Fraud and People v. Snow

The State of California has taken many steps in recent years and legislative sessions to lessen the amount of fraud perpetrated in the workers’ compensation system. During the fiscal year of 2015-2016, the California Fraud Division reported over 5,300 cases of suspected workers’ compensation fraud and made 249 arrests. Although the vast majority of employees who sustain a work-related injury have valid claims, there are some unfortunate cases when the employee is defrauding his or her employee. When this happens, employees may face criminal prosecution under a variety of legal theories.

In People v. Snow, the employee faced a number of repercussions for her fraudulent behavior. In that case, the defendant worked at Trader Joe’s stocking shelves, gathering shopping carts from the parking lot, customer service, and other similar tasks. The defendant made a claim for workers’ compensation claiming that her wrist hurt and she had sustained injury from repetitive action required in performing her job duties. The defendant’s claim was approved for three months of disability benefits. After the defendant returned to work, she claimed on her first day back to have injured her back while bringing three shopping carts in from the parking lot. Although she was later cleared to return to work, she did not do so, and instead sought treatment from a new doctor, claiming she had pain while doing household tasks such as laundry, dishes, and driving – claims she repeated during a deposition. The supervisory claims adjustor determined the second claim required further investigation and hired a private investigator. The investigator observed her at the beach, lifting a paddleboard from the roof of her SUV and carrying it and the paddle approximately 150 feet to the beach. After paddleboarding for approximately 45 minutes, the defendant returned to shore and carried the paddleboard and paddle back to the SUV and strapped the on the roof herself. Nevertheless, the defendant persisted in telling her doctors she could not lift things over her shoulder or stand for prolonged periods of time, which she repeated during depositions. Ultimately, the defendant was charged with perjury after the video of the defendant at the beach completely undermined her claim of disability. Thereafter, the defendant was charged not only with insurance fraud but also with perjury based on statements made at depositions concerning her second workers’ compensation claim. She was ultimately convicted of two counts of perjury as well as three counts of making false or fraudulent statements to obtain workers’ compensation benefits. Although the defendant then appealed her conviction claiming that this violated her right against double jeopardy as the convictions were based on the same incidents, the court disagreed and affirmed her convictions.

Workers’ compensation fraud is a serious problem and you should take all steps to protect your business. Contact me today at (714) 516-8188 if you wish to discuss fraud and protect your  business.

IMR in 2016

When an employee is injured on the job, he or she will need to get medical treatment to proceed with a workers’ compensation claim. The physician will make an assessment of the injury and decide what type of course of treatment will be best to treat and hopefully cure the injured employee. In some situations, an employer can request an Independent Medical Review of the physician’s diagnosis and treatment plan. When a claim is made for workers’ compensation, the claim must go through a “utilization review” process in order to confirm the treatment is medically necessary before the claim is paid out. If the claim is denied, the employee may request an IMR. If an employer believes the claim should not have been approved, the employer may request an IMR. The purpose of instituting the IMR system was done with an eye toward reducing workers’ compensation disputes and speeding settlement, in order to help ease the congestion in the court. A recent analysis done of IMR volume shows that the process is perhaps not meeting its intended purpose.

The California Workers’ Compensation Institute conducted an analysis of almost half a million IMR decision letters from 2014, 2015, and 2016. These letters were from applications submitted to the state after a utilization review physician’s medical service was modified or denied. In 2016, IMR was at record high levels, with 10,477 more cases in 2016 than in 2015. The IMR analysis showed that in over 90% of cases, the IMR upheld the decision to modify or deny a requested medical service. The types of services did not change much, with prescription drug requests comprising over half of all IMRs, 28.5% of which were for opioids. The rate at which the IMRs upheld the decision made by the utilization review varied from 78.9% for evaluation services to 93.6% for acupuncture. The analysis also found that IMR requests varied widely by geographic region, with Los Angeles County and the Bay area representing a disproportionately large amount of IMR requests vis a vis their percentage of involvement in workers’ compensation medical services across the state. Similarly, areas with low population typically had a disproportionately small amount of IMRs, as did Orange County and San Diego.

