A series of articles emphasizing practical
knowledge you can't find in practice guides
and interviews with experts who share
their techniques for effective and efficient
case management

 

How To Do It: Articles, Interviews &
Practice Tips

Articles emphasizing practical knowledge you can't find in practice guides

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Profiles of people who changed workers’ compensation law.

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Letters to the Editors

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• Warren Schneider
• Marjory Harris


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HARRIS: Roger, you have developed some unusual
techniques for getting the best treatment for your
clients in our current low-cost environment. Could
you tell us what inspired you?


STUCKY: The Constitution of the State of California,
Article 14, Section 4 which is the constitutional
mandate for the provision of a complete system of
workers’ compensation. The plain meaning of the
constitutional provision is that the benefits be
adequate and that they be provided expeditiously
and without encumbrance of any kind. I take that
constitutional mandate seriously even though the
insurance industry and the defense side do not
seem to. I am particularly inspired by the greed and
incessant whining of the insurance industry. The
whole system, including the judges at the WCAB,
seems to have lost sight of the fact that the workers’
compensation system is supposed to be about
compensating injured workers and not about
insurance companies making money. SB 899 is
said by its opponent to address an "emergency" to
the compensation system but I don't see the
emergency. I see how the insurance companies
have mismanaged their own businesses -- and I'm
going all the way back to 1993 -- and have blamed
injured workers and their lawyers for their own
problems.

The post-SB 899 workers’ compensation system
does not provide adequate benefits, is not
expeditious, and has encumbrances of every kind.
These include MPNs, UR, PQMEs, and on and on.
To practice WC law with its woefully inadequate
benefits in the current environment, you must be
inspired by a sense of justice for the injured workers.
The insurance industry and their supporters have all
the cards, political power and money. It is the
dedicated civil trial lawyers and workers’
compensation practitioners who are the last line
of hope for consumers and injured workers.

 
Cal Const, Art XIV §4 (2005)
A complete system of workers' compensation includes adequate provisions for the comfort, health and safety and general welfare of any and all workers …to the extent of relieving from the consequences of any injury or death incurred or sustained by workers in the course of their employment, irrespective of the fault of any party;… full provision for such medical, surgical, hospital and other remedial treatment as is requisite to cure and relieve from the effects of such injury; …. to the end that the administration of such legislation shall accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance of any character….

For the full text, click here.

HARRIS: I understand you get to pick your nurse
case manager. Tell us how you do this.


STUCKY: Nurse case management can be critical to
the practice of a workers’ compensation case. Find
a good Nurse Case Manager (NCM), preferably one
who is in private practice but who is experienced
and whose training was with an insurance company.
Among the several that this firm uses is one whose
first 12 years was as a NCM for a large workers’ compensation insurer. This gives her credibility.
A NCM can review the medical reports, visit the
treating doctor, recommend treating doctors from
MPNs, and generally monitor what the primary
treating doctors are doing. This needs to be done in
the case of MPN doctors as well. This is a particular
advantage where you may not know the MPN
doctors. Often the workers’ compensation carrier
will assign their own NCMs to the case without
consulting with applicant's counsel. I get telephone
calls from NCMs asking if they can contact my client.
No, you cannot contact my client. I then write a letter
to the claims adjuster to the effect that you have
admitted that a NCM in this matter is appropriate in
that you assigned one. While I know that the
assignment of the NCM is principally to contain
costs and not to benefit my client, I use this as a
mechanism to choose my own NCM at the expense
of the carrier. I cite a 2004 Appeals Board decision,
Castorena v. Liberty Mutual Insurance Co., 32
CWCR 74 for the principle that nurse case
management is a medical benefit and as such, at
least under the pre-SB 899 law, the applicant is
entitled to choose his own medical provider. Most
MPN lists do not include nurse case managers and
therefore I select my own. There is an immediate
reaction from the defense. In some cases they
accept my NCM, in other cases they cancel the
nurse case management.

NCMs are also helpful with claims for healthcare
services provided by the injured worker’s family
members, particularly a spouse. These family
home health providers are entitled to be
compensated. NCMs are especially qualified to
state the level of home healthcare provided by the
spouse and an appropriate rate of compensation
for a given geographical area. A good NCM will
make a home visit, interview the spouse and then
make recommendations to the treating physician
regarding this care.


 


For sample letter to defendant, click here.



For more on the role of NCMs, see the Bowers Interview.


HARRIS: How do you deal with the treating
physician?


STUCKY: For the most part treating physicians
recognize their professional and ethical obligations
to treat an injured worker and to make the injured
worker well. For this reason, it is the treating
physician who is most conscientious about the
worker's medical condition and most acutely
sensitive to the injured worker's healing process.

You should scrutinize MPN networks for those
doctors with whom you have some experience and
whom you know take their professional and ethical
obligations as treating doctors seriously. We all
know doctors who remain in the workers’ compensation system and who are excellent
treating doctors. Choose those doctors. Forget
about the distance limitations and unreasonable
delays in getting appointments. The system is after
all about the medical health of the injured worker.
The primary focus of our practice is the medical
treatment provided to the worker. It is not about
insurance company money. It is not about attorneys’
fees. It is not about the employer's loss of a worker.
It is about the health of an individual human being.
We try to keep that in mind and do what is best for
that person as nearly as we can. Treating doctors
are a part of our team.

