Tag Archives: medical report

Court Reverses Award of Psychiatric Injury

The First Appellate District Court of Appeal has closed what could have turned into a significant expansion of the concept of “sudden and extraordinary employment condition” contained in Labor Code § 3208.3(d) with a reversal of a W.C.A.B. decision awarding benefits for a psychiatric injury in Travelers Casualty and Surety Co v W.C.A.B. (Dreher).

The applicant was employed as a live-in maintenance supervisor for an apartment complex and had been employed for only 74 days at the time of his injury on Oct. 19, 2009. He was walking in the rain from one building to another in the complex, when he slipped and fell on a slippery concrete sidewalk sustaining multiple significant injuries, including fractured pelvis, injuries to his neck, right shoulder, right leg and knee. He also suffered gait derangement, a sleep disorder and headaches. As a result of those injuries, he developed psychiatric complaints as a consequence of his multiple surgeries and continuing issues. A medical report supported a relationship between his injury and a psychiatric disorder.

However, at trial, the WCJ denied his claim for his psychiatric condition on the basis that his employment failed to meet the minimum six-month requirement for employment under Labor Code § 3208.3(d) and further determined the exception for a “sudden and extraordinary employment condition” had not been met. On reconsideration, a split panel reversed the WCJ holding and determined that the applicant’s fall on slippery concrete met the sudden and extraordinary requirement of the statute. The Court of Appeal granted Travelers’ petition for writ of review.

After dealing with some procedural issues, the court got to the heart of the matter. Reviewing the multiple cases outlining the criterion for applying the sudden and extraordinary employment condition, the court refused to find that a slip and fall on a sidewalk met the criterion. Citing the landmark decision in Wal-mart v W.C.A.B., the court noted that the mere fact the injury was accidental did not meet the statutory exception:

“If the argument were made that an accidental injury constitutes a ‘sudden and extraordinary employment condition,’ we would reject it. For one thing, such an interpretation would mean that psychological injuries resulting from accidents would not be subject to the six-month rule, but such injuries arising from cumulative physical injury would be governed by that limitation; this distinction would make no sense, and we are reluctant to attribute irrational intentions to the Legislature.”

See Also: Appeals Court Settles Key Work Comp Issue

The court also rejected the argument advanced by applicant that the unexpectedly catastrophic nature of the injury served as a basis for an extraordinary employment condition.

“Here, the statute provides that the six-month limitation does not apply if the psychiatric condition is caused by a ;sudden and extraordinary employment condition.’ (§ 3208.3, subd. (d).) The statute does not include the nature of the injuries resulting from an incident as a basis for the exception. Had the Legislature intended to include the nature of the injury as a factor in the definition of a sudden and extraordinary employment condition, it knew how to do so….

“Accordingly, although Dreher’s injury was more serious than might be expected, it did not constitute, nor was it caused by, a sudden and extraordinary employment event within the meaning of section 3208.3, subdivision (d). The evidence showed that Dreher routinely walked between buildings on concrete walkways at the work site and that he slipped and fell while walking on rain-slicked pavement.”

The court further noted the burden was on the employee to prove the sudden and extraordinary employment condition, and the applicant’s testimony that he was “surprised” by the slick surface did not demonstrate that his injury was caused by an uncommon, unusual or totally unexpected event.

The matter was remanded to the W.C.A.B. with instructions to deny the claim for psychiatric injury.

Comments and Conclusions:

This is a relatively short appellate decision but with a firm result. The court was clearly of a mind that the W.C.A.B.’s interpretation of what constituted a sudden and extraordinary employment condition did not meet the common sense test for legislative interpretation. Commissioner Caplane, in her dissent in the W.C.A.B. decision, had noted that the majority’s opinion on what constituted a sudden and extraordinary event could be applied to virtually every claim because injuries were almost always unexpected when they occurred. While the court did not make a specific comment, the idea that an employee slipping on a wet sidewalk was in any way shape or form “extraordinary” simply did not pass the smell test.

The court’s holding that the nature of the injuries sustained did not figure into the equation is also of considerable help in defining application of the rule under Labor Code § 3208.3(d).

While the court’s interpretation of Labor Code § 3208.3(d) is helpful for that section, I do not think this decision is going to have any impact on our understanding of the language in Labor Code § 4660.1(c)(2)(B), with the exception created for “catastrophic injuries.” That section clearly intends there be consideration of the nature of an injury in the determination of whether additional psychiatric sequelae is to be included in the calculation of PD.

