsay?

Mere opinions?

Now that's great defense language!

The Test
If the "irrelevant," "immaterial," "inadmissible hearsay," and "mere opinions" of various presiding judges and/or local county bar associations do not dictate the hourly Labor Code 5710 fee, what does? A recent WCAB opinion that included the award of additional fees drafted by Commissioner Caplane provides some fascinating language. Although the opinion was determining an appropriate fee for an appellate attorney's efforts, the discussion is readily applicable to deposition fees as well:

In determining appellate attorneys fees, the Appeals Board considers the attorney’s time, effort, care, experience, skill and results in opposing the writ. The Appeals Board also considers the complexity of the issues raised by defendant requiring a response by applicant's attorney, the length of the reply (how many pages), and the number of cases cited. Where the issues are novel, for example, involving the interpretation of a new statute requiring an analysis of legislative intent, or an area of law which has published appellate cases containing holdings in opposition, or a complex issue of law intertwined with a complex factual pattern, or where the issues are numerous, a higher fee is awarded because the case is of "above average complexity."²

Hmmm... Let’s see here: "effort" and "care"? Did applicant's counsel properly object to questions, read a newspaper or fall asleep? (I’ve personally witnessed all three!)

"Skill and results"? A quick reading of the transcript should give a great deal of guidance on these factors!

"Complexity of the issues"? It's a deposition of an applicant, for crying out loud! How "complex" can it get before the applicant is entirely incapable of answering the questions?

Real Rates?
A review of the available case law suggests $250.00 is at or near the high end, even in expensive areas of California. ³

The Lesson
CAAA members everywhere are looking to increase their revenues. You can either help them (bad decision) or object. If the rate they request exceeds $250/hour (and it regularly does), the law is on your side. OBJECT!

Donald R. Barthel is a Founding Partner of Bradford & Barthel, LLP, as well as B&B's Rating & File Consultation Services. Mr. Barthel is an acknowledged expert regarding the AMA Guides to the Evaluation of Permanent Impairment and the 2005 PDRS. Much of his time is dedicated to teaching these topics to adjusters, human resource directors, employer representatives, attorneys and physicians throughout California and the United States. Have a PDRS or AMA Guides question? Call Don Barthel at (916) 996-1263 or email him at dbarthel@bradfordbarthel.com.

¹ Taken from 3/4/08 Report & Recommendation On Petition for Reconsideration, Haller v City of Riverside; expressly adopting and incorporating the WCJ’s reasoning, the WCAB denied reconsideration.

² Harvey v Pes Payroll (8/8/07) Opinion & Award of Additional Attorney’s Fees

³ See, for example, WCAB’s 8/8/07 Opinion & Award of Additional Attorney's Fees in Harvey v Pes Payroll, wherein applicant's counsel practiced in the fashionable and pricey Santa Monica area. Despite this—and well as the fact that he was (a) a "certified specialist" for over a decade, (b) practicing w.c. "almost exclusively" for over 20 years, and (c) currently "billing" $300/hour for depositions—the Commissioners ruled $250 was "fair.".

To Tell The Truth

2009-04-01T10:17:00.000-07:00

To Tell The Truth
by Tahmeena Ahmed, Esq.

Daniel Dailey (Tarzana) is putting yet another bad guy away!

A bench warrant just issued for the arrest of the most recent applicant who foolishly tried to lie to Dan.

Apparently Mr. Dailey is a student of Paulo Coelho.¹

Mr. Dailey knows how to look into the eyes of liars; he is well on his way to securing his seventh (or is it his eighth) perjury conviction. The complaint filed by the DA's office arose out of a simple deposition question posed by Mr. Dailey as he looked "directly into [applicant’s] eyes": "Sir, have you had any prior treatment in psych?" Mr. Dailey gave applicant the rope, and, with a stream of falsehoods, applicant hung himself out to dry! Interestingly, applicant's attorney did request a break to meet with his client. Apparently any attempt at "coaching" utterly failed!

Another one bites the dust! Congratulations Dan!

Tahmeena Ahmed is a Senior Partner of Bradford & Barthel and a Managing Partner of the Tarzana office.

