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My Favorite Case:
Boehm & Associates v. WCAB (Lopez) (1999) 76 Cal.App.4th 513, 64 CCC 1350

A “war story” from the trenches of workers’
compensation practice


By Robert A. Feinglass, Esq.

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The Case: In 1991, farm worker Florencio Lopez was digging a deep trench. He reached for a 50-pound bag of cement. Pulling backwards, he overbalanced and struck his back against a drainage pipe, and immediately felt pain. The employer’s insurer, State Compensation Insurance Fund, promptly accepted liability and provided medical care.

The injury appeared to be a minor back strain, but Mr. Lopez did not improve. On the contrary, he began to have serious symptoms in his lower extremities. His PTP suspected an underlying condition, and he was admitted as an inpatient to a local hospital, where testing revealed an unforeseen previously latent lesion in Mr. Lopez’s spine that was causing the outsized symptoms. State Fund paid for the first two diagnostic days of what proved to be a 12-day hospitalization, and denied responsibility for further care as unrelated to the industrial injury. Mr. Lopez and Medi-Cal were left to pay the remainder of the hospitalization.

Mr. Lopez did not heal. He was transferred to UC Davis Medical Center for multiple surgeries. He was left 100% disabled. His attorney nevertheless settled his case for the initial injury by Compromise and Release for $4,000. That ended the applicant’s attorney’s involvement in the case.
 
Lopez was left 100% disabled. His attorney nevertheless C&R’d his case for $4,000.
 
Negotiations: Left were lien claims from Medi-Cal and St. Joseph’s Hospital totaling about $93,000, all for the denied care for the effects of the spinal lesion. As attorney for Boehm, I represented both lien claimants. I tried to settle the case. By the end of that negotiation, my demand had fallen to $26,000, about 28% of the value of the liens. Defendant would not budge above $20,000, about 21% of the lien at that time. Normally, a difference that small compared to the size of the lien is easily resolved. I warned the adjuster that I would recruit other potential liens if I could not settle, but she was unimpressed and made no further offer.

I contacted the other providers and filed two more liens, for UC Davis Medical Center and its physicians’ billing group, increasing the aggregate lien claim (seven surgeries!) to just over $280,000. My theory was that the industrial injury had caused the flareup of the previously asymptomatic spinal lesion, so all the care was industrial. We retained Robert A. Blau, M.D., who agreed.
 
When State Fund wouldn’t pay 21% of the $93k lien, it mushroomed to $280k
 
The Trial: State Fund’s defense was handled by the retiring chief counsel of the State Fund district office, whom I personally had experienced as a bully, and with whom, as might be expected, I did not have a good relationship. This was his last case. I heard later that he had told someone, “Feinglass is going down.”
 
Defense counsel predicts defeat at trial
 
We lose: Judge Brophy went with State Fund’s view of the case and issued a “take nothing.”
 
Lien goes to zero on F&A
 
We Win: I reconned, the Board reversed the trial judge, accepted the lighting-up of the underlying condition as an industrial component, and ordered the liens paid.
 
Lien revived on recon
 
The Fun Begins: State Fund was late paying the $280,000. At that time, Labor Code §5814 still required an award of 10% of the value of the delayed benefit, medical expense. I petitioned as well for an award of statutory interest pursuant to Labor Code §4603.2(b), which required that interest be paid to medical providers for delays in payment after it was “due,” despite the language of 8 CCR §9792.5(f), stating that interest was to commence at the time liability was accepted by the employer.

I believed that the payment was due as soon as defendant received a proper bill, with a grace period of 60 days. To that point I had been unable to get any comp carrier to listen to me. They were not even throwing something in for the threat of an interest award, and why should they? They had the Board’s own interpretation and a reg on their side.

Tim Nelson, a popular and very productive judge, was assigned to this portion of the case. Mr. Lopez showed up for the conference without counsel. I was able to ghost him to approach Jim Fisher of State Fund, who handled this portion of the litigation, and ask him if there wasn’t a penalty issue. State Fund agreed to pay Lopez an additional $23,000 for the delay in paying the medical bills, increasing his recovery from $4,000 to $27,000. In some ways, this meant more to me than what I got for my own clients.
 