What Physicians Say on Workers’ Comp

At the 2015 Harbor Health MPN Medical Directors Meeting, a panel discussed current issues affecting workers’ compensation. The panel consisted of:

  • Dr. Tedd Blatt (moderator)
  • Dr. Craig Uejo
  • Dr. Don Dinwoodie
  • Dr. Minh Nguyen
  • Dr. Kayvon Yadidi

Question: What are the things physicians can do or should do to improve workers comp?

  • Physicians need to assist in training their peers. There is inadequate training of occupational medicine physicians on the nuances of the workers’ compensation system. This is something other stakeholders in the system could also assist with.
  • Physicians need to be considering psycho-social issues in the treatment of patients. These can have a significant impact on claim outcomes.
  • There is not enough training for physicians on how to properly write medical reports, especially in the workers’ compensation arena.
  • It is imperative that physicians are responsive to questions from the payers. Failure to respond in a timely way to questions causes delays in reimbursement and creates animosity.

Question: How should physicians be approaching the issues of opioids, and are payers willing to consider alternatives?

  • This is something that needs to be considered from the initial visit forward. These drugs can lead to long-term issues, and prescribing them cannot be taken lightly. Too many physicians just prescribe these to make the patient happy.
  • There are inadequate detox programs to wean people off these drugs. Patients tend to bounce from one pain clinic to the next, which just continues the cycle of using these drugs.
  • Payers are often hesitant to authorize detox programs or non-pharmaceutical pain management alternatives because they view these things as experimental.
  • Physicians will soon be required to utilize CURES, the California prescription drug monitoring program, prior to prescribing opioids. This is intended to identify people who are doctor-shopping to abuse the opioids.
  • If you don’t prescribe the opioids, the patient will find someone else who does. Until there is a consistent approach to how these drugs are prescribed, this will continue to be a problem.
  • This is the greatest physician-created public health crisis in the history of the U.S. These drugs are massively overprescribed and should only be used for a very short term for post-operative care. They should never be used for long-term treatment.

Question: What do you think about utilization review? Are there things that you feel should always be subject to utilization review?

  • All surgeries should be subject to mandatory utilization review. Too many physicians are conducting unnecessary surgeries, which cause harm to their patients.
  • Compound medications and medications not usually prescribed in workers’ comp should be subject to utilization review.
  • There needs to be a level of common sense in UR. It should not be used if the recommended treatment is part of the normal course of care for an injury. Payers also are sometimes paying more for the UR review than the actual service requested costs.
  • If you have quantified that a physician is producing better outcomes for injured workers, these physicians should be subject to less utilization review.
  • The UR process needs to be more selective and focus on the outliers, not routine care. The perception from providers is that UR is being grossly overused. Physicians view this as punitive.

Question: More physicians are becoming part of larger health systems. Is this a positive change?

  • This is a positive change because the physicians have a better support structure to assist in writing reports and navigating the nuances of the workers’ compensation system.

Question: Is the Affordable Care Act going to affect workers’ compensation?

  • We will see an increased focus on outcomes, and, if a physician does not deliver superior outcomes, then payers will not refer patients to them for treatment.
  • Many of the policies under the exchanges have high deductibles and, because of this, it is likely we will continue to see pressure to push treatment into the workers’ compensation space.

Question: What changes would you recommend on the claims administrator side?

  • There needs to be more focus on better internal communication within claims organizations. Physicians end up sending reports and responding to requests multiple times because the claims organization does not have good internal communication.
  • The fee structure is affecting the number of physicians willing to treat workers’ compensation patients. Many specialists have stopped treating workers’ compensation patients because they do not feel adequately compensated for the amount of work required.

66 Red Flags in Work Comp Claims

This article started as another “Top Ten” list, but I quickly realized that, when looking for potential fraud or compensability issues in a workers’ compensation claim, there are many more than 10 red flags – I came up with 66. You can probably think of more. Please add them in the comments.

The following is a loosely organized list of red flags signaling potential fraud or abuse by a workers’ compensation claimant. Keep in mind that even if the claim has all of these red flags, this does not necessarily mean the claimant is committing fraud or that you have grounds to deny compensability of a claim. However, the presence of some of these red flags should cause you to investigate further. Also note that I am using the term “fraud” broadly to include general wrongdoing on the part of the claimant and not specifically referring to a legal cause of action.

