May 2012 Issue 

WHAT'S WITH THE SANCTIONS?

Volley of Cases Draws Fresh Attention to Labor Code 5813 

Sanctions have been in the news lately, which signals an good opportunity to review the issue of sanctions and who and what actions trigger them in proceedings at the California Division of Workers' Compensation district offices.

On May 9, WorkCompCentral published a news story titled, "4th DCA Asked to Review Sanctions Against Interpreter." In that case, a corporate officer at an interpreting firm is appealing a $2,500 sanction imposed by Workers' Compensation Administrative Law Judge. WCJ Agnes Barling ruled against the interpreter, who was accused of soliciting an injured worker to lie in court that he required the interpreter's services. The interpreter's appellate attorney said the issue being raised on appeal is whether the judge met the appropriate legal standard to impose sanctions.

On May 15, WorkCompCentral published a news article, titled, "2nd DCA Considering Sanctions against Beverly Hills Attorney." The facts of the case are unusual, but here goes:  The 2nd District Court of Appeal is reportedly considering sanctions against a Southern California attorney for filing a frivolous petition for review of three administrative decisions denying his requests for the discovery of privileged materials and imposing monetary penalties against him. The 2nd DCA dismissed the attorney's petition seeking review of a case in which he unsuccessfully attempted to prove that a claimant and her attorney participated in a fraud in order to collect workers' comp benefits for the claimant. The appellate court  denied review this month, saying it was "frivolous." The DCA remanded the matter to the WCAB to make a supplemental award of attorney fees for services rendered in connection with the appeal.

The granddaddy of late has to be this one, though. "WCAB Imposes Sanctions on Carrier, Adjuster and Defense Attorney," published April 16 on our web site. The California Workers' Compensation Appeals Board ordered $16,510 in sanctions and against the carrier, for engaging in bad-faith and frivolous actions in a benefits dispute. On review by A WCAP panel, the commissioners concluded that the monetary penalty was warranted based on their attempts to compel an applicant to submit to a deposition. The applicant was deposed the first time in 2006, four years after the carrier and adjuster stipulated to a cumulative trauma injury to various body parts. Workers' Compensation Administrative Law Judge Craig Glass ruled that only one deposition was permitted under Code of Civil Procedure Section 2025 (renumbered 2025.610). The applicant sought sanctions and attorney fees, and WCJ Glass ordered the insurer and adjuster to pay the applicant's attorney costs of $15,610 and a penalty of $2,500 – the statutory maximum allowable under Labor Code Section 5813.

The applicable California Labor Code Section is 5813 (Sanctions for bad faith actions / tactics):

(a) The workers' compensation referee or appeals board may order a party, the party's attorney, or both, to pay any reasonable expenses, including attorney's fees and costs, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay. In addition, a workers' compensation referee or the appeals board, in its sole discretion, may order additional sanctions not to exceed two thousand five hundred dollars ($2,500) to be transmitted to the General Fund.
(b) The determination of sanctions shall be made after written application by the party seeking sanctions or upon the appeal board's own motion.
(c) This section shall apply to all applications for adjudication that are filed on or after Jan. 1, 1994.

Judges admittedly don't order sanctions very often in California workers' comp proceedings, however, they are within their authority to do so. A sanction amounts to potential loss of revenue, loss of reputation and filing for writs of review by the WCAB and an appellate-level court. Your case also could get written up in a legal publication, generating mostly unwanted attention unless you did the asking for sanctions against the opposing party. In that case, the attention is good for business.

Google "workers' comp sanctions" and up come reported sanction cases in Virginia, Connecticut, North Carolina, Montana, Texas, Oregon and in the federal court system. The intent of sanctions is to identify and punish delay tactics, either in paying benefits or deliberately wasting the court's time.

Retired Judge Pam Foust, who has written the definitive guide for liens and lien litigation in California, briefly covers sanctions in Chapter 4 of her book, "California Lien Claims in Workers' Compenstion Cases." If you have Pam Foust's book (the new edition is due out in August), refer to it, too.

If you are a party to workers' comp claims or an attorney representing the injured worker or the payer, make it your business to understand Labor Code section 5813. There is an excellent class online about sanctions and attorney fees, interest, costs and penalties taught by a Judge Myrle Petty and lien attorney Jon Brissman. Both instructors talk from experience about this monetary issue and its implications for your practice and your wallet. Jon Brissman also penned an article about interest on medical liens, which is attached to the course.

View the course: Click

Links:

Labor Code 5813: Lookup

4th DCA Asked to Review Sanctions Against Interpreter … Read It or Buy the Article.

2nd DCA Considering Sanctions against Beverly Hills Attorney ... Read It or Buy Now

WCAB Imposes Sanctions on Carrier, Adjuster and Defense Attorney ... Read It or Buy Article.

Lien guide for California by (ret.) Judge Pam Foust ... By James Publishing

WCAB Lien Rules Have the Green Light!

Now we know in California what became of the proposed rule changes about liens. WorkCompCentral  learned this week that the amendments went into effect on Monday, May 21. The DWC has not issued a formal announcement yet, and judges are under advisement to use discretion in applying the new rules immediately since the approval and release flew below everybody's radar, even the judges. 

The proposal to give lien claimants one year from the date of filing a lien to set a trial date did make the final package of rule changes. However, the tolling of this regulation won't begin until Aug. 1. 

There is a Southern California judges' training this week, and the lien regulations will be part of that training. Presiding Judge Paige Levy of Marina del Rey has agreed to discuss the lien rule changes at a previously scheduled seminar for WorkCompCentral on June 2 in Anaheim. Seats remain. Check it out. 

