Thoughts

Benefits

Always furnish ALL benefit printouts and benefit notices to your attorney for ALL claim files as this will hopefully ensure an accurate accounting of payments and credits within the settlement documents. 

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Immediately Report Incidents After They Happen

Don’t Wait – Immediately Report Incidents After They Happen – Employees should not be afraid to report accidents. They should not also face sanctions and consequences because it is an accident and no one wants that to happen. Encourage them to report it immediately. This gives your employees the idea that you value their safety, … Continued

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Compromise and Release Agreement

Be sure to include all body parts and body part code numbers filed in EAMS in paragraph one of your Compromise and Release Agreement (C&R). Any and all body parts or conditions alleged to have been industrially injured in any medical report should be included in the additional language that you add into a C&R … Continued

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Medicare Set Asides

To reduce Medicare Set Asides (MSAs):  Use a Cost-Benefit Analysis to determine how far you are willing to go. Check for generic vs. brand name medications and patent expiration dates. Can the recommended treatment be eliminated by arguing the applicant is not a good candidate for that treatment? Use applicant’s testimony to your advantage (“none … Continued

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Vocational Expert Report

Challenge applicant’s vocational expert report on the issue of applicant’s amenability to vocational rehabilitation: Was a complete and accurate job title and description used? Did the expert review a complete and accurate medical history? Confirm that the diminished future earnings are attributable to the industrial injury and not to non-industrial factors.

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Psychiatric Claims of Injury

Defend psychiatric claims of injury by establishing the medical opinion does not support the diagnostic criteria for the alleged diagnosis pursuant to the appropriate DSM manual. Also, you can attack a report based on an incomplete history and/or pre-injury GAF score. 

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To defend challenges to claims regarding UR timeliness:

To defend challenges to claims regarding UR timeliness: Secure any notes from the UR nurse Secure proof of communication of the decision by fax, telephone, or email If by fax, be sure to get a copy of the confirmation page showing the number of pages faxed and to whom If by telephone, be sure to … Continued

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Intoxication Injury

Injury caused by intoxication is not compensable pursuant to LC §3600(a)(4). This includes alcohol and controlled substances. To establish an intoxication defense, the defendant must show: IW actually consumed the intoxicant IW was actually intoxicated The intoxication substantially caused the injury

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Medical Apportionment

Ensure that you have legally valid apportionment for an evaluator’s report that finds medical apportionment. The doctor has to state how and why he finds apportionment and his or her opinion must be predicated on reasonable medical probability and substantial medical evidence. 

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Cross-examination

Have your defense attorney concurrently set a cross-examination of an evaluator and send an interrogatory in order to obtain a quicker end result in your cases where medical questions are looming. 

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As a general rule, an injury during an applicant’s “regular commute” is not compensable. Exceptions include:

As a general rule, an injury during an applicant’s “regular commute” is not compensable. Exceptions include: Special missions Zone of danger Where the employer pays for travel On-call employment Where the employer provides vehicle for work Where the job site is not fixed or the job requires driving from one site to another Where the … Continued

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Remember, LC section 5402 is a rebuttable presumption!

If you forget to timely deny a claim and timely notify the applicant of the denial, you can still escape the presumption of compensability if you are able to prove that a conclusion was made to reject the claim even though not timely communicated to the applicant. Remember, LC section 5402 is a rebuttable presumption!

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Remember, if you forget to timely deny a psyche injury case, the good faith personnel defense is exempt from the Labor Code section 5402(b) presumption of compensability.

Remember, if you forget to timely deny a psyche injury case, the good faith personnel defense is exempt from the Labor Code section 5402(b) presumption of compensability.

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Status Conference

As a strategy, you can have your attorney file a DOR for a Status Conference in order to block applicant’s attorney from being able to file for an MSC. This avoids the closure of discovery and provides a face-to-face meeting opportunity. Be sure you have made a good faith attempt at resolution of any issue … Continued

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After settlement of a case, set a diary for 180 days to seek a dismissal of inactive liens for failure to prosecute if none have filed a DOR.

After settlement of a case, set a diary for 180 days to seek a dismissal of inactive liens for failure to prosecute if none have filed a DOR.

