Greed is good

William Nathans
Editor

Greed is good, so the line from the movie goes. Perhaps in some places this is true. But in workers compensation greed is root of the problem. We have greedy doctors who are not practicing medicine, but are practicing walletectomies. We have greedy attorneys practicing the art of being holier than thou while fighting what they believe to be the evil empire. We have the claimants who believe with an entitlement attitude and who can’t believe anyone could or would say no to anything that a doctor would recommend. We have the employer who is tired of being the victim of the greed in the system. We have the greedy politicians catering to whoever is the highest bidder. We have the insurance companies who are blamed for being greedy by the policyholders for charging high premiums and for making profits some would say are obscene.

The system has become one of entitlement and greed and there is enough blame to go around. If we are serious about changing the system, this where we need to start. If mindsets don’t change the system won’t.

Suggestions can be sent to Bill@adjustingworld.com.

If you ask people what the biggest people problem is at work, they are likely to agree with one voice, “Communication!” Communication problems are at the heart of many workplace problems and the end result is loss of trust, teamwork and productivity. Here are some common sense rules that are too often broken. (Yes, we should know better but admit it, you’ve probably broken one or two of these yourself.) More >>

Workers Compensation Judge Gone Wild
- Not ready for video yet!

Stephen L. Kline, Esq.
ARMSTRONG LAW FIRM
stephenk@arm-law.com

The anecdotes about certain Workers Compensation Judges and their idiosyncrasies fill the talk around the coffee pot almost every morning. Take heart … the WCAB issued two decisions recently, though not given wide publicity; clearly demonstrate that the Judges’ power is not unlimited.

Many of the problems that examiners and defense attorneys lament about is the way WCJ’s act towards settlements with in pro per applicants. Some Judges become advocates for the unrepresented worker who has already agreed to a fair and reasonable disposition of the case.

In one such case, a San Jose WCJ scheduled an adequacy trial, despite the defendant’s acquiescing to his request to change the date of injury from 2003 to 2004 with its increase in permanent disability value.

In the case, Sehat v National Semiconductor, SJO 248098, the WCAB emphatically told the WCJ that Policy & Procedures Manual section 1.91 mandates that a WCJ has NO DISCRETION “to further investigate or delay the execution and approval of” stipulations if it is within the range of medical evidence presented. They stated, “the WCJ does not have unfettered discretion to inquire into the adequacy of a settlement, but must act on the submitted agreement within the parameters of section 1.91.”

They concluded, “the WCJ is charged with protecting the interests of an applicant who appears in propria persona. However, the WCJ must remain impartial and may not represent or advocate for the applicant.”

You can access the Policy & Procedures Manual via http://www.dir.ca.gov/DWC/.

Very interesting reading for all of us.

The other WCAB decision, Ortiz v. Del Monte Corporation, SJO 220833 interestingly involved the same San Jose WCJ. Do we have a pattern here?

This fact situation involved an executed Stipulations with Request for Award which was submitted to the San Jose Board on July 20, 2001. The WCJ noted that there was an EDD lien that needed to be addressed. No further action was taken until August 1, 2003 when the EDD withdrew their lien. The initial WCJ retired and the matter was transferred to another WCJ. The fun then begins.

On April 23, 2004, an ”Order Requiring Response and Action and Suspending Approval Concerning Stipulations with Request for Award” was issued. After many delays, a hearing was held on December 1, 2004 with the in pro per applicant present, her interpreter and the attorney for the defendant. The attorney indicated that she had authority to settle the matter either through Stipulations or by Compromise & Release (C&R).

The unrepresented applicant expressed a desire for the C&R and an amount was agreed upon which the WCJ indicated he would approve for that amount. Papers were drawn up and signatures obtained of the applicant and the attorney. It was at that moment that the attorney found out that the applicant was still employed at the company. The applicant had misunderstood the employment situation as she was a seasonal employee and was not currently working. The attorney then indicated to the WCJ that she had to withdraw from the agreement.

The WCJ threatened that if the attorney did not turn over the signed agreement to him that he would call the police and have her arrested. As the attorney attempted to redact her signature from the document, the WCJ then became what was described as “enraged” and rose from the bench and retrieved the documents from the attorney’s hands. The WCJ then proceeded to sign the Order Approving the Compromise and Release.

The WCAB granted the Petition for Reconsideration and rescinded the OACR. The WCAB stated the Judge’s conduct was “coercive, threatening, bullying and outrageous.” He overstepped the bounds of judicial restraint and dignity by insisting that the document be filed and in issuing the OACR forthwith without regard for defendants’ attorneys’ protestations. “We are appalled by the judicial conduct reflected in the record of this case. … We regret that this incident happened and we hope that it will not recur.”

WCJs are to abide by the Judicial Canon of Ethics. They are to be impartial fact finders and arbiters. We must maintain our diligence to show dignity to the office, but not permit this type of inappropriate advocacy to occur. If we do, we are part of the problem.

If you would like a copy of these decisions, email me at stephenk@arm-law.com

Thanks for your attention …. Stephen Kline, Esq.

Alan C. Roth, MD JD
drroth@adjustingworld.com

How is a QME report different these days under the new and improved Workers' Compensation laws?

SB 899 was passed in April of 2004.  There have been many changes, as you are all aware to the labor code. Ability to compete is replaced with loss of future earning capacity, without speculation. A represented employee is allowed an agreed medical evaluator, if there is an agreement on who to pick.  If there is not an agreement, (imagine that), then panels of doctors can be requested and rejected. This is the theory.

In the olden days, in physiatry residency there was much made of the difference between what is a disability and what is impairment. What we used to figure out was how much disability the patient had, while now, we calculate impairment, using many of the same tools. Used to be, an impairment was a residual limitation resulting from a congenital defect, disease, or injury.  Generally the physician made this determination. A disability existed when an impairment caused an inability to perform some major life function.

Thus one with an impairment does not necessarily have a disability. So what is a handicap?  When a disability interacts with the environment to impede the functioning in some area of life, such as work, travel etc.

Now, the legislature brings us, "a schedule for rating permanent disabilities that will adjust from impairment to diminished earning capacity by a formula based on empirical data of average long term loss of earnings." Previously the disability level took into “consideration ” “ratable" subjective complaints, objective findings, and  work preclusions. Now the impairment rating, using the AMA 5th, is largely based, at least in theory, only on objective finding such as loss of range of motion, surgeries, etc., although there are in terms of back pain things such as unsubstantiated radiculopathy which can be factored in.  In certain circumstances, pain worth 3% whole body impairment may be considered. Situations such as most back pain, tendonitis, etc. may rate out as 0% impairment.

Apportionment is another big change.  In common law and most states, you take an employee as you find him.  Disability made worse by an injury can be fully compensated.  Now, only here, as far as I know, the employer's liability is limited to the percentage of permanent disability caused directly by the employee's injury.  The QME or treating MD will determine to a more likely than not standard, without slipping into speculation, the exact percentage of permanent disability caused by the injury.  Past awards are to be taken into consideration as well.

According to one study (J. Paul Leigh and Stephen Mccurdy, MD) it has been concluded that the permanent disability values will be reduced by two thirds. Other changes: it is impossible to get a verbal authorization for needed tests and physical therapy, without usually one report and a phone call to a medical advisor. 

While a physician may be qualified to perform a QME or AME on a patient or perform a test such as an EMG, he may not be allowed to treat the patient if he is not in the treatment network. Not yet carved in stone.

Alan Roth, MD JD
Physical Medicine and Rehabilitation

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