V5N2 Printable Version

Q1 2010 - V6N1 - Online Printable Version
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I Spy...for Free!
by Don Barthel, Esq.

Suspicious about an applicant's veracity, but can't quite figure out why?

Trying to decide whether to assign a case to a private investigator?

Questioning whether your hunch can justify the costs of hiring your favorite gumshoe?

Consider saving lots of money by performing your own 15-minute background check...for free! Internet searches are quickly becoming an easy, effective, and inexpensive (not to mention…FUN!) way of researching an applicant's background and verifying their credibility.

She's Doing What?
The wealth of information readily available on the internet first became clear to me last year while defending the orthopedic/psych case of "Jill,"¹ Jill had happily collected TD for over a year and seemed likely to continue on this course for a long while. Jill had provided a local cell phone number in her contact information, but almost immediately retracted the number—stating it was a "mistake"—and replaced it with what she described as her "real" number.

Huh? "Real" phone number? As opposed to what...a "fake" one? This seemed suspect, but what did it mean?

Shortly after the phone number interaction, a psychiatric report made mention of the fact that Jill had "long ago" worked as an "escort."² Interesting! This quickly led to speculation that the "mistake" phone number was really a "work" number. Rather than hire a private investigator to stake out Jill's apartment, we plugged the "mistake" number into various web sites advertising adult companionship. Within minutes we struck gold! At Craigslist.org's now infamous "adult services" page, Jill's cell phone number was listed as the number to call for various unchaste activities...all available for a price! Jill was indeed supplementing her temporary disability checks! Confirming Jill's connection to these ads required no expensive investigation: her postings also included revealing pictures of her face...among other things...that she regularly updated.

Armed with the fruits of a 15-minute amateur background check demonstrated (a) an undeclared income stream, (b) likely tax evasion (a source of non-industrial stress?), and (c) an ability to run and manage a thriving business while simultaneously misrepresenting to physicians and the claims adjuster that she was totally incapacitated. Not surprisingly, the workers' compensation matter was quickly and economically resolved!

Spies Like Us
Ready to do a little "snooping" on your own? Select a couple of your favorite search engines (I personally prefer Google.com and Bing.com), and plug in any relevant identifying information: names, addresses, phone numbers—these readily available tidbits are your keys to an applicant's past and current activities.

Consider scouting around in...

Phone Directories:
Got a phone number (like Jill's!) that your applicant uses? Interested in knowing whether that number is associated with a different name, an alternative address, and/or is linked to a business? Type it in and push "search"!
Facebook:
Facebook is a global social networking website on which users can add friends and send them messages. Millions of folks regularly post updates and detailed "personal profiles"—often with pictures—detailing their activities. Applicant is TTD and claims he/she can't even perform light duty? A Facebook posting describing a recent camping trip, cross-country drive, dance class, etc., may be just what you need to get that TD terminated and a problem file resolved (not to mention a fraud referral picked-up by the local District Attorney!)

I recently located a Facebook page that was operated by the deceased spouse of a beneficiary/claimant. A review of that page quickly demonstrated that the decedent was a bit of a "player" and far from truthful (information that was both highly relevant and helpful in resolving the case).

Facebook accounts have a default privacy setting that will allow people to access a poster's page, even if the poster and viewer/investigator are not linked as "friends." If, on the other hand, the applicant's webpage security setting requires that you obtain permission to obtain access, consider obtaining an Order Compelling applicant to allow access to his/her webpage, as well as any/all history of the page. Consider also requesting that the order mandate that applicant not update or alter the page in any way pending the investigation.
Local Newspapers:
California has hundreds of newspapers and most are local (very) papers.³ Many of these newspapers permit free access and a wonderful "archives" search engine. Interested in reading an article about your claimant's recent arrest or golf tournament win? The local paper's police blotter and sports page often provide fascinating—and free—reading for the gumshoe-on-a-budget like you!

There's No Place Like Home:
An applicant's home address is a valuable piece of information to search online. Is or was the home recently listed for sale? Recently sold? Being prepared for sale? Is a business name associated with that address?

Order In The Court:
Has your claimant been naughty? Find out by searching the local "Court Clerk" and "Court Index," a search that usually costs little to nothing.