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If you know you’re going to use a QME, always be the first party to request it and do it right away.

If you know you’re going to use a QME, always be the first party to request it and do it right away. That way you can choose your specialty in accordance with your client’s request. It also puts you in the driver’s seat if you need to obtain a replacement for any reason.

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Utilization Review (UR) determines medical necessity, not causation of injury.

Utilization Review (UR) determines medical necessity, not causation of injury.

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A nurse case manager (NCM) is a great liaison to facilitate the execution of the alphabet soup of diagnostics that a doctor may request.

A nurse case manager (NCM) is a great liaison to facilitate the execution of the alphabet soup of diagnostics that a doctor may request.

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Depositions

Have applicant’s deposition take place in the most advantageous location to effectuate early resolution. Why? If applicant’s attorney sends contract attorneys to depositions outside of his or her office, it may be more difficult to have someone present with authority to negotiate on behalf of the applicant.

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IMR Determination

Be on the lookout for the tactic of applicant’s attorneys to appeal the IMR determination to the WCAB on the basis that the documentation provided to the IMR doctor was incomplete. Remember the Uribe-Ramos panel decision resulting from a Stockton District Office case that held the defendant has an affirmative duty to submit documents to … Continued

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In asserting legal defenses, make sure your attorneys and any medical reports you plan to rely upon provide adequate explanation

In asserting legal defenses, make sure your attorneys and any medical reports you plan to rely upon provide adequate explanation to support your legal and medical theories. You may need to call, write or depose the treating physicians or the medical-legal evaluators in your case. Don’t be afraid to explain to the doctors exactly what it is that is needed. Make the call, … Continued

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Make it a practice to issue a denial

Make it a practice to issue a denial, where appropriate, for body parts or conditions that are the subject of Amended Claim Forms or Applications. Why? To defer utilization review and to help defend against unwarranted liens. #workerscompensation #workerscomp #workcomp #law

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Know your opposing counsel

Know your opposing counsel. This is the first thing to look for when getting a new file- who is your AA. Depending on who your AA is, you litigate each case differently. You’ll figure out whether a deposition is needed, whether they settle early, whether they tend to request chiro panels so you need to … Continued

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Pro per Applicants

When dealing with pro per Applicants – Call them and speak to them personally from the onset.  They tend to be more difficult than dealing with an AA as they think they’re smarter and know it all. Try to get them to understand you’re not their opposition but rather working with them to get a … Continued

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There is no greater joy nor greater reward than to make a fundamental difference in someone’s life.

There is no greater joy nor greater reward than to make a fundamental difference in someone’s life. ~ Sister Mary Rose McGrady

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Be Honest

Be honest and transparent. If a client asks you for your opinion on a case, don’t just try to please them and tell them what they want to hear. Don’t tell them only the good. You have to be honest with expectations and likely outcomes. We can’t predict 100%, but we know tendencies of attorneys … Continued

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Always be overly inclusive with listed body parts

Always be overly inclusive with listed body parts on a C&R. Include all body parts listed on the application for adjudication of claim and also any body part mentioned throughout the claim including depositions. Create a new ADJ if necessary for an additional date of injury. The opposite is true for stipulations with request for … Continued

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If you know you’re going to use a QME, always be the first party to request it and do it right away.

If you know you’re going to use a QME, always be the first party to request it and do it right away. That way you can choose your specialty in accordance with your client’s request. It also puts you in the driver’s seat if you need to obtain a replacement for any reason.

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Review EAMS and Index reports and order records from all prior claims

Review EAMS and Index reports and order records from all prior claims. The information in the EAMs and Index reports as to what body parts were injured can be inaccurate.  If you rely on them and rule out ordering records as a result, you might miss out on evidence that proves the claim is nonindustrial … Continued

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Nothing is a waste of time if you use the experience wisely.

Nothing is a waste of time if you use the experience wisely. ~ Auguste Rodin

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Have your attorneys be part of your quarterly reviews. A team approach each quarter gets things done!

Have your attorneys be part of your quarterly reviews. A team approach each quarter gets things done!

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Pick your battles carefully, particularly if you have a sympathetic injured worker. You don’t want to create bad case law.