¹ Paulo Coelho is the best selling Portuguese language author who has sold more than 100 million books in over 150 countries worldwide. His writings have been translated into 67 languages, and he wrote "No one can lie, no one can hide anything, when he looks directly into someone's eyes.&qwuot;

"I'll See You When I See You, My Friend"

2009-01-01T10:13:00.000-08:00

"I'll See You When I See You, My Friend"

The workers' compensation industry recently suffered a huge loss with the passing of Byron Jerome Wynn, who—along with his 8-year-old son, Alex—was tragically killed on the Artesia Freeway in Bellflower on December 6, 2008.

A mountain of a man with a heart to match, Mr. Wynn had worked as a Hearing Representative, mainly at the Los Angeles WCAB, since 1991 until his untimely death.

Known in workers' compensation circles for his smile and warm words of encouragement for everyone he met, Mr. Wynn was a beloved individual at AIG and the LA WCAB. The love and respect he earned in the industry were made obvious by the hundreds of mourners who attended his funeral on December 13, 2008. Amongst the speakers at the funeral was Mr. Aaron Rinehart, who worked with Mr. Wynn at AIG. There was not a dry eye when Mr. Rinehart recited the words that Mr. Wynn repeated so very often: "I'll see you when I see you, my friend."

Byron is survived by his wife (Alex's mother), Virginia McCoy Wynn, and his stepson, Everett White. Please address donations for the Wynn family to:

Emily Mach
Southern California Litigation Manager, W.C.
AIG Commercial Lines
One Mac Arthur Pl #500
Santa Ana, CA. 92707

Please make your check payable to Mrs. Virginia Wynn.

"Dude, Where's My... Witness?"

2009-01-01T10:10:00.000-08:00

"Dude, Where's My... Witness?"¹
by Donald R. Barthel, Esq.

The BIG trial is about to begin. The defense attorney (DA) scans the waiting room for the star defense witness (Star) to arrive. DA and Star have spoken about this case at great length. The matter cannot be won without Star. But where is Star?

"My witness will show up," mumbles DA to himself. "He's got to show up."

But when the judge looks to DA to begin his defense, Star is no where to be seen.

DA stutters.

DA stammers.

DA, scratching his head, recalls a couple of cites and mumbles something about Kuykendall and Tyler.²

DA asks for a continuance…

"Denied!" hisses the judge (was there a smirk on the WCJ's lips when DA suggested that Kuykendall and Tyler should be applied to defendants too?).

The dreamed-of take nothing is nothing but that... a dream, and a nightmare at that.

What happened?

Who knows?

Star got cold feet? Star caught a cold? Star was in a motor vehicle accident?

The answer really doesn't matter. How could this nightmare have been avoided?

Answer: The Friendly Subpoena.

Too many defendants—believing they can rely on their own defense witnesses to appear—fail to take the necessary precautions to avoid disaster.

Your witness may, and probably does, have every intention to arrive at the appointed trial time. But even the best laid plans sometimes go awry. If (when?) a witness fails to appear, the judge can and often will submit the case without the proposed testimony. By subpoenaing your own witness, you dramatically decrease the chances of the case being submitted without the proposed defense testimony! Even a good and reasonable excuse (flat tire, MVA, etc.) may be ignored by the WCJ if you have failed to plan for such a problem.

Plan Against Disaster

Phone your witness:
Advise your witness that a subpoena is on its way and that it is "friendly."³ Do your witness and yourself a big favor. Help them to avoid the shock of "being subpoenaed." Give them the "heads up." And let them know that this is for everyone's protection. Explain that, if they should unavoidably be forced to miss the trial, you can demonstrate to the WCJ that they have been subpoenaed and, thus, a continuance is proper.
Confirmation:
Along with the subpoena, send a confirming letter to your witness. Use it to memorialize the time and date of the appearance. Provide your witness with information as to how to contact you both at your office and - most importantly - at trial time. Now is the time to share your cell phone number!
Get It In Writing:
Along with the subpoena and confirmation letter, include a written "Confirmation of Receipt of Subpoena" that your witness can sign, date and return to you. A SASE (self-addressed stamped envelope) is a nice touch at this point.⁴
Get Witness Contact Information:
The last thing you'll want to worry about at trial is how to contact your missing witnesses. Request that your witness share his/her cell phone number so as to ensure you can contact them on the day of trial.

The costs of this plan? Minimal! A couple of letters, a subpoena, a self-addressed stamped envelope…these make up one of the most cost-effective insurance policies available.