Take a Drive Through the Neighborhood:
What does applicant's residence look like? Is there a lot of activity? Would it be a good place to assign an investigator to watch, or would your P.I.-for-hire stick out like a sore thumb? All of these questions can easily be answered—for free—using Google's "Street View." Google.com says, "We like to think of Street View as being the last zoom layer on the map— when you've zoomed all the way in you find yourself virtually standing on the street."⁴ Alternatively, run your applicant's name on www.zabasearch.com or www.pipl.com (self described as "the most comprehensive people search on the web") for similar maps and related information about your subject.

Admit it...you’re just dying to snoop around!

Happy hunting!

Don Barthel is a founding partner of Bradford & Barthel, LLP, as well as B&B's Rating & File Consultation Services. Mr. Barthel is an acknowledged expert regarding the AMA Guides to the Evaluation of Permanent Impairment and the 2005 PDRS. Much of his time is dedicated to teaching these topics to adjusters, human resource directors, employer representatives, attorneys, and physicians throughout California and the United States. Have a PDRS or AMA Guides question? Call Don Barthel at (916) 996-1263 or email him at dbarthel@bradfordbarthel.com.

¹ Name changed to protect the guilty!

² This did not mean that she was impersonating a more expensive version of the Ford Motor Company's compact vehicle.

³ For a statewide list that includes daily, non-daily, and even "alternative" newspapers, go to http://newslink.org/CAnews.html.

⁴ http://maps.google.com/help/maps/streetview/using-street-view.html, November 30, 2009

Spinal Surgery Authorization Process OR Pain In The Neck?
by Don Barthel, Esq.

Just received a primary treating physician's (PTP) request for authorization to provide spinal surgery? Think the proposed surgical treatment isn't reasonable and necessary?¹ Don't stop to smell the roses...you're running out of time (literally!).

The WCAB's most recent (11/19/09) en banc decision, Cervantes v. El Aquila Food Products Inc, requires that you jump through so many hoops to deny the authorization request that even the WCAB Commissioners admit it "may seem redundant"!² And all this redundacy must be completed within ten (10) days!

Your Choices Are GONE!
Per a prior WCAB Panel decision, Brasher ³, you had some choices when dealing with spinal surgery requests, such as:

Relying exclusively on UR's determination and letting applicant try to obtain a timely Labor Code 4062(b)⁴ report to fight UR determination, or
Obtaining both a UR determination and your own 4062(b) report, or
Completely opting out of UR and disputing the spinal surgery recommendation using only a 4062(b) report.

All your choices have disappeared!

The WCAB expressly disapproved Brasher, and, in so doing, determined you either must approve the spinal surgery or timely proceed via the second approach listed above. That is:

Defendant "must" undertake UR, completing that process "within 10 days of its receipt of the treating physician's report," and
If— and only if— UR denies the surgery, defendant "may" object using Labor Code 4062(b).

Got Questions?

Question: Given Cervantes' use of the word "may" regarding invocation of Labor Code 4062(b), does this mean a timely 4062(b) objection is not mandatory?

Answer:While logic would dictate an affirmative answer, the WCAB provides a rather silly response. The defense is not "required" to timely object pursuant to 4062(b), but if you don't you will "lose[] [your] right to a second opinion report and...must authorize the spinal surgery." In short, you are not required to invoke 4062(b), but if you don't...you lose!

Question: So even though 4062(b) and the WCAB say the employer "may" object to a PTP's spinal surgery recommendation and "may" obtain a 4062(b) second opinion, I must authorize the spinal surgery if I don't timely object via 4062(b)?

Answer: Exactly!

Question: To deny a PTP's spinal surgery recommendation, I must complete the UR process within 10 days of the receipt of the PTP's report and invoke 4062(b) within that same 10 days?

Answer: Exactly! (If you're getting a headache, you're probably starting to understand Cervantes!)

Question: What if UR authorizes the spinal surgery? Can I still obtain a second opinion via Labor Code 4062(b?
Answer: Nope! If UR approves the requested surgery (or you fail to timely complete the UR process), you have one—and only one—option: authorize the surgery. Per Cervantes, "if there is no UR 'deni[a]l' there is no 'dispute' to 'resolve[].'" [p. 8, quoting 4610(g)(3)(A)]. "[A] defendant's objection under section 4062(b) to a treating physician's spinal surgery request may be made only after that request has been denied by UR" (p. 10, italics added).

