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Legal Update: From a Journey Far, Far Away
Joan Lloyd: Readers ask Questions about Religion and Work
Fraud Watch: Pursuing Fraud in Santa Clara County
Newsflash:California to Update Workers Compensation Regulations
Job Alert: Investigator...
Events Calendar: November & December Holiday Events
Poll: Should an Employer Prevent you from Moonlighting?
Poll Results: Could the Public Option hurt Workers' Compensation?

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Editor's 2 Cents

California Salvation

William Nathans
Editor

bill@adjustingworld.com

Last month I wrote about the proposed healthcare plan. I believe that inclusion of a public option would be a salvation for the State of California.

The 2009 Medi-Cal budget is $47 billion dollars, with $27 billion currently coming from the federal government. Do the math! If the public option is adopted; it solves the State's budget crisis.

For example, Medi-Cal currently pays for forty-six percent of all births in the state; care for two-thirds of all nursing home residents and almost two-thirds of all net patient revenue in California’s public hospitals.

It is my understanding that the majority of these expenditures would be covered under the public option. This is because the overwhelming majority of these patients are the working poor or uninsured working people.

Just think about a balanced budget and the ripple effect. If we as Californians don't have to pay for these health matters, maybe we could, oh I don't know, maybe properly fund our educational system so it is once again world class, instead of just paying lip service to our children.

This would also help budget issues in other states. I find it incredulous that none of our elected officials nationwide have brought this up.

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

From a Journey Far, Far Away

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

Tania Esquivel was injured in the course and scope of her employment as a correctional officer for a private prison corporation. She lived in San Diego and her treatment was through medical providers near her home in San Diego. One day, she went to visit her mother who lived in Hesperia, 130 miles away.

In Hesperia, en route back to an industrial medical provider in San Diego, she drove through a stop sign and suffered serious new injuries. Because she was on her way to a medical appointment, she claimed that her new injuries were a compensable consequence of her industrial injury and should be covered by her workers’ compensation carrier.

The workers’ compensation trial judge agreed with her position. The employer requested and was granted Reconsideration by the WCAB. They reversed the trial judge and said the injuries sustained were not compensable consequences. The employee filed a Writ of Review in the Fourth District Court of Appeal.

In a published opinion, the court narrowed the issues to be decided as to “whether there is a reasonable geographic limitation on an employer's risk of incurring compensability liability under the Act with respect to new injuries an employee suffers while en route to or from a medical appointment for examination or treatment of an existing industrial injury.”

As you know, published opinions are binding on the trial judges and the commissioners.

The court held, that the employer bears the risk for any new injury while the employee is traveling a reasonable distance, within a reasonable geographic area, to or from the medical appointment. Without any specific statutory or regulatory test for determining both the boundaries of the applicable reasonable geographical area limitation and what constitutes a reasonable distance, the court also held that such determinations must be made on a case-by-case basis considering all relevant circumstances.

After showing clear distinctions about the cases that the applicant was relying upon, the court stated, "of particular relevance here, the employee’s qualified right to be treated by a physician or at a facility, of his or her own choosing after the initial 30 day period, like the employer’s obligation to pay for such treatment, is generally limited under section 4600(c) to a reasonable geographic area. They also relied upon the expression in section 4600 (e) (2) that refers to reasonable expenses of transportation.

They concluded their opinion by listing out nine factors which could be used to determine the reasonableness of the geographic area. These included “(1) the location of the employee's residence; (2) the location of the employees workplace; (3) the location of the office of the employee's attorney; (4) the location of the medical providers office; (5) the place where the new travel related injury occurred: (6) the distance between the employee’s point of departure and the medical provider’s office along a reasonably direct route to that office; (7) the additional distance the employee travels in the event he or she deviates from that reasonably direct route while en route to the medical provider's office; (8) the availability of medical providers in the fields of practice, and facilities offering treatment reasonably required to cure or relieve the employee from the effects of the existing injury; and (9) the reason or reasons for the employee’s travel beyond a reasonable geographic area within which the employer ordinarily should bear the risk of incurring compensability liability in the event that the employee is injured while traveling to or from the medical appointment.”

While it was included as part of the facts, there may have been some underlying feeling that because the employee violated the traffic laws by running the stop sign and causing the accident, she should bear some responsibility for her actions. While the workers’ compensation is still primarily “no fault”, the cultural trend albeit, very slow, is turning to a new era of responsibility tempering the entitlement mentality.