Can you really afford to have Star Witnesses miss their big day in court?

Donald R. Barthel is a Founding Partner of Bradford & Barthel, LLP, as well as B&B's Rating & File Consultation Services. Mr. Barthel is an acknowledged expert regarding the AMA Guides to the Evaluation of Permanent Impairment and the 2005 PDRS. Much of his time is dedicated to teaching these topics to adjusters, human resource directors, employer representatives, attorneys and physicians throughout California and the United States. Have a PDRS or AMA Guides question? Call Don Barthel at (916) 996-1263 or email him at dbarthel@bradfordbarthel.com.

¹Apologies to the 2000 film starring Ashton Kutcher, Seann William Scott and Jennifer Garner: "Dude, Where's My Car?," which - per a New York Times review - was "lazy, flighty and disconnected" and "strictly lightweight.." See http://movies.nytimes.com/movie/review?res=9B0DE2D81639F935A25751C1A9669C8B63.

²Kuykendall vs. WCAB (2000), 79 Cal. App. 4th 396; 94 Cal. Rptr. 2d 130; 2000 Cal. App. LEXIS 222; 65 Cal. Comp. Case 264 stands for the proposition that, "based on the constitutional mandate to accomplish substantial justice, the WCJ has a duty to develop an adequate record." Similarly, Tyler vs. WCAB (1997), 56 Cal. App. 4th 389; 65 Cal. Rptr. 2d 431; 1997 Cal. App. LEXIS 562; 62 Cal. Comp. Case 924, discusses the WCJ's duty to properly develop the trial record and declares the principle that allowing full development of the evidentiary record to enable a complete adjudication of the issues is consistent with due process in connection with workers' compensation claims.

³To the unseasoned witness, receiving a subpoena can be an intimidating experience. With all its legal gobbly-gook and mumbo-jumbo (subpoena translates to "under punishment" in Latin), a subpoena can be a rather scary order from a court for the recipient to appear!

⁴This confirmation can be short and sweet: "I, witness name, confirm that I have received a subpoena to appear at trial in the matter of name of case. I agree to appear and testify in this matter on date."

AHM District Office Move

2009-01-01T10:06:00.000-08:00

AHM District Office Move
by Donald R. Barthel, Esq.

You can't believe everything you read...

According to the Department of Industrial Relations website, the Anaheim WCAB District office is located at

1661 N. Raymond Avenue Ste 200, Anaheim, CA 92801-1162

WRONG!

Although the Anaheim office was on Raymond for many years, it moved on Monday, December 22, 2008.

The new address:

1065 N. PacifiCenter Dr., Suite 170
Anaheim, CA 92806
Phone: 714-414-1800

Although the main reception area is on the first floor, WCAB offices are now on the first and second floors.

Would somebody please tell the Department of Industrial Relations?

Donald R. Barthel is a Founding Partner of Bradford & Barthel, LLP as well as B&B's Rating & File Consultation Services. Mr. Barthel is an acknowledged expert regarding the AMA Guides to the Evaluation of Permanent Impairment and the 2005 PDRS. Much of his time is dedicated to teaching these topics to adjusters, human resource directors, employer representatives, attorneys and physicians throughout California and the United States. Have a PDRS or AMA Guides question? Call Don Barthel at (916) 996-1263 or email him at dbarthel@bradfordbarthel.com.

DEU Asserts Raters Have "Discretion"! (Uh Oh!)

2008-07-01T10:02:00.000-07:00

DEU Asserts Raters Have "Discretion"! (Uh Oh!)
by Donald R. Barthel, LLP

The 2005 Permanent Disability Rating Schedule (PDRS) has been in effect since 1/1/05. Yes, it has been nearly 4 years since its inception (where has the time gone?)!

Have you mastered rating for DFEC¹, occupation, and age? Are you sure?

How about this little brain teaser?

Per the 2005 PDRS, "[m]ultiple impairments involving the hand or foot are combined using standard AMA Guides protocols."² The AMA Guides (5th), instruct:

"The total hand impairment rating is determined by adding the hand impairment values contributed by each digit." (p. 440, AMA Guides)

While the foregoing appears relatively simple, issues arise when one recognizes that more than one occupational variant may come into play for one rating string, thereby giving rise to the question: Which occupational variant is used?

