Doctors, Responsibility and
The Real Meaning Of Liens

William Nathans
Editor

There has been a lot of noise recently about doctors leaving the system. They whine about how the poor injured worker cannot get the necessary treatment. They complain and lament about delayed authorizations that harm the injured worker.

Well, I am finding that some doctors are ignoring the new rules, filing their liens (ever notice what the first three letters of lien spells?) and carrying on with business as usual.

Some doctors are getting out of the system; hopefully it’s the ones that do more harm to the patient than good. But surprising there are some who are actually trying to abide by the rules and regs.

In my opinion, the doctors have no one to blame for their complaints but themselves. A lot of them are too lazy to lay out the proposed treatment plan. Gee doc, you want to do knee surgery knowing that physical therapy is going to be necessary. Then why do you wait until after the surgery to request the authorization? Did you ever stop to think that by laying out the treatment plan in the beginning, your patient would actually get the timely treatment he/she deserves, rather than having the injured worker listen to you blame the adjusters and the insurance companies when you are creating delays?

When are physicians going to take responsibility for their actions or in some cases inactions? I cannot tell you how many times the injured worker has been told the adjustor (i.e. me) was a liar by the doctor, because the doctor was trying to cover his or her butt because they did not follow protocol.

We all have a job to do within the system, and doc, if you tried to do yours the right way, you just may find you’d get what you need, even though you can’t always get what you want.

Suggestions can be sent to Bill@adjustingworld.com

It's Alive!!! . It's Alive!!! .

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

After the passage of SB 899 last year, Applicant Attorneys began chanting a mantra . . . “Fuentes is Dead”! As the shouting about MPNs, the new PD schedule, the injustice of retroactivity and the “evildoer”, Andrea Hoch, began to be quieted by the District Courts of Appeal, the WCAB en banc, and State Senate President Don Perata, the Applicant Attorneys still chanted “Fuentes is Dead”!

On June 9, 2005, the WCAB, sitting en banc with Nabors v Piedmont Lumber Co, on a 4 to 2 vote said that Fuentes is still the law in California.

Fuentes (16 Cal 3d 1) is a 1976 Supreme Court decision that decided how to calculate successive awards to the same body parts. For example if an applicant received an Award in 1996 for 49% for both lower extremities and in 2002, he sustained another injury to those body parts and his disability was now rated at 80%, Fuentes mandated that the 49% was to be deducted from the 80% for a NEW AWARD of 41%.

Applicant Attorney’s argued that because Fuentes was based on Labor Code section 4750 which had been repealed by SB 899, another method of calculation was to be used. Another method suggested was to determine the number of weeks of disability for the 80% and deduct the number of weeks that equaled 41% and pay the applicant for those weeks. The third method was to convert the percentages to dollars and subtract the smaller from the larger. Applicant Attorneys like this method best because it usually yields the largest sum for them and the applicant.

The Majority of the WCAB said, “ The plain terms of sections 4663(c) and 4664(a) mandate that the percentage of non-industrial or previously awarded permanent disability be subtracted from the overall percentage of permanent disability in the same manner as formula A adopted by the Supreme Court in Fuentes. That is, section 4663(c) requires apportionment of the “percentage of the permanent disability” caused by factors other than the industrial injury at issue. (Emphasis added.) Similarly, section 4664(a) provides that the employer shall only be liable for the “percentage of permanent disability” directly caused by the new industrial injury. (Emphasis added.)”

More importantly, the rationale for this formula was “the fact that Fuentes was an analysis of apportionment under section 4750, which was repealed on April 19, 2004, does not change the Legislative intent underlying apportionment statutes of encouraging employers to hire disabled workers.”

The Majority concluded, “when the WCAB awards permanent disability after apportionment, the amount of indemnity due applicant is calculated by determining the overall percentage of permanent disability and then subtracting the percentage of permanent disability caused by other factors under section 4663(c) or previously awarded under section 4664(b); the remainder is applicant’s final percentage of permanent disability for which indemnity is calculated.”

Nabors will undoubtedly be subjected to a Writ and further appeal. We will watch this one carefully, but for now a new mantra needs to be developed.

On the same day, the Fourth District Court of Appeal issued an opinion reversing the WCAB’s finding that a claim for workers’ compensation benefits was not barred by the statute of limitations.