Question: I'm too busy to do all this. I can let my attorney handle it, right?

Answer: At this point, having your attorney—or anyone other than "a principle or employee of the employer, insurance carrier, or administrator"—handle this on your behalf appears to be fraught with peril given that AD Rule 9788.1(a), cited approvingly by the WCAB, requires that any objection under 4062(b) "shall" use the form found in Section 9788.11 and "must" be executed by "a principle or employee of the employer, insurance carrier, or administrator."⁵

Question: What if UR timely denies the surgery and the Applicant timely invokes the Labor Code 4062(b)? Can we rely on that objection?

Answer: The WCAB makes clear that this is not an option: "it is the defendant, and not the injured employee, that may initiate the spinal surgery second opinion procedure." Thus, B&B cannot recommend reliance on such an approach. If, however, this does occur on your case without an objection, query as to whether the parties have waived an objection to this procedural irregularity? (How many of us have been before a WCJ long after the timelines for obtaining an AME have long past, only to have the judge ask the parties, "Can't you all agree on an AME"?) Nevertheless, such a scenario is likely to be rare. Indeed, it is increasingly unlikely that the Administrative Director would issue the name of a physician for a second opinion in response to a 4062(b) objection coming from the Applicant.

Question: Didn't the California Supreme Court's Sandhagen⁶ decision recently tell us that the defense is to raise treatment disputes via UR and the injured employee—and only the injured employee—gets to use 4062 as a way to argue with a UR decision? Sounds like the WCAB's Cervantes conflicts with a California Supreme Court holding, doesn't it?

Answer: Not according to the WCAB. Cervantes distinguishes Sandhagen. Acknowledging that "Sandhagen repeatedly said that defendants cannot use section 4062 to dispute treatment requests...Sandhagen was not a spinal surgery case and it did not directly involve...4062(b)."

Question: If I need to complete UR and timely issue a 4062(b) objection within 10 days of receiving the PTP's report, can I initiate both processes simultaneously?

Answer: To quote the Talking Heads, "Stop Making Sense"! ⁷

The Cervantes decision makes clear that proceeding simultaneously—and thus reasonably attempting to ensure you do not miss any deadlines—is not an option. "[A] defendant's objection under...4062(b) to a treating physician's request may be made only after that request has been denied by UR." (Cervantes, p. 10, italics added)

Question: This is exhausting! Let's say I've actually been able to beat the odds by:

Sending the PTP's report to UR
Obtaining a UR denial of the surgical request
Triggering 4062(b) by following all the requirements in AD Rules 9788.1, 9788.11 and 9792.6(o)
Completing all of this within 10 days of receiving the PTP's surgical recommendation
Receiving a 4062(b) second opinion that concurs with UR...

...do I get to go to Maui to celebrate?

Answer: Not so fast. Per Cervantes, "at every step...4062(b) places the onus on the defendant." (p. 11) 4062(b) next requires that "[i]f the second opinion does not recommend surgery, the employer shall file a declaration of readiness to proceed." So, once you've filed your DOR, pack your bags for Hawaii, but be sure to be back in time for the hearing.

Question: What hearing? If no Application for Adjudication has yet been filed, will the WCAB take action on my DOR? After all, they don't have jurisdiction without an Application. Oh wait a minute...you're going to tell me I've got to file the Application too, aren't you?

Answer: Nope. After filing the DOR, your work is done. We can discern no labor code, regulation, or case law suggesting you must also file the application.

Good news?
How often have you searched a medical report for treatment recommendations, only to:

Find them buried on page 27 of the report, or
Overlook them, or
Not be able to determine whether the doctor was actually making a recommendation?

The PTP reports in Cervantes were typical of the problematic reports reviewed by adjusters and defense attorneys on a daily basis. The PTP provided such unclear observations as applicant "may be a surgical candidate" and "I do feel somewhat confidant that the patient would benefit from surgery..." Is that a real request for authorization to provide spinal surgery?

No longer must you hunt for treatment recommendations or guess as to whether spinal surgery is being recommended. The WCAB made clear that the 10-day timelines are "triggered only by a physician's report that complies with AD Rule 9792(6)(o)['s]" mandate that the written request be provided:

In a "Doctor's First Report of Occupational Injury of Illness" (Form DLSR 5021), or
The "Primary Treating Physician Progress Report" (DWC Form PR-2), or
In a narrative format that is "clearly marked at the top that it is a request for authorization." ⁸

No longer may the doctor play "got ya"! (Though the WCAB's requirements certainly seem to contain a "got ya" flavor.)

