inside

• Editor's 2 Cents: Alamraz/Guzman is about Fairness, but for Whom?
• Legal Update:  The Lazy Days of Summer
• Joan Lloyd: Questions on References, Age Discrimination/Outdated Skills
• Fraud Watch:  Post-Termination Investigation
• Newsflash: Weight Discrimination in the Workplace
• Job Alert: Investigator...
• Events Calendar: Alliance Occupational's Event on 8/13... South Bay Wine Tour 9/11
• Poll: Will SCIF be Sold?
• Poll Results: Should the WCAB Merged with the other Administrative Law Courts?
  

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Adjusting World welcomes emails/letters to the editor and comments on any of our articles. Emails/letters should not exceed 250 words in length and can be sent to the individual email address listed on the article or to: comments@adjustingworld.com.

All emails/letters received become the property of Adjusting World and cannot be returned. Adjusting World reserves the right to print, edit for space, grammar, and clarity. Letters must include the name, address, telephone number and email address of the author. Adjusting World reserves the right to limit the number of emails/letters printed.

Alamraz/Guzman is about Fairness, but for Whom?

William Nathans
Editor

bill@adjustingworld.com  

 

There has been a lot of talk lately about what is fair. Fairness seems to be the underpinning of the Alamraz/Guzman decision.

 

The question that arises is, what is fair? Fair to whom. I understand that applicant’s attorneys and some injured workers do not believe the new system is fair. I guess fairness is in the eye of the beholder.

 

They complain insurance companies are making a profit, What is wrong with making a profit? I always thought that was the purpose of a business. What other business, according to CAAA,  should be required to give up some of the profits and pass them along as ”benefits”? Aren't insurance companies allowed to make a profit and why is it up to the applicant's bar to decide how much of a profit they are entitled to. Why don't they tell the oil companies or Walmart how much profit they can make? Why don't they tell the doctors, that they refer to because they will give outrageous permanent disability levels, how much they are entitled to make?

 

It seems like they don't understand that the more they add to a claim in order to increase the permanent disability awards to get higher fees, the more the carrier is going to charge the employer. This is especially true in an economy with low interest rates, which is what the carriers do in order to earn money off the premiums they charge to pay the claims.

 

Do they really want SCIF to be the only carrier in town?

 

I know there is a great deal of mistrust of insurance companies, but the same can be said of attorneys

 

What seems to get lost is the fact that the people paying for all of this are other businesses; most of them small or medium size. Large companies tend to be self-insured. What is fair to those businesses? Is it fair that their profits get eaten up by raises in their premiums because one injured worker decides to add every physical ailment they have ever suffered from to a workers compensation claim? Is it fair that a small business is forced to layoff employees or close because they can no longer afford workers compensation premiums?

 

Is it fair that a claim that is in reality worth no more than $30,000 should grow to $90,000 or $100,000 primarily so the applicant’s attorney can get a larger 15% fee? Is it fair that an injured worker gets sent to a doctor who speaks Spanish or has Spanish speaking employees and yet we get $8,000 bill in interpreter fees.  The interpreter then files a lien knowing they will get something for the necessary services they perform? Is it fair to have an interpreter sit in a doctor’s office all day, to interpret for five or six claimants and charge mileage for each claimant? Is it fair that the applicant's attorney selects a chiropractic specialty QME for a thumb amputation?

 

It seems to me that in this economic time, we should be doing all we can do to insure that jobs are available. I cannot tell you how many employers tell me they would love to bring an employee back to work but there is no work to bring them back to…. no business, no job...no kidding.

Comments, questions, e-mail me at bill@adjustingworld.com

The Lazy Days of Summer

Stephen L. Kline, Esq.
steve@adjustingworld.com

 

It has been reported that Mark Twain said “that the coldest winter I ever spent was summer in San Francisco.” This year has been not too far from that myth.  Some days have been hot. Some days have been warm & mild and a few have been brutally cold. Overall with respect to the workers’ compensation world, they have been lazy days.

 

This is certainly in contrast to the Sacramento fun-fest also known as the budget battle to close the state’s mega-deficit.  For the Department of Workers’ Compensation, the three days a month furlough is in effect and as of this writing, every month until July 2010, except January 2010, the DWC offices will be closed the first, second & third Fridays and in January that will be the second, third & fourth Fridays. With the Judges demanding a decision day, trials will now be limited to two days a week, with one Conference day.  I don’t even want to fantasize about the clerk’s offices and the work piling up there.  Since the DWC is supposedly user-funded (employers and insurance carriers), this is certainly an anomaly that may yet be corrected.  Until then, can you say backlog and delay?

 

The other big item out of the budget “compromise” for our community is the Governor’s intention to raise a $1 billion dollars by selling part of State Fund. Most observers are still scratching their heads to figure this one out. I keep checking eBay to see when & what assets are listed.  It’s probably too early for Christmas gift purchases. I only hope that some budget bean counter enjoys his/her free lunch for this wild idea which must have been picked at random out of the State’s Suggestion Box.

 

Here is this month’s fact situation:    The employee is injured on July 23, 2003. He is temporarily disabled. He has arthroscopic knee surgery on February 9, 2005 and continued to be temporarily disabled.   Then, he wanted to have back surgery. Throughout 2006, the squabble over the surgery and temporary disability continued.   Finally an Agreed Medical Evaluator was selected.  On February 25, 2007, that AME doctor issued his report with the opinion that the injured worker’s “condition was permanent and stationary and ‘probably became so six months after a RIGHT knee arthroscopy which he had on 2/9/05.’"   Temporary Disability payments ended on March 14, 2007.

