Author: WorkCompAcademy

Insurance Commissioner Dave Jones announced that he is appointing George Mueller as Deputy Commissioner of the Enforcement Branch of the California Department of Insurance (CDI). Mueller will lead the department’s law enforcement and criminal investigative functions. The enforcement branch is the largest component of the Department of Insurance and consists of 400 professionals, including over 200 sworn peace officers, who investigate various insurance crimes, including workers’ compensation, auto, homeowner, health, life, annuity, and disability insurance fraud and crimes committed by insurance agents and brokers and those pretending to be agents and brokers.

“I’m pleased to welcome George Mueller to the department,” said Insurance Commissioner Dave Jones. “Chief Mueller brings a wealth of law enforcement leadership experience and expertise that will benefit our enforcement branch, the entire department and the people of California.”

A sworn peace officer, Mueller comes to the department from the Los Angeles County District Attorney’s Office where he most recently served as assistant chief of the Bureau of Investigation. Mueller has served in law enforcement since 1985 where he began his law enforcement career working for the City of Alhambra Police Department as a police officer and then detective.

Appointed assistant chief by the Los Angeles District Attorney in 2009, Mueller also served as a captain, lieutenant, supervising investigator and various other roles in the district attorney’s office. He has extensive experience overseeing complex criminal investigations with emphasis in combating insurance and health care fraud, workers’ compensation fraud, elder abuse and other high impact crimes.

Mueller graduated with honors from the University of Southern California with a bachelor’s degree in public administration and earned his master’s in public administration with a specialization in judicial administration from the same university.

Mueller is also a graduate of the FBI national academy and the Senior Management Institute for Police. He has been a featured instructor and speaker at numerous law enforcement conferences, including the FBI national academy conference and the International Summit on Human Trafficking in Ottawa, Canada. Mueller has also made presentations to representatives from Hong Kong and the Philippines and to the office of the attorney general in Thailand.

Mueller will begin his new assignment with CDI on July 20. Mueller is filling the Deputy Commissioner position left vacant after Eric Weirich retired in December, 2014.

Following a public hearing on May 22, 2015 and a review of submitted comments, the Division of Workers’ Compensation (DWC) has made revisions to the Qualified Medical Evaluator (QME) regulations.

Members of the public are invited to present written comments regarding the proposed modifications to dwcrules@dir.ca.gov until 5 p.m. on Saturday, June 20, 2015.

Proposed revisions include the following requirements and clarifications:

1) Initial represented panel requests postmarked after September 3, 2015 will not be accepted or processed by the Medical Unit for initial represented panel requests only. The last day to mail in panel requests will be September 3, 2015.
2) Effective October 1, 2015, all initial panel requests must be submitted electronically.
3) Parties will have ten days from service of the panel list to strike a doctor.
4) Disputes regarding the validity of panel requests must be resolved by a workers’ compensation judge.
5) Disputes regarding the appropriateness of the specialty designated must be resolved by the Medical Director. Either party may appeal the decision with a workers’ compensation judge. • MAA Anesthesiology is added as a specialty listing.
6) QME Form 105 is amended to make a spelling correction and to indicate that the requesting party must select only one specialty.

The notice and text of the regulations can be found on the DWC proposed regulations page.

While in the course of his employment, plaintiff Marco Lopez was a passenger in a big rig truck driven by his co-worker. The truck was hit by another vehicle and Lopez was injured as a result.

After the accident Lopez, in propria persona, filed a form complaint for negligence against his employer who filed a demurrer to the complaint on the ground workers’ compensation barred a civil action. Lopez did not oppose the demurrer, and the court sustained it on the basis of the exclusive workers’ compensation remedy. (Lab. Code, § 3706.) The court took judicial notice of plaintiff’s workers’ compensation application in which he admitted the accident occurred during the course and scope of his employment. It granted Lopez “conditional leave to amend” if he could properly allege his employer had no workers’ compensation insurance, thereby excepting the case from the workers’ compensation statutory scheme.

Subsequently, an attorney filed an amended complaint on plaintiff’s behalf, alleging the employer negligently hired the driver and, on information and belief, that the employer was self-insured and had “used that position to deny [p]laintiff medical coverage and needed medical treatment.”

The employer again demurred, The court sustained the demurrer without leave to amend based on the exclusivity of workers’ compensation statutes. The dismissal was sustained by the Court of Appeal in the unpublished case of Lopez v The Fishel Co. The court concluded that there “is no question the court properly sustained the demurrer without leave to amend. Plaintiff alleged he was defendant’s employee and was injured while on the job.”