Finding Any of this Appealing?
More good news. An appeal is in the works. Bradford & Barthel's "Writ & Recon Department," led by Louis Larres⁹, filed a writ with the 6th District Court of Appeal in Cervantes in early January 2010. Would you like to review a copy? Access it here.

Donald R. Barthel is a founding partner of Bradford & Barthel, LLP, as well as B&B's Rating & File Consultation Services. Mr. Barthel is an acknowledged expert regarding the AMA Guides to the Evaluation of Permanent Impairment and the 2005 PDRS. Much of his time is dedicated to teaching these topics to adjusters, human resource directors, employer representatives, attorneys, and physicians throughout California and the United States. Have a PDRS or AMA Guides question? Call Don Barthel at (916) 996-1263 or email him at dbarthel@bradfordbarthel.com.

¹ Labor Code 4660 requires that employers provide "medical treatment that is reasonably required to cure or relieve the injured worker from the effects of his or her injury." This article relates only to disputes regarding the reasonableness and necessity of spinal surgery recommendations. It does not relate to spinal surgery disputes based on AOE/COE considerations.

² Trust the Commissioners' characterization...their procedures are very redundant!

³ Brasher v. Nationwide Studio Fund (2006) 71 Cal. Comp. Cases 1282, a significant panel decision.

⁴ Labor Code 4062(b) provides: The employer may object to a report of the treating physician recommending that spinal surgery be performed within 10 days of the receipt of the report. If the employee is represented by an attorney, the parties shall seek agreement with the other party on a California licensed board-certified or board-eligible orthopedic surgeon or neurosurgeon to prepare a second opinion report resolving the disputed surgical recommendation. If no agreement is reached within 10 days, or if the employee is not represented by an attorney, an orthopedic surgeon or neurosurgeon shall be randomly selected by the administrative director to prepare a second opinion report resolving the disputed surgical recommendation. Examinations shall be scheduled on an expedited basis. The second opinion report shall be served on the parties within 45 days of receipt of the treating physician's report. If the second opinion report recommends surgery, the employer shall authorize the surgery. If the second opinion report does not recommend surgery, the employer shall file a declaration of readiness to proceed. The employer shall not be liable for medical treatment costs for the disputed surgical procedure, whether through a lien filed with the appeals board or as a self-procured medical expense, or for periods of temporary disability resulting from the surgery, if the disputed surgical procedure is performed prior to the completion of the second opinion process required by this subdivision.

⁵ Rule 9788.1(a) provides:
An objection to the treating physician's recommendations for spinal surgery shall be written on the form prescribed by the Administrative Director in Section 9788.11. The employer shall include with the objection a copy of the treating physician's report containing the recommendation to which the employer objects. The objection shall include the employer's reasons, specific to the employee, for the objection to the recommended procedure. The form must be executed by a principle or employee of the employer, insurance carrier, or administrator.

⁶ State Comp. Ins. Fund v. WCAB (Sandhagen) (2008) 44 Cal.4th 230 [73 Cal.Comp.Cases 981)

⁷ "Stop Making Sense (1984) is a concert movie featuring Talking Heads live on stage. Directed by Jonathan Demme, it was shot over the course of three nights at Hollywood's Pantages Theater in December of 1983, as the group was touring to promote their new album Speaking in Tongues. The movie is notable for being the first made entirely utilizing digital audio techniques. The title comes from the lyrics of the song "Girlfriend is Better": 'As we get older and stop making sense...'." http://en.wikipedia.org/wiki/Stop_Making_Sense 12/10/09.

⁸ AD Rule 9792.6(o) provides:
"'Request for authorization' means a written confirmation of an oral request for a specific course of proposed medical treatment pursuant to Labor Code 4610(h) or a written request for a specific course of proposed medical treatment. An oral request for authorization must be followed by a written confirmation of the request within seventy-two (72) hours. Both the written confirmation of an oral request and the written request must be set forth on the 'Doctor's First Report of Occupational Injury or Illness,' Form DLSR 5021, section 14006, or on the Primary Treating Physician Progress Report, DWC Form PR-2, as contained in section 9785.2, or in narrative form containing the same information required in the PR-2 form. If a narrative format is used, the document shall be clearly marked at the top that it is a request for authorization."