Imagine your rating the 2006 injury of "Butter Fingers" Bob, a 37 year old electrician (Group 380), who managed to amputate two fingers:

Index Finger, amputated @ MP joint = 100% finger = 20% hand³
Little Finger, amputated @ DIP joint = 45% finger = 5% hand⁴

Per the AMA Guides, these impairments are added at the hand level and then converted to whole person impairment:

20% hand + 5% hand = 25% hand = 23% UE = 14% wpi

Per the 2005 PDRS, the impairment numbers associated with these individual finger amputations (and their resulting occupational variants) are:

Index Finger = 16.06.02.02 (giving rise to a 380I)
Little Finger = 16.06.05.02 (giving rise to a 380H)

The problem arises because neither 16.06.02.02 nor 16.06.05.02 are used in this case. Rather, the 2005 PDRS has an impairment number that is reserved for cases involving multiple finger amputations: 16.05.02.00. All things being equal, this impairment number, when adjusted by a 380 occupational number, gives rise to a 380H. Thus, in the case of "Butter Fingers" Bob, this matter might be rated as follows:

16.05.02.00 - 14 - [1]15 - 380H - 19 - 19% PD

Is that fair to "Butter Fingers"? The DEU answers this question with an emphatic, "No way!" The majority of the impairment (20 percent hand for the index finger, as compared to the 5 percent hand for the little finger), relates to the index finger. As noted above, if rated alone, the index finger would be rated using a 380I. In short, by uncritically applying 16.05.02.00's 380H (rather than 16.06.02.02's 380I) we are decreasing the overall value that would otherwise be awarded to the index finger.

In this scenario, the DEU has determined that they maintain the "discretion" to assign a fairer variant. This can make a significant difference. Consider:

16.05.02.00 - 14 - [1]15 - 380H - 19 - 19% = $16,215

versus

16.05.02.00 - 14 - [1]15 - 380I - 21 - 21% = $18,515

That's right! The DEU's "discretion" just cost you $2,300!

And now you know...the rest of the story!

Donald R. Barthel is a Founding Partner of Bradford & Barthel, LLP as well as B&B's Rating & File Consultation Services. Mr. Barthel is an acknowledged expert regarding the AMA Guides to the Evaluation of Permanent Impairment and the 2005 PDRS. Much of his time is dedicated to teaching these topics to adjusters, human resource directors, employer representatives, attorneys and physicians throughout California and the United States. Have a PDRS or AMA Guides question? Call Don Barthel at (916) 996-1263 or email him at dbarthel@bradfordbarthel.com.

¹Diminished Future Earning Capacity.

²Page 1-11, 2005 Permanent Disability Rating Schedule.

³Figure 16-5, p. 443 and Table 16-1, p. 438

⁴Figure 16-5, p. 443 and Table 16-1, p. 438

⁵Assumes maximum wage earner for permanent disability purposes.

Help! This MPN Is Out To Get Me!

2008-04-01T16:18:00.000-07:00

Help! This MPN Is Out To Get Me!
by Louis Larres, Esq. and Scott Rountree, JD

I'm sure you've often wondered during a quiet moment alone, "Hey, are these Medical Provider Networks even constitutional?" Or perhaps you've worried, "If I litigate and lose on AOE/COE, have I waived the right to require applicant to treat in my MPN?"

You haven't? Good news! Someone else has wondered about, worried about, and litigated these issues for you–someone with too much time on his hands.¹

From the Fresno WCJ to the California Supreme Court, B&B recently defended against an applicant who was bound and determined to undercut your ability use your MPN. Applicant claimed MPNs could not be used in denied cases. Of even greater concern, applicant attacked the constitutionality of MPNs themselves. Applicant went down in flames.²

The Facts

Applicant ("Mary") won the AOE/COE aspect of this pre-SB 899 case at trial. Mary's PTP was not a MPN member. Thus, Mary was advised her care would be transferred from her PTP to the MPN. Outraged, Mary made clear she would fight. At the trial, Mary's attorney announced this was to be a "test case" as to the constitutionality of MPNs. Unimpressed, the WCJ ordered treatment transferred to the MPN. The WCAB denied applicant's Petition for Reconsideration. The Court of Appeals summarily denied her petition for Writ of Review. Ever persistent, the applicant filed a Petition for Review before the California Supreme Court. This, too, was denied.³

Despite the defense wins at every level, it is essential that you familiarize yourself with Mary's arguments. Rest assured, they will soon be heard at a WCAB District Office near you. ⁴

The Arguments

Liberal Construction?
Applicant began with a tried-and-true battle cry: "liberal construction."