The court took judicial notice of plaintiff’s workers’ compensation claim form and the compromise and release form showing the claim was settled. With few exceptions, the workers’ compensation statutes provide an exclusive remedy for job-related injuries. Thus, absent an exception, a civil action may not be filed against an employer. In sustaining the demurrer to the original complaint, the court granted plaintiff leave to amend if he could plead such an exception, i.e., that defendant had no workers’ compensation insurance. Plaintiff made no such allegation in the amended complaint.

Plaintiff asserts defendant is self-insured, complaining it refused to authorize over $700,000 for his necessary medical treatment. But the compromise and release order shows the claim was fully settled. Any unhappiness with the result cannot be litigated in this forum. Plaintiff’s argument the settlement did not include this lawsuit has no merit. This action itself is improper and in any event could not be included in a settlement of the workers’ compensation claim.

On the issue of sanctions, the Court noted “there was no valid basis for filing the complaint to begin with, much less the appeal. The workers’ compensation body of law makes clear the statutory scheme is exclusive, absent a narrow set of exceptions.” We are aware sanctions should be awarded only in the most egregious cases. But all of the circumstances convince us this is such a case. In addition to the wholly improper form of the brief, the contents are equally deficient. The brief is confusing and unclear. The case contains no unique issues or complicated facts, nor was there an argument that existing law should be extended, modified, or reversed, as might justify filing this appeal. We do not believe a reasonable person would have thought it proper to file it.

“Sanctions are awarded against plaintiff or against his lawyer or against both. We remand to the trial court to determine against whom the sanctions are to be awarded and the amount of sanctions.” Lopez was represented by the Justice Law Center and Lee H. Durst when he filed the appeal.

In an unrelated case, Durst, a California lawyer for 30 years, was accused in a lawsuit of botching his client’s legal claim against the mortgage company, which foreclosed on her San Juan Capistrano home. In 2001 a jury returned a verdict that said the Santa Ana lawyer was to pay $21 million to the woman who claimed that his faulty advice in business dealings left her destitute. State Bar records show no public record of discipline or of administrative actions against Durst.

New research presented at this year’s Euroanaesthesia conference in Berlin shows that American patients undergoing orthopaedic surgery receive more treatments for pain and that their experience of pain differs in some aspects to orthopaedic patients internationally. The study is by Drs Winfried Meissner and Ruth Zaslansky, University Hospital Jena, Germany, and Dr C. Richard Chapman Utah, Pain Research Center, Salt Lake City, USA. All researchers are part of the international PAIN OUT research group.

Poorly controlled pain after surgery is a major problem internationally despite efforts to improve it. American hospitals regularly assess pain because it is a requirement for accreditation. Regular pain assessment is regarded as a cornerstone for good pain management as it allows gauging of a patient’s needs for treatment. Prior to this study, the research team believed that because pain assessment is an accreditation requirement in the USA, there would be meaningfully lower pain reports on the first day after surgery in USA patients compared with other countries, where pain measurement is not uniformly an accreditation requirement.

Using the PAIN-OUT international acute pain registry to examine perioperative pain control in a large group of patients undergoing different orthopaedic surgical procedures, the authors compared patient reported outcomes in a pooled patient sample from four American (n= 1011) (different regions of the US) versus 45 International hospitals (INT) hospitals (n = 28,510). The international hospitals involved in the study were based in Belgium, France, Germany, Italy, Spain, Sweden, Switzerland, Moldovia, Romania, Malaysia, Ukraine, Serbia, Israel and the UK.

The study found that American patients, contrary to prediction, had higher mean worst pain scores than INT patients (7.5 on a standard 11 point pain measurement scale versus 5.2). American patients also reported that they felt ‘greater participation in decisions about pain treatment’ and that the pain had a more severe effect on their level of anxiety and helplessness. Yet, there were no differences in other outcomes, such as the time patients reported spending in severe pain on the first day after surgery or in the extent of relief provided by pain treatments. Outcomes were measured using standard rating scales employed in clinical pain studies.

These findings were surprising and so the authors did further analyses to check pain management practices provided to American patients as compared with INT patients. They found that American patients were actually receiving more opioid medication in the different phases of surgery – before hospitalization, just before surgery and during the first day after surgery. They also received more regional analgesia after surgery. INT patients received more non-opioid medications in some phases of treatment.