⁹ You may recall that Mr. Larres is currently leading the defense of Almaraz/Guzman I & II, having filed briefs with the WCAB and who writes with the 6th District Court of Appeal on behalf of the defense in Guzman.

B&B Announces Newest Partners
by Mark Fletcher, Esq.

B&B recently announced its newest partners: Farai Kadzirange (Ontario), Sean Shabestari (Ontario), Patricia Carlos (Tarzana), Garrett Kuehn (San Diego), Tom Murphy (Tarzana), Peter Fitzpatrick (Ontario) and Monica Coats (Fresno).

Citing the new partners' "outstanding service" and "aggressive, client-oriented approach," B&B noted that its newest partners bring nearly 1½ centuries of legal experience to bear. It is the quality of work, attention to detail, and dedication to our clients this group consistently demonstrates that has permitted B&B to distinguish itself as one of California's truly premier workers' compensation defense firms.

Congratulations, Class of 2009!

Mark Fletcher is the Managing Attorney of Bradford & Barthel, LLP.

Technology Forecast: Clouds Ahead
by Eric Hunter

TOP SECRET - Do NOT Read!

Hey, we told you not to read this! Are you gone?

Ok, now that everyone has left, we can discuss this top-secret information...

B&B's Knowledge Management Department is leading the industry developing cutting-edge technological advances to benefit our clients and B&B's own staff, attorneys, and managers in ways that heretofore were unimaginable.

Do you start to fall asleep even at the mere mention of "technology"? Are you "too old" for all that "technobabble"?

Think again.

Not only will the advances planned at B&B for 2010 be beneficial to you; they can be easily understood by even the most novice of technology users.¹ Thus, beginning with this issue of B&B's BLOG, Mr. Eric Hunter will bring us all up to speed on the latest and greatest technology advances, and, most importantly, show us how this will make our work easier, more efficient, and less expensive!

-- Don Barthel.

Eric, take it away...

Welcome to the maiden voyage of B&B's "TOP SECRET—Do NOT Read!" This is the first of many articles slated to appear in B&B's BLOG dealing with the future (read: "now") of communication. Are computers involved? Yes. The internet? Yes. Lots of technology. Yes....BUT don't let that turn you off. The advances planned for B&B for the near- and short-term do deal with "technology", BUT not that icky, scary, mind-numbing stuff of the past. It's 2010, folks. If, at this late date, the technological "advances" and "improvements" are not simple and easy to use, then they ain't improvements at all.

The Future of Communication (and Why You Should Care)
As part of B&B's ongoing efforts to improve quality, increase efficiency, and decrease client costs, the firm's Knowledge Management Department is exploring and implementing communications systems that, just a few months ago, would have sounded more like science fiction.

Twenty years ago, typewriters dominated the legal world of communication. Typos, BIC Wite-Out©, and rewrites were the bane of every secretary. Need that document right away? Your options were largely limited to "snail mail" (a phrase that had yet be invented), overnight delivery and—increasingly—faxes with unmanageable, self-destructing paper.

As the years wore on, email with and without attachments, scanning, cell phones, and computers with their own printers began to litter the landscape. At this point, that's probably very much what your office looks like, right?

Can it get any better?

Much! And B&B is leading the way!

But where....

"To infinity ... and beyond!"² just might be the rallying cry for B&B's Knowledge Management (KM) Department³ as B&B sets the industry standard in information sharing.

What's so "cutting edge" about B&B's KM Department?

Look up....way up!

B&B Has Its "Head In the Clouds"
No longer are the information repositories of B&B's various departments (legal, ratings service, administrative, financial, etc.) separate and distinct. Rather, the KM Department is now able to bring these warehouses of information (both figurative and literal) together and make them readily accessible such that, with proper authorization/clearance, designated personnel can readily access any/all needed electronically stored data at the touch of button. In short, email, documents, dictation—virtually any form of communication—will all become synonymous and, more importantly, interchangeable from the perspective of accessibility. Thus, we can and will dramatically increase efficiency and decrease the time and cost otherwise associated with data retrieval.

