Author: WorkCompAcademy

In September 2006, Massoud Kaabinejadian filed a workers’ compensation claim – based on work-related stress and discrimination – which was ultimately denied because his length of employment was only 177 days and less than the six months required by the Labor Code. (Lab. Code, § 3208.3, subd. (d).) Kathaleen Miller served as opposing counsel, representing Rabobank, his employer, and its workers’ compensation insurer. On behalf of her clients, Miller contended Kaabinejadian was properly terminated for aggression toward coworkers and creating a hostile work environment. Miller served a medical record subpoena on Kaabinejadian’s medical provider seeking information about his alleged injuries. After his claim was denied, Miller also prepared and filed a response to his WCAB petition for reconsideration.

In May 2012, Kaabinejadian filed a civil complaint for abuse of process and breach of privacy against Miller. For the first cause of action, he alleged that Miller’s answer to his petition for reconsideration falsely stated that plaintiff had tried to assault a witness, Cheryl Walker, during the workers’ compensation hearing on May 18, 2011. Plaintiff asserted that Miller had made the statements in the answer to retaliate against him. For the second cause of action, plaintiff alleged that Miller had wrongfully subpoenaed his medical records, again as retaliation.

In July 2012, Miller filed a special motion to strike the civil lawsuit pursuant to Code of Civil Procedure section 425.16, asserting that Miller’s litigation conduct constituted participation in a protected activity and plaintiff could not demonstrate a probability of success because Miller’s conduct was subject to the litigation privilege afforded by Civil Code section 47 (“section 47”).

Miller submitted a declaration, describing the facts of her representation during the workers’ compensation proceeding – including that she had subpoenaed medical records from plaintiff’s treating physician and that she had witnessed plaintiff try to assault Walker, the human resources director for Rabobank. In her answer to plaintiff’s petition, Miller stated that plaintiff had demonstrated “anger and aggressive behavior” at the workers’ compensation hearing: “Following the conclusion of testimony by Cheryl Walker . . . the applicant sprang to his feet and attempted to assault the witness. But for the actions of Mr. Miguel Martinez (Pinkerton Consulting and Investigations) and Mr. Chris Solberg (California Highway Patrol), it appeared he would have physically assaulted Mrs. Walker. She fled the courtroom in tears sheltered by Mr. Martinez, while Officer Solberg confined the applicant to his chair.”

In his opposing declaration, plaintiff described Walker’s purported discriminatory treatment of him. He also set forth an account of the years spent litigating his workers’ compensation claim. He contended that Miller had obstructed his discovery efforts, mishandled his medical records, and interfered with his Independent Medical Examination (IME). Plaintiff made numerous efforts to have Miller held in contempt and sanctioned. Plaintiff vehemently disputed Miller’s account of his purported assault on Walker. He denied he was restrained, confined, admonished or criticized for his behavior at the hearing. The recorded minutes for the hearing contain no mention of the attempted assault. Plaintiff asserted that Officer Solberg was prepared to testify in favor of plaintiff. Plaintiff also described his objections to Miller obtaining the records of his treating physician, Dr. Jeffrey Pearson, and disseminating them to non-medical personnel.

After a hearing, the trial court granted defendant’s anti-SLAPP motion based on a determination that Miller “had met her burden of showing that the activity alleged is protected under section 425.16” and that the litigation privilege (section 47) bars plaintiff’s claims. Kaabinejadian appealed the dismissal which was affirmed by the Court of Appeals in the unpublished case of Kaabinejadian v Miller.

“A SLAPP suit – a strategic lawsuit against public participation – seeks to chill or punish a party’s exercise of constitutional rights to free speech and to petition the government for redress of grievances.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055.) Section 425.16, the anti-SLAPP statute, allows a party to bring a special motion to strike a meritless SLAPP suit at an early stage of the litigation. (Rusheen, at pp. 1055-1056; Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, 708-709 (Dwight R.).) The protected activities described in subdivision (e)(2) of section 425.16 include statements or writings made “in connection with an issue under consideration or review by a . . . judicial body, or any other official proceeding authorized by law . . . .”

The activity underlying plaintiff’s complaint is Miller’s conduct as defense attorney in a workers’ compensation case. As such, plaintiff’s complaint is based on acts preparatory to or in anticipation of official proceedings. The Court concluded that “Miller’s actions were lawful and fully protected by the litigation privilege under section 47.”

Tampa attorney Brad Culpepper has made a name for himself on the football field, in the courtroom and on reality television. But now an insurance company filed a civil lawsuit against him accusing him of workers’ compensation fraud.

For nine years, Culpepper went head to head against some of the biggest and strongest players in the National Football League. He parlayed fame on the field into success as a Florida personal injury attorney, living in a multi-million dollar bayfront mansion. Just last year, Culpepper was selected as a cast member for the CBS reality show “Survivor.”