CAAA members are eager to cite the first part of Labor Code 3202. It states that workers' compensation laws are "liberally construed" in favor of the applicant. However, as they teach during the first year of law school, the first "rule of statutory interpretation" is simple: read the statue, the entire statute.⁵ Labor Code 3202 goes on to state liberal construction is for "the purpose of extending benefits for the protection of persons injured in the course of their employment."

Labor Code 3202 does not grant injured workers the right to treat in perpetuity with whomever they wish! There was no suggestion that Mary was being denied needed treatment. Medical care was being extended. The question was, treatment provided by whom?

ANSWER: Liberal construction does not defeat MPNs.
MPNs Apply To Post-12/31/04 Injuries Only?
Mary argued Regulation 9767.9 is inconsistent with Labor Code 4616 and represents an improper expansion of the rights set out in Labor Code 4616.2.

In brief, Labor Code 4616 grants employers the right to establish an MPN. Labor Code 4616.2 sets forth the "continuity of care" provisions. Subsequent to the passage of these provisions, the Administrative Director issued regulations to assist in the implementation of these statutes. Among these is Regulation 9767.9, which dictates the mechanism for transferring care into the MPN.

Mary correctly noted that an administrative body, such as the Administrative Director, may not implement regulations that alter, amend, enlarge, or otherwise impair the scope of a statute. Inasmuch as there was no proper notice of defendant's MPN, applicant argued that Regulation 9767.9 was improper because it changed the intent and scope of Labor Code 4616.2, which was only to apply to post-12/31/04 dates of injury.

B&B countered Mary's argument by noting Labor Code 4616 and 4616.2(b) both reference SB 899's Section 47 which–as we all know–stresses the urgency of this legislation. Other than this reference, SB 899 is silent on how to transfer ongoing care to a newly created MPN. Thus, it was necessary for the Administrative Director to create such a mechanism. She did so via Regulation 9767.9 ("Transfer of Ongoing Care into the MPN").

ANSWER: All injuries (pre- and post-12/30/04) may be transferred to an MPN.
MPNs Are Unconstitutional?
Noting that the California Constitution provides for a workers' compensation system, Mary argued that workers' compensation benefits, including treatment, are a "fundamental right."⁶

California courts have never recognized workers' compensation as a fundamental right. The language in the California Constitution referenced by Mary simply imbued the legislature with the power to amend, delete, or enact laws to carry out a constitutional mandate (that is, the creation of a workers' compesnation system); it is not a guarantee of individual entitlement to a benefit in that system. As the WCAB noted in the en banc Babbitt decision⁷,the MPN statutes made "only a procedural change in the law." There is no infringement on any substantive right.

ANSWER: MPNs are constitutional.
Denial of AOE/COE Waives MPN Rights?
Perhaps the most troubling of Mary's arguments was the suggestion that because defendants initially denied the injury AOE/COE, this denial gave rise to a permanent waiver of any future attempt to assert medical control.⁸

Again, B&B prevailed, this time by noting that Mary had overlooked the fact that Labor Code 4616 does not distinguish between denied and accepted cases. Why should a court make such a distinction when the legislature has not? Mary was arguing for a dichotomy that finds no support in either the statute or logic!⁹

ANSWER: MPNs are available to all cases, accepted and denied.
MPNs Violate The Doctor-Patient Relationship?
Mary insisted that defendants' right to demand treatment through an MPN was trumped by her interest in an established "doctor-patient relationship."

Mary's argument focused on the potential for treatment delay if she were forced to transfer to the MPN. This argument, of course, ignores reality. Treating physicians are changed routinely (and are, in most cases, fungible). Further, Mary offered no evidence that any harm or prejudice would occur.

Mary argued a new doctor would need to review endless medical records to get up to speed. She failed, however, to translate this record review into an inevitable treatment delay.

ANSWER: Wrong!