Imagine! An adjuster needing information about a file calls the managing attorney. No longer does that manager need to retrieve and review the physical file for the latest correspondence, request billing information from the Financial Department, and/or go elsewhere to research the adjuster's concerns. Rather, the managing attorney simply turns to his/her laptop at the office (or anywhere on the road with internet connection), pushes a few buttons, and immediately accesses the file, the most recent correspondence, the current and past billings, etc. In a matter of minutes, virtually any question relating to the file's handling can be researched and answered!

How are these research miracles possible?

Have you heard of "cloud computing"? It involves converting and hosting all of your company's applications (Outlook, Word, WordPerfect, PowerPoint, etc.) and all of your data (including anything you input, from letters, files, medical reports, email correspondance, and scanned documents to pictures, video, internet, intranet, blogging, social networking, and dictation) offsite in the...well...in the "clouds." In short, everything you can see, input, or extract from your computer is somewhere far, far away from you and your computer screen.

Why is this a good thing?

How many expensive servers does your employer have? Better yet, how often do those servers "crash," leaving you searching to find lost data (including that letter that must go out "yesterday") and twiddling your thumbs as you consider whether your oncoming nervous breadown will be considered AOE/COE? How often have your "tech guys" or "tech gals" had to drop everything and rush across the office, across town, or across the state in hopes of saving the day....tomorrow or next week? These on-site servers, crashes, and psychiatric claims will soon become a thing of the past at B&B.

How?

We're dumping our servers (want to buy some...cheap?)!

All data and applications are moving to the "clouds" on supersized, super efficient, super reliable servers located across the state, the nation, and the world. Why is this a good thing? Don't we want to be able to control our own data and protect it from evil?

Great questions...and "cloud computing" has fantastic answers:

"Super Size It": How much of my data can and should be stored "in the clouds"?
All of it! By employing the servers owned by international, Fortune 100 companies, small and mid-sized companies such as B&B can access the technological advances of cutting edge equipment that would otherwise be far beyond our pocketbook's capacity. The potential cost-savings are—in a word—SUPER!
Safety From Disaster:
By using cloud technology offsite, doesn't B&B expose its privileged data (including your attorney-client communications) to prying eyes? Absolutely not. By taking advantage of a multitude of servers at various locations, we achieve an economical back-up program (the data is duplicated in multiple locations so if/when the servers in California slide into the ocean, there will be servers on the other side of the country...or the world...standing ready and fully accessible with copies of all the "lost" data), as well as added security. Today your high priority letter itemizing the strengths and weaknesses of your multimillion dollar lawsuit is sitting on some server just waiting to be crash. Tomorrow B&B's cloud computing will "divide and conquer" disaster recovery by splitting your letter-and all other data-into many, many parts and storing it in pieces on various servers around the world.
Where do I have to go to access my files and other data that B&B stores "in the clouds"?
Nowhere! You, the client (with proper security authorization), your attorney, your attorney's supervisor, secretary, etc., can all access your data from...EVERYWHERE! If you want to read a letter on your computer right now, you probably need either a hard copy or your computer (with its hard drive) in front of you, right? Not with cloud computing! Because your data is stored "in the clouds," you can access your data from anywhere in the world where you have internet access and any type mobile device (computer, laptop, netbook, cell phone...anything that allows connection with internet). Starbucks here we come!
Computer? Laptop? Netbook? Cell phone? What if I—or my attorney—lose the accessing device? Have we lost the file?
Absolutely not! The file (and any other related data) is stored elsewhere "in the clouds." The accessing device (computer, laptop, etc.) is nothing more than that: an accessing device. As such, it can be lost, destroyed, replaced or stolen without losing a single kilobyte of your information.
Did you say "stolen"? Does this mean that when we lose a cell phone (or computer, etc), we've just given the keys to all our privileged information to a thief?
Heck no! First, there is no information on the accessing device (it's all "in the clouds"). Moreover, prying eyes cannot access your cloud-based data, even if they have "borrowed" your access device. Why? Security authentication— no different from the safety controls your bank uses to safeguard your cash—guarantees your data is safe from the prying eyes of criminals! These security codes and passwords can be regularly updated and changed at a moment's notice when necessary to accommodate potential security challenges, such as personnel changes, new and novel security issues, and the like.
My file contains HUGE documents, endless subpoenaed records, and reams of other documents. How long is it going to take to download all this from the clouds each time I need it?
Don't blink! No longer than it currently takes to access documents from your traditional computer....and in many cases a lot faster than that! Same goes for uploading information and data to the clouds.
How do I organize and search through all this data?
Organizing it? NOT a problem! Have you ever performed a Google© search? How long did it take? Not very! If you can find the information you're looking for when you use Google, Yahoo, Bing, or your favorite search engine (who can't?), you'll be able to access all the information you, your co-workers and attorneys store for you in the clouds.