Here we go:

  1. Late reporting – If an employee is really injured on the job, it is unlikely the employee will wait days or weeks to report the injury.
  2. The details of the accident are sketchy.
  3. The employee has difficulty recalling what happened.
  4. The employee changes the description of the accident when inconsistencies are pointed out.
  5. The nature of the injury is not consistent with the nature of the work done by the employee.
  6. The date, time or location of the accident is unknown or forgotten.
  7. The details of the accident are inconsistent with the employee job duties.
  8. The accident occurs in an area where the injured employee would not normally be.
  9. Fellow workers hear rumors circulating that the accident was not legitimate.
  10. The employee gives completely different versions of the accident to the employer, the adjuster and the doctor.
  11. The employee keeps modifying the story of what happened.
  12. The employee leaves out pertinent information.
  13. The details of the accident vary from medical report to medical report.
  14. There are no witnesses to the accident, and the employee normally works around other people.
  15. There are witnesses, but their version of the accident differs from the employee’s.
  16. The nature of the injury is unusual for the employee’s line of work.
  17. The employee’s co-workers express doubt that the accident occurred.
  18. The employee is disgruntled about some aspect of his job.
  19. The employee was demoted or passed over for a promotion.
  20. The employee is on the list to be laid off.
  21. The employee is on “positive improvement needed” status and is about to be terminated.
  22. The employee has had numerous prior employers.
  23. The “accident” occurs immediately before a strike, plant closing or the end of seasonal employment.
  24. The employee is a new hire.
  25. The accident occurs near the end of probationary period.
  26. The claimant is a seasonal worker.
  27. The employee has an early Monday morning accident before the supervisor or other employees see him on the job (meaning the accident might have occurred off the job over the weekend).
  28. The injured employee is not at home during the normal workday.
  29. The employee is always sleeping when the adjuster calls or cannot be disturbed.
  30. The employee’s family member is vague or noncommittal about when you can reach the employee.
  31. The employee uses the address of friends or family members and has no definite address or uses a Post Office box as an address.
  32. The employee’s spouse is not working and is drawing workers’ comp indemnity benefits, Social Security disability payments, welfare or unemployment insurance, and the employee wants the same lifestyle.
  33. The employee inquires about a settlement early in the claim process.
  34. The employee was having financial problems.
  35. The employee is nearing retirement age.
  36. The employee files for benefits in a state other than where the accident occurred.
  37. The employee fails to report other work income while drawing indemnity benefits.
  38. The employee took excessive time off just before the injury.
  39. The employee is in the middle of a divorce or other family disturbance.
  40. The Social Security number used by the employee belongs to someone else.
  41. The employee applies for Social Security benefits before the injury occurs.
  42. Income from workers’ comp, disability or other sources exceeds the employees prior after-tax income.
  43. The employee protests about returning to work and never seems to improve.
  44. All the injuries are subjective – pain without trauma, soft-tissue, emotional.
  45. The employee changes doctors frequently (“doctor shopping”) or changes doctors when released to return to work.
  46. The employee has excessive treatment for soft-tissue injuries.
  47. The medical treatment reported by the employee is different from the medical care stated in the medical reports.
  48. The nature of the medical treatment changes from one body part to another after the employee has been treating for a while.
  49. The employee misses medical appointments.
  50. The employee fails to show up for an independent medical examination.
  51. The employee refuses or delays diagnostic testing.
  52. There are whiteouts, corrections or erasures on medical forms submitted by the employee.
  53. Pain is exaggerated.
  54. Invalid or inconsistent effort is reported on the functional capacity evaluation.
  55. The employee has a history of multiple workers’ comp claims or reporting subjective claims of injury.
  56. The injury relates to a preexisting medical condition or health problem.
  57. The length of recovery is excessive for the nature of the injury.
  58. The employee who has been off work for a while has calluses on hands or grime under the fingernails.
  59. The medical reports reflect “muscular,” “tanned” or other adjectives that reflect that the employee is in good health.
  60. The employee is unable to work because of the injury but is seen painting her house, mowing the lawn, carrying heavy objects, etc.
  61. The employee has a high-risk hobby or does other activities involving considerable physical exertion.
  62. Surveillance reflects physical activity greater than what is reflected in the medical reports.
  63. The employee is unusually pushy to settle the workers’ comp claim.
  64. The employee has extensive medical knowledge but no training in the medical field, or uses extensive insurance terminology but has no work experience in the insurance field.
  65. The employee is a part of a group of employees using the same doctor and the same attorney for their workers’ comp injuries.
  66. The attorney’s letter of representation is the same day of the injury or even dated before the “injury.”

Please share your experiences in the comments!

Disclaimer: The information in this article does not constitute legal advice, nor is it intended to create an attorney-client relationship. Every situation is unique, and I encourage you to seek legal advice from a licensed attorney for your particular situation.