As an applicant attorney lamented, bad cases make bad law for them. This clearly was not a good fact situation for them to press up the chain of appeals. For employers and carriers, this ruling gives some limits to the compensable consequence and going and coming doctrines. Care should be taken to document all the factors which support the denials. “How far is too far?” still remains an open question to be decided on the evidence presented to the trial judge.

Thanks for your attention.

Don't miss Steve's Legal Update on January 22, 2010 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.

praying man

Readers ask Questions about Religion and Work

Dear Joan:
I am Wiccan, and have had issues on the job, and now that I am job hunting, have issues in being hired. I usually wear my pentacle the same as many Christians wear a cross. I have been told by many that I should not wear a pentacle to job interviews; if I do wear one, to have it on a long chain and tuck it in for the interview. I also have a Myspace and a Facebook page, and my religi

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Pursuing Fraud in Santa Clara County

David Dindak

Coast to Coast Data Search

david@2mypi.com

Last month the South Bay Industrial Claims Association Monthly Luncheon had the honor of hosting Santa Clara County Deputy DA’s Kathy Wells and Janice Doi as our presenters. They packed a lot of information into an hour, and I wanted to share some of the highlights.

There are various grounds District Attorney offices might not pursue your Fraud filing, some of which they shared, but one that I have had difficulty accepting in the past is lack of funds. Don’t know if any of you out there have had the same experience, but twice in the past couple of years we had been told there weren’t any funds available to pursue our case. Consequently, we had to wait until the next fiscal year on one, and the other was never accepted.

Important to know about Santa Clara County is that this DA receives Grant monies. Consequently, they’re pining for Fraud cases. The WC Division there has 2 full-time Prosecutors, 4 sworn Peace Officer investigators and 2 Paralegals, along with a Forensic Accountant and Forensic Computer Analyst, so this is one County that is manned and prepared to finish what they start.

Which brings up the issue of what information is needed from the insurer/SIU. Rule of thumb is “ALL”. DA offices and the CDI gets inundated with FD-1 forms, and quite often these are submitted with no supporting documentation/evidence. As a result, the investigation agency has to communicate with the carrier requesting, i.e., the claims file, then the video/audio and reports, etc. This takes time and man-hours, so which case would you work first, the one that is all inclusive, or the one where you have to make several phone calls and go scratching around for your evidence.

No Brainer – per Ms. Wells and Ms. Doi – provide All medical records, All depositions, All video, All statements of the Claimant and Witnesses, All recordings, the COMPLETE Claims file including paid-to-dates, and All claims notes (there is no privilege, so if there’s something you would not want someone down the line to read, don’t type it).

We were told that there is no magic formula as to how much evidence is enough for Santa Clara, because cases are intensely fact-driven and surmountable evidence will vary from case to case. However, the need for early and complete investigation was stressed. The Statute of Limitations for Fraud-related Felonies, i.e., Insurance Fraud and Perjury is “4 years from date of discovery”. The SOL for Misdemeanors is 1 year from the “date of offense”. Remember, the discovery of the basic elements of the crime, not just a loss, is what triggers the Statute.

Six points Santa Clara County DA’s look for are:

Thorough questions of the Claimant
SPECIFIC questions asked “Since your injury, have you_____”
Claimant’s answers/statements are documented
Video taken as close in time as possible to the deposition of Dr.’s appt.
Inconsistencies that are material
Several days of taping which document inconsistencies

In closing, the ADA’s expressed that Criminal WC Fraud case is only as good as the documents, discovery and facts supporting the allegation. In this respect, the “beyond-a-reasonable-doubt” burden is the highest standard by which evidence is weighed. Finally, the best cases are investigated early and thoroughly….remember, waiting too long can kill the case under the Statute of Limitations.

So keep in mind that Santa Clara County is one that is ready, willing, and able to accept your suspected fraud claims. Don’t hesitate to give them a call with any questions you might have, and both Ms. Wells, and Doi will be happy to answer them.

See ya next month..

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.

California to Update Workers Compensation Regulations
California's Department of Industrial Relations has proposed an update to regulations for the Workers' Compensation Information System. The update is part of the Division of Workers' Compensation's 12-point plan to reign in medical costs in the system.

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Case involving job-related injury ping-pongs back to state court
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Do Employees Have the Right to Moonlight?
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Two plead guilty in Southern California workers’ comp cases
A Placentia man and a Chino Hills man both pleaded guilty to 13 counts of fraud and one count of conspiracy in a workers’ compensation case that began in 2005.

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Comp Cheats Confess All on Social Networking Sites
Workers compensation claims investigators are increasingly scouring popular social networking Web sites such as Facebook, MySpace and LinkedIn to help insurers and employers fend off bogus claims.

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