Eric Hunter is Director of Knowledge Management at Bradford & Barthel, LLP.

Do you have questions? Concerns? Comments? Please email any thoughts you have relating to communication advances to ehunter@bradfordbarthel.com. We'll be happy to address your questions and develop future BLOG articles on topics of interest to you.

¹ Some have defined "technology" as "anything that was invented after you were born." www.urban.dictionary.com, 1/6/10

² When you steal, steal from the best. You may recognize this phrase as the oft repeated catchphrase of Buzz Lightyear, the self-important Star Commander in Disney's hit film, "Toy Story."

³ It ain't "IT" or "Tech" anymore. Those computer geeks who spoke in "computerese" that few of us real folks could understand are a dying breed, replaced by Knowledge Management Professionals who—with their advanced technology know-how—coordinate and direct strategic growth at cutting edge businesses like B&B in the areas of competitive intelligence, social technology, and really cool gizmos. It's all about the knowledge.

The DEU Violates the Labor Code and Costs You Money
(Here's How to Prove It)
FUN WITH APPORTIONMENT
by Phil Billman, B&B Rating Services Manager

The Problem

This is not another long-winded treatise on how to get an apportionment determination approved by a WCJ. This article assumes that the apportionment is already approved or otherwise stipulated. Rather, this essay is aimed at ensuring that the DEU's misapplication of the 2005 Permanent Disability Rating Schedule (PDRS) and relevant apportionment labor codes¹ does not cost you money!

The 2005 PDRS and AMA Guides (5th) introduce numerous ways to add and combine numbers. Inasmuch as the PDRS and Guides are, for legal purposes, mere regulations, whereas the applicable Labor Code sections are statutory, Labor Code 4663 and 4664 trump any conflict that may arise as between the Labor Code and Regulations. The DEU, too, has gotten into the mix, dictating an apportionment methodology that frustrates Labor Code intent and increases your PD exposure.

What is the DEU doing wrong?

Imagine this: You have a medical report that awards PD to various body parts. The resulting PD, once combined, results in something less than 100%. The doctor also provides legal apportionment of 50% for each and every body part? How much PD will you owe? You might conclude that, given that (a) the overall PD is less than 100%, and (b) the employer is liable for no more than 50% of the PD attributable to any injured body part, the PD owed must be something less than 50% (after all, 50% x 100% PD = 50% PD). While your logic is airtight, the DEU would very likely say "wrong," instead reporting to the WCJ that you owe well over 50% PD.

Huh? How could this be?

The DEU applies apportionment to the PD for each involved body part, and then proceeds to combine the apportioned PD. For example, if the doctor, using Labor Code 4663, apportions away 50% of the PD for a neck, arm, and leg injury, the DEU's rating with apportionment looks like this:

50%(15.01.01.00 - 38 - [5]48 - 250F - 48 - 48) 24% PD
50%(16.01.02.04 - 50 - [5]64 - 250E - 61 - 61) 31% PD
50%(17.01.07.00 - 30 - [5]38 - 250F - 38 - 38) 19% PD

Thereafter, the DEU will combine these three apportioned numbers (31%, 24% and 19% PD) in descending order.

You might ask, "So what?" What's wrong with that?

Answer: Nothing is "wrong" with this, if you are willing to allow the DEU to disregard the labor code and cost your client more money.

The Solution

LC §4663(c) states in part:

A physician shall make an apportionment determination by finding what approximate percentage of the permanent disability was caused by the direct result of injury arising out of and occurring in the course of employment and what approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury, including prior industrial injuries.

LC §4664(a) states:

The employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment.

As noted above, the Labor Code talks about permanent disability being apportioned, not the pieces that make up the permanent disability.