But now a story in Tampa Bay News reports that nearly four years ago, Culpepper filed for workers’ compensation for injuries he suffered playing in the NFL. Doctors who examined him concluded that he was 89 percent disabled, and the insurance company, Fairmont Premier, gave him a $175,000 settlement. But what began as a claim similar to those made by other NFL players as well is now headed to court. In a lawsuit filed in Orange County, Calif., in July, attorneys for the insurance company say Culpepper lied to the doctors. He is “exquisitely fit and conditioned” and “is not disabled,” the suit says. Moreover, the attorneys say, he is feigning injury while taking part in highly publicized athletic competitions. “Defendant Culpepper’s conduct was fraudulent, deceptive and designed to inflate the value of his claim and to take advantage of and abuse the California workers’ compensation system,” the suit states.

Culpepper attorney Scott Schutzman called the insurance company attorneys’ version of events an “exaggeration.” No one disputes that Culpepper, 45, spent nearly a decade in professional football as a human battering ram. From 1992 to 2000, he was a defensive tackle for the Minnesota Vikings, the Bucs and the Chicago Bears. Before that he spent four years playing for the University of Florida, becoming an All­-American lineman and senior captain for the Gators.

After retiring from the NFL in 2001, he got a law degree, shed 75 pounds from his 280-pound frame and became a personal-injury lawyer in Tampa. In 2012, he became the lead plaintiff in a concussion lawsuit with 25 other players against the NFL. Culpepper also began practicing mixed martial arts, a sport that combines elements from a host of fighting styles. But attorneys for the insurance company say that when he was examined by several doctors in regard to his injury claim, he did not tell them about his new hobby. Had the insurer known, it would never have paid, the suit says.

Rather, the lawsuit alleges that Culpepper told physicians he had many injuries, from head and knee trauma to neurological and vision problems. He reported having “quite a bit of difficulty” with “usual work activities, usual hobbies and recreational activities, driving and sleeping” and could not sit for two hours at a time, according to the suit. “When asked if there are things he cannot do, defendant Culpepper testified that ‘everything is difficult,’ ” the lawsuit says.

In 2013, after the claim was settled, Culpepper was a contestant with his wife, Monica, on the reality TV show Survivor: Blood vs. Water, where veterans of the show compete with loved ones. He was eliminated after 14 days. It was “clean, old-school caveman stuff,” he told the Tampa Bay Times.

Schutzman, Culpepper’s attorney, took issue with the narrative in the insurance company’s lawsuit. “This man played in the NFL for 10 years. He has multiple doctors and medical records, including 14 or 15 MRIs, which show injuries to his knees, to his shoulders, to his head,” he said. “He’s had injury after injury after injury.” The fact that his client exercises and has appeared on a reality TV show is not sufficient to prove that he was never injured or does not continue to suffer, Schutzman said. He also disputed the lawsuit’s contention that Culpepper earned a black belt in mixed martial arts. “He doesn’t have a black belt; he has an honorary black belt,” he said.

However, the website for B.A. Warrior Training Center in Tampa lists Culpepper in its Black Belt Club, noting that “you all worked hard to attain your black belts in kickboxing.”

Although the WCIRB has recommended an increase in California compensation premiums, an improving workers compensation market – including better policy underwriting, increasing comp premiums and a national decline in claim frequency – is driving the National Council on Compensation Insurance Inc. to recommend more decreases in other state workers comp rates for next year.

Boca Raton, Florida-based NCCI, a nationwide workers comp ratings and research organization, is the comp rating agency for 35 states and the District of Columbia. It also provides actuarial data for ratemaking agencies in Indiana and North Carolina. According to an article in Business Insurance, NCCI has submitted workers comp advisory rate filings in 20 states so far this year. Of those filings, 15 have been for rate decreases and four have been for increases.The agency requested rates remain the same in 2015 for Colorado.

Major states in which NCCI has requested decreases include Illinois, which recently approved a 5.5% decrease in workers comp rates for next year, and Oklahoma, which is considering a 7.8% decrease after the state began allowing employers to opt out of the workers comp system this year. Florida also is weighing a 2.5% decrease, the first potential workers comp rate cut for the state in four years. Mr. Burton said the trend is expected to continue as NCCI continues its rate filing season this fall, and said he’s ‘optimistic that the majority … of our filings will be approved as proposed.” “Underwriting results are good, premium is growing, and what has been one of the great stories over the years is (that) lost-time claims frequency has gone down,” Mr. Burton said of trends driving NCCI’s ratemaking this year. This is the first time in several years that NCCI advisory rates are expected to include more decreases than increases.

NCCI said at its annual conference in May that private workers comp insurers’ combined ratio declined to 101% in 2013 compared with 108% in 2012 and 115% in 2011. Meanwhile, private insurers’ workers comp premiums grew 5.4% year over year to $37 billion in 2013, driven largely by payroll growth and insurer pricing increases. Mr. Burton said those positive developments now are starting to make their way into workers comp rate filings.