If you own your own business, you need an experienced attorney to help you navigate the system. Call us today at (714) 516-8188. I can help you understand your business’s obligations and the claims process.

Communication versus Information – Maxham vs. Department of Corrections

 

In an overwhelming majority of court cases, the parties settle before ever having to see the inside of a court room. The field of workers’ compensation is no exception. Attorneys for both sides are typically experienced and are skilled in obtaining reasonable settlement agreements. There is a lot of paperwork and material exchanged by the attorneys in an effort to get to a settlement or prepare for trial. In some cases, the parties may agree to use an “Agreed Medical Evaluator” in order to help get to a proper settlement. The AME will examine and evaluate the injured worker and determine the level of disability or impairment. In preparation for this evaluation, the attorneys may also send certain letters to the AME. California Labor Code 4062.3 contains rules about what can and cannot be sent to the AME before the evaluation, including medical records from current and previous treating physicians. The attorney may also provide a letter “outlining the medical determination of the primary treating physician,” and a copy of that letter must also be served on the opposing party at least twenty days before the evaluation. Subsection (d) states that if the opposing party objects within ten days to any non-medical records or “information” that is proposed to be sent to the AME, the information shall not be sent unless a judge approves it. An attorney may communicate with the AME without the approval of the other attorney for purposes such as furnishing records and reports or other “nonsubstantive matters.” The difference between “communication” and “information” is therefore crucial, as communication without the “go ahead” from the opposing side is permissible, whereas passing information is not.

In Maxham v. California Department of Corrections and Rehabilitation, the WCAB was faced with the task of clarifying the difference between communication and information. In that case, the applicant’s attorney provided the employer’s attorney with a copy of the proposed “communication” to the AME, which included factual assertions, citation to case law, and summaries of legal principles. The defendant’s attorney timely objected to the letter and asked for portions to be redacted. The attorney for the employee sent the unredacted letter. The WCAB determined that “information” in these cases constitutes records prepared or maintained by a physician and/or medical and nonmedical relevant records. A communication can become information if it contains, references, or encloses medical or non-medical records that are otherwise “information.”

If you have questions about workers’ compensation, call us today at (714) 516-8188. We will discuss your business and what you can do to make sure you are facing workers’ compensation issues head on.

Teachers and Workers’ Compensation

The workers’ compensation system is designed such that an employee may receive proper compensation for injuries that “aris[e] out of and in the course of employment.”  The whole system is designed around the idea that if an employee is injured because of actions taken on behalf of an employer, the employer should assist in taking care of the cost of the employee’s health care and compensate him or her for temporary or permanent disability arising from such an injury. The real issue can come into play, however, when deciding whether an injury really did arise out of and in the course of employment, as happened for one teacher.

This was precisely the central issue in an unpublished case styled Grawe v. Culver City Unified School District. There, the applicant was a school teacher. She sought a determination that she had sustained an 82% permanent disability due to hypertension and psoriatic arthritis. The AME found that “it was medically probable that applicant developed viral cardiomyopathy as a result of contracting respiratory tract infections because of being exposed to communicable viruses from her students.”  As a result of the repeated virus illnesses, the applicant’s hypertension was triggered and exacerbated. In other words, the applicant claimed because she got so many colds from her students as a teacher, she sustained a permanent disability. Her claim was that but for this repeated exposure, she would not have become permanently disabled, thereby making this a work-related injury entitling her to workers’ compensation benefits for her permanent disability. The court looked to the reasoning from a case called LaTourette v. Workers’ Compensation Appeals Board and Long Beach Community College District. The court there held “When an employee engages in a special activity that is within the course of employment, an injury suffered during the activity . . . also arises out of the employment.”  It was essential that the employee was at an increased risk compared to the general public of that danger. The court in Grawe determined that the teacher was, indeed, at increased personal risk for repeated viral infections because of being exposed to her students. Her claim was, accordingly, upheld.