So do the DEU's apportionment calculations violate the labor code and cost you more money? Here is an example taken from a real-life report. The doctor apportioned away 70% of the PD for each body part, thus leaving apportioning 30% of the PD to the affects of the industrial injury.

Body Part	PD Before Apportionment	PD After apportionment
A	25%	25% x 30% = 8%
B	6%	6% x 30% = 2%
C	12%	12% x 30% = 4%
D	7%	7% x 30% = 2%
E	7%	7% x 30% = 2%

Combined before apportionment – 25 c 12 = 34; 34 c 7 = 39; 39 c 7 = 43; 43 c 6 = 46% PD

Combined after apportionment – 8 c 4 = 12; 12 c 2 = 14; 14 c 2 = 16; 16 c 2 = 18% PD

Looks good, right?

WRONG!

The total PD suffered before apportionment is 46% PD. What is 30% of 46? 46% x 30% = 14% PD! So why is the DEU calculating that you must pay 18% PD? The law says you don't have to.

Nice and easy if the doctor applies apportionment uniformly. What if the apportionment is different for each body part? According to the DEU, apportionment would be calculated as follows:

Body Part	PD Before Apportionment	Industrial	PD After apportionment
A	91%	50	91% x 50% =46%
B	34%	33	34% x 33% = 11%
C	19%	50	19% x 50% = 10%
D	19%	33	19% x 33% = 6%
E	18%	33	18% x 33% = 6%

Combined before apportionment – 91 c 34 = 94; 94 c 19 = 95; 95 c 19 = 96; 96 c 18 = 97% PD

Combined after apportionment (DEU method) – 46 c 11 = 52; 52 c 10 = 57; 57 c 6 = 60; 60 c 6 = 62% PD

Wait a minute!

No single body part is more than 50% industrial and you are paying 64% of the total unapportioned PD! The total unapportioned PD is 97%! If no single body part suffered PD that was more than 50% industrial, how can you possibly be required to pay 62%, representing more than 50% of the total PD? Shouldn't you be required to pay something less than 49%, that is something less than half of the total PD (Total PD = 97% x 50% = 49% PD)?

There is a B&B Alternative

Apply apportionment to the increase in PD caused by that body part. It takes a little longer, but it can and will save thousands, tens of thousands, and even hundreds of thousands of dollars on your cases!

Body Part	PD Before Apportionment	Industrial %	Combined	PD Increase	PD IncreaseAfter apportionment
A	91%	50	-	91%	46%
B	34%	33	91 c 34 = 94	3%	1%
C	19%	50	94 c 19 = 95	1%	1%
D	19%	33	95 c 19 = 96	1%	0%
E	18%	33	96 c 18 = 97	1%	01%

In this second approach the PD has been combined before apportionment; therefore the PD increases are added to arrive at a total PD after apportionment of 48% PD. For a 2009 DOI, with a maximum earner, the employer is paying an additional 14% PD or $25,357.50 using the DEU method!

Great, but how often do you have this number of body parts and this level of impairment? Let's look at one example of two body parts at lower levels of apportionment.

The DEU Way

Body Part	PD Before Apportionment	Industrial %	PD After Apportionment
A	16%	70%	16% x 70% = 11%
B	10%	80%	10% x 80% = 8%

Combined before apportionment – 16 c 10 = 24% PD

Combined after apportionment – 11 c 8 = 18% PD

B&B's Alternative Method

Body Part	PD Before Apportionment	Industrial %	Combined	PD Increase	PD After Apportionment
A	16%	70%	-	16%	11%
B	10%	80%	16 c 10 = 24	8%	6%

Add the apportioned increase to arrive at 17% PD. In this case, the employer is paying an additional 1% PD or $1,150 using the DEU method (2009 DOI, max earner)!

Can you really afford to let the DEU misapply the law and overstate your PD exposure?

NEXT ISSUE – How a Water Glass Answers All Your Questions!

Phil Billman is Manager of the Bradford & Barthel, LLP Ratings Department.

Do you have an AMA Guides, PDRS, or apportionment rating question? Big or small, simple or complicated, Phil Billman has the answer. Call him at (916) 569-0790 or email him at pbillman@bradfordbarthel.com. A highly respected workers' compensation expert, Phil is frequently invited to lecture on the AMA Guides and PDRS issues.

¹See Labor Code Sections 4663 and 4664.