BulletinSeason of Excitement

May 1, 20170

Spring is upon us. A season of growth and new beginnings. A perfect time to introduce our fresh, exciting new website. We are confident you will enjoy the new look with a cleaner palette and enhanced functionality. Please visit us at www.mulfil.com to experience it for yourself and don’t forget to check out the new photos and interesting bio’s of all of your favorite M & F attorneys too!

This spring has not, however, been as exciting for everyone. Following are some concerning charges in provider fraud and recent developments in case law.

Fraud charges brought. Insurance commissioner Dave Jones and Orange county district attorney Tony Rackauackas have brought charges against over two dozen physicians, pharmacists and business owners in conjunction with a $40 million dollar kick back scheme. The defendants have been charged for their respective parts in this fraudulent scheme of billing for unnecessary services and diagnostics. Reportedly 13000 patients and at least 27 insurance carriers have fallen victim. Hopefully justice will prevail and convictions are soon to follow. We will update you on this developing story.

Motor vehicle accident constitutes a violent act. This is a case that should frighten us all. Applicant in the case of Madsen vs Cavaletto Ranches was involved in a motor vehicle accident while employed by the defendant as a Truck Driver. The collision resulted in applicant’s truck rolling over and pinning him inside the vehicle. He was trapped upside down in the truck for 30 – 45 minutes and had to be extricated using the “jaws of life”. As a result, applicant alleged injury to the head, neck, shoulders, nervous system and psyche. The applicant was evaluated by Qualified Medical Examiners for the physical and psychological issues. The report of the physical injuries rated 39% permanent disability. The psychiatric report rated 35% permanent disability. At Trial, the issue was whether the applicant’s psychiatric impairment was compensable under Labor Code Section 4660.1 (c). The Workers Compensation Judge found that Labor Code Section 4660.1 applied and applicant was barred from receiving additional permanent disability for the injury to the psyche. However, he was entitled to an Award of medical treatment for that injury. The Workers’ Compensation Judge issued an Award of 39% permanent disability, based solely on the physical injuries. Applicant filed a Petition for Reconsideration arguing that the injury to the psyche was the direct result of the motor vehicle accident, not as a consequence of the physical injuries. In addition, the psychiatric injury came within the “violent act” exception to Labor Code Section 4660.1.The WCAB granted the Petition for Reconsideration. First, the Board noted that Labor Code Section 4660.1(c) does not apply to psychiatric injury directly caused by events of employment. The Commissioners went on to state that even if Labor Code Section 4660.1(c) was applicable, the applicant’s psychiatric injury resulted from a “violent act”. Citing Larson vs. Securitas Security Services, the Commissioners described a violent act as “characterized by either a strong physical force, extreme or intense force or an act that is vehemently or passionately threatening.” Here, the circumstances of the accident, including being trapped in the vehicle, requiring the “jaws of life”, etc., constituted a violent act. The Workers Compensation Judge’s Award was amended to include permanent disability for the psychiatric injury, combined with the physical injury and resulted in 60% permanent disability.

Falling wrecking ball is a sudden and Extraordinary event. A falling wrecking ball at a construction site might be sudden and extraordinary but it is not exciting for anyone. In the case of Docena vs. Lane Christensen Company, Applicant was hired by defendant as a Laborer on February 24, 2014. After one day on the job, on February 25, 2014, applicant was handling a guide line for a wrecking ball suspended overhead from a crane. The applicant heard a snap, looked up and saw the ball begin to fall. He jumped out of the way, landing on his left side .Applicant filed his Application for Adjudication of Claim on May 8, 2014 alleging injury to his neck, shoulders, hips, knees, upper extremities and psyche. A dispute arose over applicant’s entitlement to temporary disability benefits, it was framed as applicant’s entitlement to temporary disability on a psychiatric basis from May 23, 2014 to present and continuing, subject to the 104–week statutory cap. Among the evidence at the hearing was the report of the psychological QME who diagnosed PTSD and determined that the industrial injury was the predominant cause of the psychological injury. Defendant argued that the claimed injury to psyche was barred by Labor Code Section 3208.3(d) because the applicant was employed for fewer than six months at the time of the incident. Defendant also argued that the “sudden and extraordinary” exception to the 6-month employment rule did not apply. In support, defendant offered the testimony of an industrial hygienist that the construction industry is among the most dangerous professions in the country and that the leading cause of death on construction sites are falls, being struck by objects, being caught between items and electrocution. He also testified that objects falling from cranes are not uncommon events at construction sites. However, he admitted on cross-examination that an employee on his first week on the job site would not expect to be hit by a falling object. The Workers’ Compensation Judge found that the applicant’s psychiatric injury was the result of sudden and extraordinary events and awarded temporary disability benefits. Defendant filed a Petition for Reconsideration which was denied. The Board acknowledged that applicant had not been employed for six months at the time of this incident. Therefore, he must prove that the psychiatric injury was the result of sudden and extraordinary employment conditions. Because the circumstances giving rise to the applicant’s claim of injury occurred “quickly and without warning”, he met the “sudden” requirement. With regard to the “extraordinary” requirement, the Board discussed several cases, including Walmart vs. WCAB, Matea vs. WCAB and State Compensation Insurance Fund vs. WCAB (Garcia), as well as the Blacks Law Dictionary definition of “extraordinary”. Based on these authorities, the Board agreed that the object falling from the crane “was not a regular and routine employment event”. Therefore, the psychiatric injury claim was not barred.

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