Since high amounts of opioids can sensitize patients to nociception (meaning they experience worse pain), the authors then checked to see if American patients receiving the lowest opioid doses also experienced more pain. They found that the 25% of USA patients receiving the lowest doses of opioids had a higher worse pain score (6.62) than the 25% of INT patients receiving the lowest doses of opioids (4.93). This indicates that sensitization by opioids is not necessarily the reason for the observed differences.

The authors say: “The higher mean worst pain score in USA patients on the first day after orthopedic surgery does not have a simple explanation. USA patients receive more pain medication than international patients and yet report worse pain. This merits further investigation.”

The authors conclude: “The findings of this study are puzzling as American patients were treated according to current clinical practice guidelines to a greater extent compared to INT patients. Their pain is regularly assessed; they received more opioids and regional analgesia. Are the differences cultural? Perhaps pain is measured mechanistically and this in itself is insufficient in procuring good management of pain? Could frequent pain measurement draw patient’s attention to the pain and intensify the experience? Maybe opioids sensitize some aspects of the post-surgical experience of pain? Further research is needed to understand the findings.”

The Court of Appeal has scheduled oral argument in the most closely watched case in California workers’ compensation. The case of Frances Stevens v WCAB is now set for oral argument on September 30, at 9:00 am at the First District Court of Appeal in San Francisco.

Stevens tripped on a rug and broke her foot as she carried boxes of magazines. The relatively simple break triggered serious nerve damage and she was eventually diagnosed with chronic or complex regional pain syndrome. She claims to be mostly confined to a wheelchair and she was awarded total permanent disability.

A dispute arose between Stevens and SCIF about two years ago over her medical care. For several years applicant had the assistance of a home health aide and used certain medications prescribed by Dr. Jamasbi to relieve her symptoms. In late 2012, the home health aide assisting applicant was injured and was unable to continue to provide those services. This led Dr. Jamasbi to submit a Request For Authorization (RFA) to defendant for a new home health aide along with a request to refill four prescriptions which were submitted to UR and denied. The request was also denied after the IMR process which took seven months to complete. In this case, the IMR determination states that that “Medical treatment does not include home maker services like shopping, cleaning, and laundry, and personal care given by home health aides like bathing, dressing, and using the bathroom when this is the only care needed.”

The applicant appealed and the WCJ found there was no provision for a reversal of the IMR finding since the labor code provides only limited circumstances upon which IMR can be reversed. The WCAB denied reconsideration in the panel decision of Stevens vs Outspoken Enterprises Inc. One of the key aspects of the Stevens argument was the constitutionality of the IMR process, an issue the California Applicants Attorney Association has been making since passage of SB 863. In response to this challenge, the WCJ found “While the Constitution confers on the Legislature the power to establish a system of workers’ compensation, section 3.5 of article III of the Constitution withholds from administrative agencies the power to determine the constitutional validity of any statute.” The WCAB agreed that it could not rule on the constitutional issue, and denied reconsideration saying “In sum, for purposes of appeal to the WCAB it does not matter whether the reasons given for an IMR determination support the determination unless the appealing party proves one or more of five grounds for appeal listed by the Legislature in section 4610(h) by clear and convincing evidence. Applicant did not do that in this case. The WCJ’s May 27, 2014 denial of applicant’s IMR appeal is affirmed.”

The First District Court of appeal has agreed to hear the case, and this will be the first appellate court to address the constitutional challenge to the IMR process. Briefs have been filed by a great number of Amicus parties including the California Workers’ Compensation Institute, the Property Casualty Insurers Association of America, the California Chamber of Commerce, Voters Injured at Work and the California Applicants’ Attorneys Association.

Another similar constitutional challenge to the IMR process is working its way through the Third District Court of Appeal that recently agreed to hear the case of Ramirez v The State of California Department of Health Care Services involves nearly identical issues. Stevens is more favorable to applicants since the 1st District Court of Appeal is the most liberal, and the Stevens case has the most passionate facts. The 3rd District is located in Sacramento and Its jurisdiction consists of twenty three counties many of which are conservative. Four of the sitting associate justices were appointed by Governor Schwartzenegger. Should the 3rd District in Ramirez rule differently than the 1st District in Stevens, a quagmire would be created that would trigger the intervention by the Supreme Court. Thus, for the defense, the Ramirez appeal is strategically a gift that gives it a foot in the door of a more conservative court.

Typically an opinion is published shortly after oral argument is concluded. It is likely that there will be a decision in Stevens by the end of the year. It is also likely that no matter what outcome, the case will be headed to the California Supreme Court.