American Tissue Corp v WCAB (Sarabia) , 2005 Cal App Unpub LEXIS 5044. The applicant did not understand English and at trial testified through a Spanish language interpreter. Two months prior to his last day of work, the applicant started to experience pain in his left hip. He went to see two different doctors and continued to work for the same employer until November 2000. On his last day of work, Applicant told his foreman about his pain in his left hip. On November 9, 2000, he saw a third doctor who informed him that he had severe arthritis that would require surgery and that his condition was related to work.

The applicant did not file his claim for workers' compensation benefits until August 2002. The WCJ issued a decision, finding that his injury was work related and that his "claim is not barred by the statute of limitations." On a Petition for Reconsideration, the WCAB upheld the WCJ’s finding.

The Appeals Court indicated that “for purposes of the statute of limitations in these cases, the date of injury "'requires concurrence of two elements: (1) compensable disability, and (2) knowledge of industrial causation.'"

“Whether an employee knew or should have known the employee's disability was industrially related is generally a question of fact to be determined by the WCAB. (Citations deleted.) It is the employer's burden of proof to show the employee's knowledge.”

The Court relied on the Applicant’s testimony that he was twice advised by doctors that his injuries were work related. They stated, "'An employee clearly may be held to be aware that his or her disability was caused by the employment when so advised by a physician.'"

Thus, they reversed the WCJ and the WCAB and said that the applicant’s claim was barred by the Statute of Limitations. There are not too many cases doing that. Hmm, what’s that blowin’ in the wind … could it be change????

Thanks for your attention. Enjoy the Summer.

David Dindak
Coast to Coast Data Search
david@2mypi.com
www.2mypi.com

As we progress through life, the world inevitably changes around us. However, we remain the same person with the same identity and Social Security Number. Therefore, it has become important as a matter of personal security to protect our identity. This is due to the evolution of Identity Theft, now a billion dollar a year fraud.

Last year, 9 million people had their identity stolen. Along these lines, it’s important to understand that the majority of identity thefts are not due to “hackers” accessing large database computers, but actually the result of thieves “dumpster diving”.

The following article is being written to give some insight into primary tactics one can utilize to help prevent becoming one of a growing statistic: A Victim of Identity Theft.

Many are becoming familiar with online banking and it’s practical applications. Security certificates are used to encrypt information in transit thereby reducing the amount of information leakage. This is often times a safe way to conduct your financial transactions. However, you should inquire with your financial institution’s representative as to the risks involved.

Sometimes, a personal check must be written. So, the next time you order checks, omit your first name and use initials. If you lose your checkbook, it makes it more difficult for the potential criminal to guess how you sign your checks. Never place your Social Security Number on the checks, this should be an obvious countermeasure, but you may be surprised what people do.

When writing checks to pay on credit card accounts, DO NOT put the complete account number on the “For” line. Instead, just put the last four numbers. The credit card company will know the rest of the number, and anyone who might be handling your check as it passes through all of the processing channels will not have access to it. Also, use your work number on your checks, and if possible a P.O. Box Number instead of a home address. Even DMV permits using a P.O. Box as a bona fide address. Finally, once an account is closed, destroy all of the remaining blank checks.

Imagine that your wallet has been stolen. For most, this is a familiar scenario. Within 1 week of the time that it was taken, a thief could have applied for and received a credit card in your name. With this card he/she may have acquired a credit line large enough to buy computers, televisions, appliances and order expensive cellular phone packages. In some states, one could even obtain a pin number from DMV and change driver record information online.

A helpful suggestion: place the contents of your wallet on a photocopy machine and copy both sides, keeping the copies in a safe place. Now, when the realization that you’re missing the means to pay for the dinner you just ate and the panicking has subsided, you will know what was in your wallet, and which numbers you are going to need to call. How you make it past the concierge is entirely up to you, though.

In addition, calling the credit card companies and canceling credit cards is your first priority but, it is also important that a Police Report is filed in the jurisdiction where it was stolen. This proves to your credit providers that you were diligent, and is the first step toward fraud investigation.

Most importantly, call the 3 national credit-reporting organizations and place a Fraud Alert on your name and Social Security Number. The following numbers should be kept at your desk:

Equifax – 800-525-6285
Experian – 888-397-3742
TransUnion – 800-680-7289

David Dindak is the CEO of Coast to Coast Data Search. He has been working as a Private Investigator since 1983. Coast to Coast Data Search utilizes the most sophisticated investigative techniques, as well as the latest technology combined with police-trained seasoned professional investigators equipped to deal with all aspects of investigations and security.

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