 

Can the employer obtain temporary disability overpayment credits for the period between August 9, 2005 and March 14, 2007?

 

Initially, the Workers’ Compensation Judge found that there was a temporary disability overpayment, but only for the period from February 6, 2007 to March 14, 2007.  The employer appealed and the case made its way to the Third District Court of Appeal.

 

In a unpublished opinion, the Court in JC Penney v WCAB (Edwards) stated that “a determination by a treating physician that an injured worker continues to be temporarily totally disabled is a medical determination subject to the objection requirement of Labor Code section 4062”  The Court then posed the question: “What is the effect of failing to object within the "time limits" of that statute?”

 

Their answer was that when the employer “failed to object to a medical determination of temporary total disability by the treating physician within the time limit provided in section 4062, they lost the right to object to that determination in the future.”  Simply stated ... use it or lose it.

 

Since the treating physician’s last report indicated that the injured worker “was temporarily disabled through June, 2006”, the Court indicated that date was the furthest back that the employer could reach for temporary disability credit.

 

While an unpublished opinion is not legally binding on workers’ compensation judges, it is very persuasive and its reasoning cannot be ignored.

 

The instructions here are that if and when there are objections to medical determinations that they must be raised by the employer / carrier.  An AME’s opinion of a retroactive permanent & stationary date will not vitiate the failure to make the timely objections to a treating physician’s medical determination.

 

Of course, today this process is subject to the Panel QME roulette spin. The employer / carrier is called upon to carefully weigh and balance the timing of 4062 objections in order to decide when to spin the wheel and watch the ball land at the appropriate doctor’s office.  Our process is never easy or certain.

 

I wish you the best for the rest of the summer.

 

--- Stephen Kline

 

          

      

 If you have any questions, please feel free to contact me at my new email address slkesq@me.com.

 

 

 Don't miss Steve's Legal Update on August 28th at the SBICA Luncheon and follow his blog entries on planetworkcomp

See the upcoming events calendar for more information......

Have a question for Steve?

Don't hesitate to ask.  Email it to: steve@adjustingworld.com and get it answered right here.

 

Post Termination Investigation

David Dindak

Coast to Coast Data Search

david@2mypi.com

Post termination investigation

The economy has brought us many interesting challenges.  The loss of a job or the rumor of a cut back can and does produce an uptick in claims.  But a claim reported after termination or dismissal can present it’s own challenges.  Although the statue is clear, you must work quickly to gather your evidence and statements to defend your denial.

Prep for investigation assignment

Before assigning an investigation firm to obtain statements and gather documentation, think about what you want to achieve.  Each claim is unique even if it looks pretty run of the mill on the surface.  Run of the mill can quickly evolve into a monster if you don’t take control from the beginning.

During the three point contact, request a list from the employer of all the co-workers and supervisors who interacted with the Claimant on a daily basis.  You want to determine if the Claimant ever complained or reported the injury/symptoms prior to termination.   If the injury was not witnessed, find out who saw the claimant before and after the alleged injury.  Request any video of the area where the Claimant was working at the time of the injury.  Let the employer contact know you want the personnel file and the manager’s file with all the documentation of the termination and any other information about performance. 

Assign the Case to an investigator  

If the Claimant has not retained an attorney, assign the investigator to take the Claimant’s statement.  Give them a complete description of how the injury occurred and all the body parts reported as injured.  Guide and direct your investigator; if there is a specific question you want the investigator to ask, state it in your request.  Provide the list of employees and supervisor you received from the employer to the investigator.  They can schedule the appointments and have them completed quickly instead of coming back to request permission to take the statement of one more witness. 

Lastly, let them know your deadlines.  Remember to assign a case as soon as you have the information to proceed.  Don’t run the risk of missing your 90 days because you assigned the case as a rush a week before your deadline.   There are too many moving parts in an investigation that can be delayed but could be solved with a little more time.

Read the report ASAP

Don’t just read the summary, (I know it really is the best part).  Read the whole report and consider the recommendations that are presented by the investigator.  Approve them quickly if you want them to proceed.

With a little bit of prep in the beginning you can have enough evidence to defend your case well before the 90 days.

If you have any questions about Sub Rosa, AOE/COE, Fraud or Investigation, email me. at david@2mypi.com   

David Dindak is the CEO of Coast to Coast Data Search, an investigation firm that has successfully serviced the insurance industry for the past 20 years.  He is a licensed PI and a continuing education Instructor in Investigation and Fraud.

David teaches an Investigation & Fraud Training Series to companies. This training series is free and is provided to companies onsite. Adjusters earn continuing education credit for each class in the series.

For additional information on Coast to Coast Data Search and/or how to bring the 2009 Investigation and Fraud Training Classes to your company. Contact him at david@2mypi.com or call (800) 282-6278.

Weight Discrimination in the Workplace

Employers can dictate how we perform our jobs, insist we look professional, and ban us from engaging in certain activities at work. How far into our personal lives are employers legally permitted to go? Can an employer tell us how much we should weigh? Can an employer give preferential treatment to thin employees?More >>

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Health care cooperatives are good model for reform

As Congress debates a bill that could completely change the way health care is provided to all Americans, little attention is being paid to another category of health coverage: workers’ compensation.
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California Passes Budget, SCIF Says Proposal to Sell Its Assets Have Failed

The California Legislature has passed the 2009-10 budget, with $24.2 billion in deficit reduction solutions and a $921 million reserve; in total solving a $25.3 billion problem.

The bipartisan solution was the product of several months of negotiations and public hearings on how to address the historic downturn in the economy by

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