If you have questions about these new regulations, contact me today at (714) 516-8188. We can review your business and make sure that you are in compliance with the reporting requirements.

Apportionment and Genetic Causation

Despite all of the careful precautions and preparations, work-related injuries are an inevitable part of owning a business. Employers always reduce risks to their employees when possible, but accidents happen. After an employee suffers a work-related injury and files a claim for workers’ compensation, it is possible that the medical documents will reveal the employee has a pre-existing injury or condition that was aggravated by the work-related injury. When this happens, the portion of the disability attributable to the pre-existing condition must be apportioned. Apportionment means that a medical professional will make a determination on how much of the worker’s injury and disability is attributable to the work-related injury and how much is attributable to the pre-existing condition. A recent case before the Workers’ Compensation Appeals Board dealt with the issue of apportionment and genetic conditions.

In City of Jackson v. WCAB (Christopher Rice), a police officer who had served on the force for five years filed a claim, stating that repetitive bending and twisting of his neck while on the job had resulted in an injury, and was the cause of pain to his neck, shoulder, arm, and hand. Medical examinations and x-rays revealed the officer had a degenerative disc disease, cervical radiculopathy, and cervical disc disease. The QME report indicated that genetic issues were a causative factor for this injury, and apportionment was appropriate. The trial judge apportioned 49% of the injury to the officer’s genetic condition, but the WCAB reversed that decision. The court ruled that “finding causation on applicant’s ‘genetics’ opens the door to apportionment of disability to impermissible immutable factors.”  The court found that relying on the QME report for apportionment was inappropriate in this case without specific, identifiable factors. The WCAB’s decision was appealed by the employer and was heard by the Court of Appeals. The Court of Appeals determined there was “no relevant distinction” between allowing apportionment due to non-industrial pathological changes and allowing apportionment due to a degenerative genetic condition. The court accordingly held that apportionment was appropriate in this case, even though it was based on a genetic condition. The court did not address whether certain anti-discrimination statutes prohibited apportionment due to genetic condition, as the issue was not raised in the lower court.

Apportionment is just one of many complicated issues in workers’ compensation Contact us today at (714) 516-8188 to talk about claims facing your business.

Timeliness of IMR

When an employee sustains a work-related injury, a complicated set of procedures is set into motion. An employee must receive treatment, an employer must complete paperwork, take witness statements, and submit a claim to its workers’ compensation insurance provider. While an employee receives medical treatment, his or her expenses for medical appointments, continuing treatment, and prescription medication will be submitted to the workers’ compensation insurance company. The claim will then go through a process called “utilization review,” wherein the insurance company will decide if the course of treatment is medically necessary. If the insurance company decides that the treatment is not necessary, it may modify or even outright deny the request for treatment. In such a case, the employee may then request an Independent Medical Review, or “IMR.”  During an IMR, the employee’s medical file is submitted to an independent medical professional who will then review the file and make a determination whether the utilization review made the right decision as to whether the treatment should be modified or denied.

California Labor Code 4610.6 provides several different time requirements for IMRs. Subdivision (d) provides that for any medical dispute not involving the drug formulary, the IMR must be conducted within thirty days of receipt of the request for review and the supporting documentation. A recent case styled Baker v. Workers’ Compensation Appeals Board, Sierra Pacific Fleet Services, et al. took on the issue of timeliness of IMRs and the impact that the failure to conduct the IMR in accordance with the statute’s timelines could have. In that case, the worker was injured after falling over some tools at work. He injured his knee, neck, and shoulder. His physician prescribed certain medication, but a utilization review recommended they be denied. On March 19, 2014, the worker requested an IMR. The administrative director failed to uphold the denial until July 21, 2014. The worker appealed this determination and the workers’ compensation judge ordered a new IMR. The new IMR again upheld the utilization review. The worker again appealed. The WCJ determined that the IMR determination was untimely under 4610.6, but that did not mean that the IMR was de facto invalid. The higher court agreed, and held that “an untimely IMR determination is valid and binding on the parties.”