Pam Ferrandino, executive vice president and casualty practice leader for Willis North America Inc. in New York, agreed that NCCI’s rate filings indicate favorable trends in the national workers comp landscape. She said that improved insurer profitability is allowing some to propose smaller renewal rate increases this year after years of pushing for policy pricing increases of up to 5%. “We’re beginning to see payroll growth, which also allows carriers to back off on some of the rate increases because it gives them a bigger base to spread some of the fundamental expenses across,” Ms. Ferrandino said.

Decreasing rate trends haven’t reached other major states that use proprietary rating agencies. In May, the New York Compensation Insurance Rating Board proposed a 6.8% increase in state workers comp advisory rates, effective Oct. 1. However, the New York Department of Financial Services rejected the proposal in July, keeping rates unchanged from last year. The San Francisco-based California Workers’ Compensation Insurance Rating Bureau has asked the California Department of Insurance to raise the state’s pure premium workers comp rate to $2.77 per $100 of payroll as of Jan. 1, 2015, compared with $2.68 at the start of this year. A WCIRB spokesman said increased workers comp claim frequency in Southern California played a role in its request for a rate hike, and the agency is researching the cause, he said.

Workers comp experts say they’re not surprised that California is outside the trend of falling state workers comp rates. They say reforms passed by the state in 2012 have helped hold down some cost pressures but haven’t completely alleviated them.

The Division of Workers’ Compensation has posted draft Qualified Medical Evaluator (QME) regulations to the online forum where members of the public may review and comment on the proposals.

The draft regulations set forth how parties in a represented case will be able to submit initial QME panel requests online and immediately receive a QME panel. The requesting party will then serve the panel request form, any required documentation, and the QME panel on all parties with a proof of service. The draft regulations also simplify the QME form 105 for unrepresented injured workers.

According to the proposed regulations, “Requests may be made twenty-four hours a day, seven days a week. Requests made on Saturday, Sunday or a holiday will be deemed to have been made the next business day. Requests made Monday through Friday after 5:00 p.m. and before 12:00 a.m. will be deemed to have been made the next business day and requests made between 12:00 a.m. and 8:00 a.m. will be deemed to have been made 8:00 a.m. of the same business day.

There is also a major change to rule § 31.1 “QME Panel Selection Disputes in Represented Cases.” Under the current rule, various disputes between the parties regarding the specialties of the physicians on the QME panel were to be resolved by the Medical Director, The several paragraphs pertaining to this administrative function are to be stricken from the new regulations. Instead, the proposed regulations simply provide that “Any disputes regarding the validity of the panel QME selection list or disputes regarding the appropriateness of the specialty designation may be resolved at the Workers’ Compensation Appeals Board.”

“The division has spent the last year working hard to stay current with the increased volume of panel requests and has remained in compliance. We are excited to further improve upon the process by creating an online system for represented parties,” said DWC Acting Administrative Director Destie Overpeck.

The forum can be found online on the DWC forums web page. Comments will be accepted on the forum until 5 p.m. on September 22.

Medical identity theft has become one of the fastest growing heathcare fraud problems in the nation. Some uninsured patients have been found to use false identification simply to secure free medical care. In a more serious situation, this case reported by the Monterey County District Attorney shows how identity theft can be used in an emergency room to obtain a free supply of illegal pain medication. The lesson here is to be more vigilant in workers’ compensation claim processing to make sure that medical services were actually delivered to the injured worker, especially when pain medication is involved.

Julian Demitre Rosario, age 22, was sentenced by the Honorable Wendy Duffy for insurance fraud and unlawful use of personal identifying information. The defendant was placed on five years of felony probation, ordered to serve 210 days in custody, be subject to search and seizure and pay victim restitution. The court retained jurisdiction over victim restitution for Premier Insurance, Blue Shield, CHOMP and the two individuals whose identity the defendant used to obtain medical treatment. The estimation of the total restitution is approximately $50,000. The defendant was immediately remanded into custody after sentencing.

During the month of July, 2014 on four different dates, the defendant went to CHOMP’s emergency room complaining of abdominal pain. Each time the defendant was seeking to obtain narcotics. He informed personnel of his true name one time, a variation of his name another time and two other individuals’ names the other two times. On the last date while the defendant was receiving treatment from a doctor, another emergency room doctor recognized the defendant and that he was using a false identity and insurance. CHOMP personnel contacted Monterey Police who responded, interviewed the defendant and then arrested him. The defendant had been contacted by police regarding similar allegations on a previous occasion. During the two contacts, he gave inconsistent versions of who he was, his age, and why he was at the hospital.

The case was investigated by Monterey Police Officer Amy Carrizosa and District Attorney Investigator Mark Trueblood. This case was handled by the Healthcare Fraud Unit of the Monterey County District Attorney’s Office. This unit aggressively investigates and prosecutes prescription drug fraud and insurance fraud in Monterey County. The unit also investigates and prosecutes cases involving use of another’s identity to secure healthcare benefits; healthcare related embezzlement; unlawful healthcare solicitations/referrals; fraudulent or inflated pharmacy billings; prescription fraud and abuse; out-patient surgery center fraud; and fraudulent disability claims.