In the end, none of Mary's arguments carried the day:

The WCJ ordered Mary's care transferred to the MPN.
The Court of Appeal summarily denied Mary's petition.
The Supreme Court summarily denied Mary's petition.

The message?

Your MPN is safe for now (protected, as it is, by Bradford & Barthel attorneys). And now you can use those quiet moments alone wondering and worrying about...anything else!

Louis Larres is Managing Attorney of Bradford & Barthel's Fresno Office. Scott Rountree is Hearing Representative for Bradford & Barthel's Tarzana office.

¹ The authors of this article strongly resemble such individuals!

² Or "up in smoke," depending on your choice of vernacular!

³ You sensing a pattern here?

⁴ You can thank your favorite CAAA member for this!

⁵ Followed by the second rule: re-read the statute.

⁶ "Fundamental right" is legalese that triggers a type of analysis by a reviewing court called "strict scrutiny." For a statute involving a "fundamental right" to survive "strict scrutiny," that law must promote a "compelling government interest,", be "narrowly tailored" to meet that goal, and be the "least restrictive means" of accomplishing the objective. This is a tough standard. Its application usually sounds the death knell for the statute being reviewed.

⁷ See Babbitt v. Ow Jing dba National Market and Golden Eagle Insurance Co. (2007), holding that a defendant may satisfy its obligation under Labor Code section 4600 to provide reasonable medical treatment by transferring an injured worker into an MPN in conformity with applicable statutes and regulations regardless of the date of injury or the date of an award of future medical treatment.

⁸ Applicant ignored the fact that defendants had issued a good faith, timely denial pursuant to the law. There was no suggestion of a frivolous denial.

⁹ Even "legal arguments" in California's workers' compensation occasionally require a modicum of logic!

$$$$ Tens of Millions in Savings $$$$

2008-04-01T16:17:00.000-07:00

$$$$ Tens of Millions in Savings $$$$

by Mark Fletcher, Esq.

Don Barthel recently announced that B&B's Rating Services "has literally identified tens of millions of dollars in savings for our clients." Per Don, "PTPs and medical-legal examiners in California continue to misapply the AMA Guides. Whether this represents simple mistakes is not always clear, but the result is. About eight out of ten of the reports we review overstate the true permanent disability value."

What is the largest saving identified in a single case? "We've seen reports that literally rated 100 percent. In one case, after a full analysis was performed, we were able to demonstrate that, per the AMA Guides, only 12 percent [PD] was justified. That's over a $1,500,000 swing!"

Honesty is the Best Policy?
The rating service recently compiled and analyzed all reports assigned over approximately sixteen months. The resulting chart below demonstrates the dramatic results. Explained Phil Billman, B&B's Rating and AMA Guides expert, "If a medical report–which is represented by a dot on the chart–falls on the diagonal line, this means the doctor's analysis was correct. It doesn't happen often. If, however, the dot falls below the diagonal line, this means we were able to demonstrate the report overstated that true level of impairment and PD. That's typically the case."

Phil Billman is also proud of the dots above the diagonal. "These dots represent the very limited number of cases where the doctor's report actually understates the level of impairment and PD per the AMA Guides."

If the B&B Rating Service has established its reputation by demonstrating–time and again–that doctor reports are overstating the true PD value, why is Mr. Billman gratified by the occasional B&B analysis that identifies greater PD liability? "It's simple. We maintain a reputation as an honest, neutral third party. If the AMA Guides requires that the report rate is higher or lower than the doctor has indicated, that's what we report. This way everyone–the adjusters, defense attorneys, applicants attorneys, DEU and judges–know they can rely on our honesty."

How do clients respond when they learn that they owe more, rather than less, than was expected? "The clients we work with are professionals who understand their jobs. They want the applicant to get exactly what is owed: nothing less and nothing more. I think they appreciate that they can trust us to provide an accurate, trustworthy answer," reflects Phil.

Haven't I Seen That Argument Before?
Phil states that he "sees patterns" in doctors' reporting. "We have developed a valuable storage bank of information on the doctors whose work we've analyzed. If, for example, I'm working on a report by Dr. S*******¹, I can review the dozen or more prior reports by Dr. S******* that we've previously analyzed. In this way we can quickly pick-out the doctor's patterns of mistakes, misreading of the AMA Guides, etc. This dossier has proven highly valuable, both in terms of critiquing reports and in terms of recommending to clients which doctors to use and, more importantly, which doctors to avoid."