The workers’ compensation process can be complicated. If you have a question about your case and the IMR process contact me today at (714) 516-8188.

Frances Stevens v. Outspoken Enterprises and Home Health Care

Workers’ compensation is designed to and does cover a wide variety of treatment and types of care for workers who have sustained a work-related injury. Workers and providers can apply for payment for treatment associated with the care, and in some cases this will include home health care. Home health care may be required where an employee sustains an especially severe injury. In Frances Stevens vs. Outspoken Enterprises, Inc. (State Compensation Insurance Fund), the issue was whether it was proper for the Administrative Director to deny the plaintiff’s request for home health care based on an Independent Medical Review.

In this case, the plaintiff employee sustained a work-related injury. After being examined by her own physician, the physician recommended and requested home health care services. The employer requested an Independent Medical Review of this determination. The IMR applied the 2009 Medical Treatment Utilization Schedule Chronic Pain Medical Treatment Guideline and denied the plaintiff’s request to have the cost of her home health care covered under worker’s compensation. The court in a May 2017 opinion noted that there was extensive evidence that her need for home health care was “compelling,” and included extensive expert testimony to that effect. The court determined that the Administrative Director was wrong in applying the guideline and sent the case back to the lower court for further determination. The court stated that if the lower court decided the Administrative Director was wrong in denying the home health care after reviewing the available evidence, it may be appropriate to have a new IMR conducted.

The court ultimate determined that the 2009 Medical Treatment Utilization Schedule Chronic Pain Medical Treatment Guideline was not a “medical treatment necessity standard,” but rather was a standard for Medicaid reimbursement, and the decision was outside the Administrative Director’s authority, pursuant to labor code section 5307.27. The court went on to point out that it was contrary to labor code section 4600(h) and California case law. The court held that the guideline should not have been “summarily applied.”  Instead, the request should have been evaluated within the requirements of 4610.5(c)(2) and the MTUS.

 

If you have questions about the workers’ compensation system and whether your business is obligated to cover certain types of care, you should discuss this with an experienced attorney. Call us today at (714) 516-8188 for an appointment to talk about your business.

Changes to Drug Formulary Starting January 1, 2018

After a worker sustains a work-related injury, he or she will receive a treatment from a large range of providers, depending on the type of the injury. The type of treatment can range from psychological treatment to surgery to chiropractic treatment. Often, the treatment often includes prescription medication to treat and address any number of conditions that may have arisen from the work-related injury and subsequent treatment. In recognition of the widespread use of prescription medication in treatment of work-related injuries in the workers’ compensation system, the California legislature has created new laws with requirements to adopt a new drug formulary.

Drug formularies are used in both health insurance and workers’ compensation insurance fields. A drug formulary is, quite simply, a list of medications. The list will provide what types of mediations are approved and covered under the insurance and what type are not. Just because a worker is prescribed a medication that is not on the approved list of a drug formulary does not mean that the medication will not be covered under workers’ compensation, merely that the worker may have to take additional steps to have the cost of the medication covered. The purpose of a drug formulary is to attempt to cut costs to the workers’ compensation system and in some other states has seen other benefits such as a reduction in the number of opioid prescriptions.

Assembly Bill 1124 mandated the adoption of an evidence-based formulary by the DWC. After an initial comment period, the DWC has modified the proposed regulations in order to make them more clear and to add more detail. The comment period ended on August 2, 2017. There are many changes the DWC is considering making. These changes include:

  • Making the effective date for the new formulary January 1, 2018;
  • Changing drug designations from “preferred and non-preferred” to “exempt and non-exempt;”
  • Phased implementation for the formulary;
  • Clarification of particular dispute resolution processes; and
  • Updated the drug listings.

When treating an injured worker, a medical provider may reference the drug formulary, or he or she may not. It is up to the insurance company to determine whether or not the drug is on the exempt or non-exempt list and whether the company may require additional steps from the injured worker before covering the cost of the medication.