State Fund agreed to pay Lopez an additional $23,000 for the delay in paying the medical bills, increasing his recovery from $4,000 to $27,000.
 
Trial and Appeal: We tried the interest issue, and Judge Nelson issued the adverse decision required by the Board’s interpretation of 8 CCR §9792.5(f). The Board denied reconsideration. I went to the 3rd District Court of Appeal. This was my first affirmative petition for a writ of review. I compared the interest language to Civil Code §3287 and argued that the statute was enacted for the protection of providers who care for injured workers on a lien, thereby furthering the intent of the Workers’ Compensation Act to provide prompt care to employees injured at work. The case was accepted for hearing.
   
 
My Eloquence at Oral Argument: On the day of oral argument, I was accompanied by my close friend and colleague Nancy Roberts, who had worked with me on the case the entire time. We arrived early and watched the proceedings as several other cases came before ours. Everybody was given a hard time. When our turn finally came, as petitioner I was to go first, 15 minutes total to a side. I stood up and said, “Petitioners will reserve our time for rebuttal. Thank you.” And I sat down. Don Clark appeared for State Fund. He was a part of State Fund’s appellate firm, and I wondered whether this appearance was an everyday occurrence for him. As it turned out, it was simply not his day. He had barely gotten a sentence out when the justices started interrupting him to argue, or to put another question before he’d had a chance to answer the one before. He got caught lacking knowledge of a case that State Fund itself had cited in its respondent’s brief, and in the midst of a sentence, he was suddenly told, “Your time is up.” It was my turn. I got up and said, “Nothing further your honors.” My appellate debut was over.
 
Silence is golden.
 
We Won. Interest was awarded calculated from receipt of the bills. The Division of Workers' Compensation was held to have exceeded the mandate of the statute in the language of §9792.5(f), and consequently had to re-write its regulation. The California Supreme Court denied review in February 2000.
 
Boehm & Associates v. WCAB (Lopez) (1999) 76 Cal.App.4th 513, 64 CCC 1350
 
Interest on the Interest: State Fund helped out by again delaying payment of the now-statutory interest, and I got interest on the interest ($53,000 plus $12,000). Two more §5814 penalties (late on payment, late on interest payment), payable at 10% of the benefit, were settled out for another $50,000 for Mr. Lopez, so that I had been able to get him another $73,000 in all on top of the original $4000. Jim Fisher, who took over the case after the litigation, proved to be an exceptional gentleman in his dealings with the applicant. The case was reported in CWCR. Very satisfying.
 
Mr. Lopez got another $73,000 in all on top of the original $4000.
 
And Now… As many readers know, there is yet another Board interpretation of §4603.2(b) that is detrimental to providers and payers of medical care. In its zeal to attack outpatient surgery centers, the Board has held, in the en banc Kunz case, that contrary to the instructions set forth in §4603.2(b) regarding the timing of objections, the employer may raise untimely objections at any time. This determination is contrary to case law and vitiates an integral piece of the statute enacted to protect industrial medical providers, “without whom the entire benefit system would fail.” 60 CCC 559, 569.

The en banc Board, in another ambulatory surgery center case, in dicta, continued its unwarranted hostility toward medical providers generally by placing the burden of proof of reasonableness of charges on the medical provider in contradiction to consistent case law since 1974 (Tapia). The courts of appeal need to weigh in on this Board stance that makes access to timely medical care much more difficult. It appears that the Board has gone overboard consonant with the “popular” mood of protecting employers and insurers at the expense of employees injured at work and their providers who must wait for conclusion of the case-in-chief even to seek payment of bills for industrial medical care.

My office is looking for cases appropriate to press a challenge to these erroneous Board positions. If any reader is aware of such a case, please contact me at the email address and phone number below. My office gives referral fees of 30% of my fee for liens for which we obtain representation and recover money.
 
The Board steps backwards
 
Robert Allen Feinglass has been practicing law since 1986.

Law Office of Robert Feinglass
130 Frederick Street, #101
San Francisco, CA 94117
Tel: (415) 218-0672
Fax: (415) 861-5306
Email: bobfeinglass@comcast.net
Web: www.bobfeinglass.com

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