Can a B&B Analysis Really Help?
"Of course," says Phil Billman, "consider the evidence. Our clients regularly report success in getting corrected supplemental reports and cross-examining the doctors. They use our analyses to draft a request for a supplemental or prepare for the cross-examination. In fact, defense firms throughout California regularly use our services to assist their attorneys to prepare for a doctor's deposition."

Chuckling, Phil Billman recommends considering the anecdotal evidence as well. "The California Society of Industrial Medicine & Surgery, representing California doctors, sent a letter to the Division of Workers' Compensation asking how they [the doctors] should respond to reviewers such as B&B's Rating & File Consultation services. The DWC wasn't terribly sympathetic. In fact, the DWC said this was a perfectly appropriate defense strategy and that the doctors should be required to correct reports that we've demonstrated are faulty."²

Have the Doctors Gotten Better?
California's workers' compensation doctors have been applying the AMA Guides since January, 2005. With well over three years' experience, is their work getting better? "No!" is the emphatic answer from Don Barthel. "However, they are getting trickier in their efforts to increase PD. Add-ons such as skin disorders and sleep arousal³ are increasingly found in reports generated throughout the state. Happily, we know exactly how to combat these efforts via proper application of the AMA Guides."

Congratulations B&B's Rating & Consultation Services! No wonder the clients are singing your praises!

Mark Fletcher is Bradford & Barthel's Managing Attorney.

¹ Name changed to protect the guilty.

² Susan Gard, DWC spokesperson, reportedly answered: "The simple answer is we don't think we have authority to prohibit the defense strategy. If a secondary evaluation shows problems in an [AME's] or [QME's] report, that's something they should correct. If the purpose is to get an inaccurate report corrected, they (the defense) should do that. [I]t's the right of the insurers to look for evidence that strengthens their case..." [Source: Workcompcentral "Reviews of Med-Legal Reports Have Docs Wary" (10/19/06).]

³ For a detailed discussion on defending against arousal and sleep disorder claims, see "Keep CAAA Out of the Bedroom", B&B BLOG, March/April 2006, Vol. 2, No. 2, and "Epilogue: Keep CAAA Out of the Bedroom," B&B BLOG, May/June 2006, Vol. 2 No. 3]

Bradford & Barthel's BLOG

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Elayne Valdez v. Warehouse Demo Services

Legal Update: Duncan is "NONSENSICAL"

Medical Marijuana and LC §4600 aka Are You HIGH?

"Illegals’" Entitlement to Voucher/PD Increase...To Pay or Not to Pay?

Uncle Sam Wants You!

100 Percent Trouble: The Expensive Future of PD

Daniel Micheal Dailey named Managing Attorney of the Sacramento Office

Guzman & 6th DCA: WCAB Rubberstamp or Limitations on Misapplying the Guides?

Intl Awards Salute B&B's Tech Savvy

To Answer or not to Answer...

Patricia Carlos, Esq. Named Asst Mng Atty in Tarzana

The AME Trap (aka Why Agreed Medical Examiners Make Me Disagreeable)

Apportionment - Simplified - The Glass of PD Method

TOP SECRET - Do NOT Read! aka "Collaboration in the Cloud - A Quick Look at Knowledge Sharing"

I Spy...for Free!

Spinal Surgery Authorization Process OR Pain In The Neck?

B&B Announces Newest Partners

Technology Forecast: Clouds Ahead

The DEU Violates the Labor Code and Costs You Money (Here's How to Prove It)

B&B Speeds Up Litigation Process; Saves Clients Money!

B&B Scores "Split Decision" in Almaraz/Guzman

Ogilvie I and II are "Dead on Arrival"

The Future of Almaraz/Guzman? (Reading the Crystal Ball)

Objecting to Untimely PQME Reports: A Ticking Time Bomb

How Much Is A CAAA Member Really Worth?

To Tell The Truth

"I'll See You When I See You, My Friend"

"Dude, Where's My... Witness?"

AHM District Office Move

DEU Asserts Raters Have "Discretion"! (Uh Oh!)

Help! This MPN Is Out To Get Me!

$$$$ Tens of Millions in Savings $$$$