Pick your battles carefully, particularly if you have a sympathetic injured worker. You don’t want to create bad case law.

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Difficulties mastered are opportunities won.

Difficulties mastered are opportunities won. ~Winston Churchill

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Keep track of each medical report to insure there is a medical evidence-based approach to the plan and don’t let treatment just continue unchallenged.

Keep track of each medical report to insure there is a medical evidence-based approach to the plan and don’t let treatment just continue unchallenged.

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How wonderful it is that nobody need wait a single moment before starting to improve the world.

How wonderful it is that nobody need wait a single moment before starting to improve the world. ~ Anne Frank

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Work to find out who it is in the back office of applicant attorney that will get you in touch with him or her so you can really get things done.

Work to find out who it is in the back office of applicant attorney that will get you in touch with him or her so you can really get things done.

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The Rolda analysis for psychiatric claims

The Rolda analysis for psychiatric claims is this: a. Did the alleged psyche injury involve actual events of employment? b. If so, were those events the predominate cause of applicant’s psychiatric injury? c. Did any of those events of employment constitute personnel actions? d. If so, were those actions lawful, nondiscriminatory, and performed in good … Continued

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You’ve got to go out on a limb sometimes because that’s where the fruit is.

You’ve got to go out on a limb sometimes because that’s where the fruit is. – Will Rogers

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Your attorney should give you options for the case at each stage of the claim

Your attorney should give you options for the case at each stage of the claim, keeping emotion out of the decisions, and working with you to me your short term, mid term and long term goals.

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It is not joy that makes us grateful; it is gratitude that makes us joyful

It is not joy that makes us grateful; it is gratitude that makes us joyful. ~Brother David Steindl-Rast

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Achievement is not about what you’ve done but what you’ve gained from your experience.

Achievement is not about what you’ve done but what you’ve gained from your experience. ~ Lynn Hill

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Patience is also a form of action.

Patience is also a form of action. ~ Auguste Rodin

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Labor Code §4903.8 requires that liens are filed in the name of the lien owner only

Labor Code §4903.8 requires that liens are filed in the name of the lien owner only and explicitly prohibits any assigning or factoring of a lien on or after January 1, 2017, unless the medical provider is no longer in business in the capacity in which they filed a lien. 

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Live today, not yesterday, not tomorrow, just today. Inhabit your moments. Don’t rent them out to tomorrow.

Live today, not yesterday, not tomorrow, just today. Inhabit your moments. Don’t rent them out to tomorrow. ~ Jerry Spinelli

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Wherever there is a human being, there is an opportunity for a kindness.

Wherever there is a human being, there is an opportunity for a kindness. ~ Seneca

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Communications between you and your attorney

Communications between you and your attorney, along with the work products developed, are privileged and not subject to discovery. In fact, should the opposing counsel inadvertently obtain privileged documents, he or she has a duty to disclose that fact to us or potentially face sanctions under Labor Code §5813.

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You can’t automatically obtain a replacement panel

Note that you can’t automatically obtain a replacement panel when a supplemental report by the QME is late. The court will consider: the length of the delay; the prejudice of the party subject to the delay; the efforts made to remedy the delay; the specific facts, including a potential for waiver of the objecting party; … Continued

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Photocopy providers can file a Petition for Costs instead of a lien and no lien filing fee is necessary

Photocopy providers can file a Petition for Costs instead of a lien and no lien filing fee is necessary. First a demand must be made and 60 days for payment given before a Petition for Costs can be asserted. But … you must object/respond to the Petition AND file a DOR for a status conference. … Continued

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When you think you have exhausted all possibilities, remember this – you haven’t.

When you think you have exhausted all possibilities, remember this – you haven’t. ~Thomas Edison

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Consider the recent case of Ferrell v. County of Riverside

When asserting the lawful, non–discriminatory, good faith personnel action defense to a psychiatric claim under LC §3208.3(h), consider the recent case of Ferrell v. County of Riverside, 81 CCC 943 where the Court stated that the term “personnel action” is not intended to cover all actions by any level of personnel or all happenings in workplace. But, it is instead … Continued

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