If you have questions about your business whether it is required to cover the cost of certain medication for injured employees, contact me today at (714) 516-8188. We can discuss your business and your responsibilities.

Costs Workers’ Compensation Benefits Are Meant to Cover

Every employer does his or her best to make the working conditions at his or her place of business as safe as possible for customers and employees. Unfortunately, even with the most meticulous of precautions, injuries will happen. When an employee suffers a work-related injury, that worker may file a workers’ compensation claim. There are some specific costs that workers’ compensation is meant to cover.

First, workers’ compensation benefits are meant to cover the cost associated with the medical attention required to addressed the worker’s injury. These costs can vary wildly. Naturally, the immediate costs such as emergency room bills, ambulance costs, or just the immediate bills associated with receiving medical attention fall under this category. However, additional costs associated with on-going care may also be covered. This could include prescription medication, chiropractic care, or physical therapy. Surgery, specialist treatment, and durable medical equipment all are also meant to be covered by workers’ compensation.

Next, lost wages also may fall under workers’ compensation. An employee may be unable to work after a work-related injury. This inability could be temporary or permanent, and be partial or total. There are specific formulas provided by the law to assist in determining the amount of disability and how much an injured worker may be entitled to receive in the long-term.

In the worst-case scenario, workers’ compensation will also cover funeral costs and death benefits for a worker who passes away as a result of a work-related incident. Death benefits can extend to a deceased worker’s surviving immediate family, and the amount that the family will stand to receive from workers’ compensation is set by statute.

Conversely, there are costs that workers’ compensation and workers’ compensation insurance will not cover. Workers’ compensation insurance will not assist your business with the costs associated with finding, training, and paying a replacement employee. The burden of having to fill the gap left by an injured worker falls on your business. Penalties for OSHA violations, as well as law suits under 132a are also not covered by insurance. Although a laudable goal, workers’ compensation will also not help your business improve safety conditions at your business following the injury.

Understanding what workers’ compensation and insurance are meant to cover will help you make a plan for your business’s future. Contact me today at (714) 516-8188 to talk about your business and let me help you prepare for the future.

Neutral Risk Doctrine

Workers’ compensation is a complex area of law with many divisions for types of disability, types of injuries, types of employees, and dozens of other subsections.  Although it is not codified in the California Labor Code, cases from the WCAB and the WCJ have also made divisions of types of risk.  There are three types of risk, according to the California courts: 1) purely personal risks; 2) mixed or industrial risks; and 3) neutral risks.  A personal risk would be one that arose out of an employee’s home life.  For example, if an employee was injured while at work because his wife came to work and shot him in the knee after a marital dispute, that would be a personal risk and would not be considered a work-related injury.  Conversely, if an employee is struck by lightning while mowing the yard at his place of employment, that very well could be a neutral risk, as it would not be a risk that is associated with the industry nor a risk associated with the employee’s home life.  Neutral risk injuries are considered work-related and are compensable through workers’ compensation.

Employers should be aware of the burden of proof placed upon them through this system.  In a case involving neutral risk, if an employer seeks to deny workers’ compensation benefits, it is the employer’s responsibility to show that the injury arose from a purely personal reason.  The injured employee must prove that an injury occurred, but does not have the burden of proving that injury is a neutral risk or industrial risk injury.  An example can be seen in Rincon v. Kyung Hee Lee.  In that case, the employee was shot and killed while working at a liquor store.  The investigation was unable to determine a motive for the murder, and there was no money taken from the cash register.  The employer contended the neutral risk doctrine should not have been invoked, as the employee’s widow failed to prove that the injury arose out of the employee’s employment.  The court rejected this argument, reiterating that as the employee’s widow had already proved injury, it was up to the employer to prove the injury was not work-related and was personal in nature if the employer wanted to deny workers’ compensation benefits.

Determining what category a work-related injury falls into can be complicated and you should have an experienced attorney helping you.  Contact us today at (714) 516-8188 if you wish to discuss workers’ compensation issues facing your business.

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