Mills College a Pleasant Experience

We learn something from every seminar that WorkCompCentral presents, and last Saturday was no different. We traveled to Oakland to the campus at Mills College, where nearly 50 workers' comp professionals listened to presenters Judge Colleen Casey and Robert Rassp and keynoter Judge Lilla Rados. The topic was rating permanent disability and tricks of the trade. People liked the class. 

That much we expected. 

What we didn't see coming were the reviews about Mills College itself. A few took the time to comment about how much they enjoyed spending time on the peaceful, green campus. "More Bay area seminars at Mills College," one person requested. "Mills College is a very good and quiet and pleasant campus," another opined. As they say in the real-estate business. location, location, location. 

More live seminars are in development for late summer and fall in the Bay area. Watch your email in-box for announcements about the topics and dates of these continuing-education events at Mills College, as long the administration keeps inviting us back for slow Saturdays on the Oakland campus.

Last Saturday's seminar, "Rating PD: Tricks of the Trade," will be available in a couple of weeks as a distance-learning course. Call Sam or Jake at 805-484-0333, ext. 113 or 133 about getting enrolled. 

The Doctor Who Paid Us a House Call

It was a treat listening to Dr. Gunnar Anderssen, the senior editor of the AMA Guides 5th Edition last month. His dry wit had the audience in Studio City chuckling with lines such as this one, "When the Devil reads the Bible, his interpretation is different." Someone asked him what is the purpose of the AMA Guides, to which he replied, "To read them."

One person left a comment that Gunnar's devil-may-care observations about California comp disability law (i.e., Almaraz-Guzman) led one attendee to joke that he was packing up practice and moving to Illinois, where Anderssen has an orthopedics practice at Rush University Medical Center in the heart of Chicago. Illinois uses the latest edition of the Guides, the Sixth, to evaluate permanent disability. 

On the drive from LAX to Studio City, I got into a conversation with him about back pain and what type of activities to avoid. Dr. Anderssen revealed that astronauts coming back from long missions aboard NASA space vehicles experienced back pain once they returned to Earth. The time in weighless space was the culprit, Dr. Anderssen concluded after studying the problem for NASA. As a result, astronauts now have exercise equipment that puts downward pressure on their spinal column, mimicking what happens naturally on Earth. The spine needs compressing to stay healthy. 

Also, you're taller in the morning than you are late in the day. The disc material between our vertebrae dehydrates during our waking hours and shrinks. This causes a person to shrink in height, too. While we sleep at night, our bodies naturally rehydrate the disc material, so we regain our lost height overnight.

NY Board Intends to Adopt Use of ICD-10 Next Year

The New York Workers' Compensation Board has announced that it will require use of the ICD-10 codes (International Classification of Diseases, 10th Edition for diagnosis and procedures) on Oct. 1, 2013. New York is taking this action to promote "consistency between medical systems and to avoid imposing significant costs to support two diagnostic coding systems,"Chairman Robert Beloten said. 

The Board expects to require use of ICD-10 on a timetable consistent with Medicare and Medicaid. The Center for Medicaire and Medicaid Services (CMS) has information on its website. Questions about ICD-10 and its impact on New York's workers' compensation system should be emailed to ide10@wcb.ny.gov.

Summer Class Schedule 

Registration is open for all of the following:

JUNE 2, BUSINESS EXPO CENTER IN ANAHEIM

"Your Liens - When to Hold 'Em, Fold 'Em and How to Settle."

With Jon Brissman, Judge Paige Levy and attorney Sean Hermanson. Focus is on evaluating liens, preparing to litigate liens and going to trial or settlement conference.

Registration and CE Credit Details: View

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JUNE 23, WORKCOMPCENTRAL IN CAMARILLO

"How to Write a Rateable Psyche Report"

Led by Dr. Julie Armstrong, PsyD. She will talk about the medical-legal system for workers' comp, the psyche component of a claim, and what a rateable report must contain.

Dr. Julie Armstrong, Psy.D, is a QME who performs psychology evaluations regularly as a panel or agreed evaluator. Julie is also a registered nurse and clinical nurse specialist, and worked for 13 years at UCLA's Neuropsychiatric Hospital. She also is interviewed on TV news and the Discovery Channel crime series, "Wicked Attractions."

Registration and CE Credit Details: View

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WEBINAR - BURN INJURIES IN THE WORKPLACE

Friday, June 1 at 1 p.m. presented by Dr. Peter Grossman of the Grossman Burn Centers. 

This is a free continuing-education program from WorkCompCentral, part of the monthly "One on One at 1" series. Risk managers, nurse case managers, comp program managers, claims supervisors, underwriters, insurance brokers, claims consultants and managed-care representatives are strongly encouraged to participate. 

Registration and CE Credit Details: Register

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WEBINAR - A SURVIVAL GUIDE FOR DOCTORS IN CALIF. WORK COMP

Tuesday, June 19 at 1 p.m. (RESCHEDULED TO MID-JULY - TO BE ANNOUNCED)

Led by managed-care and workers' comp specialist Maureen Bennington. This webinar offers a list of do's and dont's for treaters that practice workers' comp medicine in California. Target group includes: treating physicians, specialists. orthopedic surgeons, physical rehab/chiropractic, medical practice groups, medical office managers, medical
billers and anyone who treats or see patients in Calif. comp. 

Call 805-484-0333, ext. 1 for more information. (Registration for this webinar is pending).

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