I often go with my clients to their appointments with
their treating physicians. I get to know the treating
physician. I learn something about the treating
physician. I am prepared to discuss with the
physician exactly what the treater intends to do with
my client. I explain the state of the law to the treating
physician. I explain the issues in the workers’
compensation case. I explain the terminology, the
language we use for workers’ compensation so
that their report will be intelligible to defense counsel
and to judges. Most treaters are quite receptive to
this participation by the applicant's lawyer. It
simplifies their task, it focuses their attention
on how to resolve the issues in a workers’ compensation case, cuts down on the amount
of denials of treatment and actually streamlines
the case for them. I also advocate strongly for my
client and remind the doctor that they don't have
to listen to defendant's NCMs or to claims
examiners or defense counsel who may badger
them about medical issues from the point of view
of the money of the insurance company.


 

The primary focus of our practice is the medical treatment provided to the worker. It is not about attorneys’ fees. It is about the health of an individual human being.

HARRIS: What is the response of the PTP?
Do they welcome your involvement?


STUCKY: Yes. By and large they appreciate it and
by and large they relate to me that it makes their job
easier. I also back up these doctors when their bills
are not paid, with appearances to enforce their liens
for medical treatment and getting their prescriptions
filled. I file lots of petitions for penalties for failure
and refusal to provide medical care. I always ask
that the penalties be imposed against the claims
examiner personally. I typically demand in a letter
to the claims examiner voluntary production to me
of each and every and all writings which in any way
evidence the examiner's compliance with the
provisions of §10109 of Title 8 of the California Code
of Regulations. That regulation requires the claims
examiner to deal with the applicant in good faith.
I don't see that the claims examiners often comply
with §10109. If they fail to produce the evidence
voluntarily then I subpoena the claims file. If they
refuse to provide proof of compliance with the
regulation, then I file a petition for penalties. I also
send copies of all petitions for penalties for failure
and refusal to provide medical care to the treaters
and to all evaluators. This is true for utilization review
denials as well. I ask the treaters and evaluators to
comment on the effect on the applicant's health of
the denial of medical care. Often defense counsel
send me very distressful letters on this process. It
unnerves them. I also object to any comprehensive
medical evaluation [CME] that is set far off in the
future on the basis that it is not constitutionally
expeditious. The defense will often collapse and
agree to change the evaluator to one that can do an
evaluation at a much earlier point and time. This will
often avoid an evaluation by a biased evaluator.
Also, some evaluators will not do an evaluation in
the presence of a court reporter. If they will not allow
the court reporter to be present, I tell my client to
walk away. This tells me something about that
evaluator. I have never had a cancellation fee
imposed against my client where they have walked
out on an evaluator who has refused to conduct the
evaluation in the presence of a court reporter. Also,
do not agree to provide a copy of the transcript of the
evaluation to the defense until the defense agrees
to pay the cost of the court reporter. They should pay
the cost of your transcript and the one you send to
them. They usually do this when I refuse to provide
them with any transcript at all on the basis that it is my court reporter, it is my transcript, I paid for it and
they can't have it. Be aware though that some judges
will order you to produce those if the defendant
makes a motion to compel you to produce the
transcript.


 
8 CCR §10109. Duty to Conduct Investigation; Duty of Good Faith.

(a) To comply with the time requirements of the Labor Code and the Administrative Director's regulations, a claims administrator must conduct a reasonable and timely investigation upon receiving notice or knowledge of an injury or claim for a workers' compensation benefit.

(b) A reasonable investigation must attempt to obtain the information needed to determine and timely provide each benefit, if any, which may be due the employee.

For the full text, click here.

HARRIS: How do you deal with AME and QME
appointments?


STUCKY: Well, first I send a court reporter to all
defense CMEs and all final CMEs and all AMEs.
There are exceptions for certain evaluators we
know well, whose reports we have often seen
and who demonstrate professional competence
and integrity. Many evaluators are not intimidated
or upset by claims examiners or insurance
companies and when we learn who those are,
and usually at their request, we will not send a
court reporter to those evaluations.

I will often send petitions for penalties, UR denials,
and case law to an evaluator setting forth exactly
what the medical problem is and what treatment
has not been provided. Sometimes this makes a
difference. It always creates pressure on the
defense side of the case.

 
The Board has held that the employee may have a court reporter present at a defense medical examination. See City of Garden Grove v. WCAB (Griffith), 53 CCC 192 (W/D-1988)

HARRIS: Have you had any bad experiences when
you show up at the defense QME with your court
reporter?


STUCKY: I did have one experience with a
reasonably well known evaluator in San Francisco
involving cauda equina syndrome. I was present at
this evaluation, and the evaluator highly resented it.
I have not used this evaluator since in that I believe
that he was not acting in good faith in this case.
He first of all refused to speak loud enough for the
court reporter to hear and to record the evaluation.
The doctor’s response was that he didn't have to.
He made a deliberate attempt to speak so quietly
that I could not hear him and the court reporter could not hear him. The doctor went into a rant in which
he made statements to the affect that his medical
office was just like his home and he could do as
he pleased. Thereafter (this was under the old law),
whenever the defendants set a defense QME with
this evaluator I would simply send them a copy of
the transcript. End of story. End of that evaluator in
my cases. This is very effective.

 
 

HARRIS: Has SB 899 changed your strategies?

STUCKY: Mostly, SB 899 has resulted in resolving
the inventory of cases clearly under the pre-SB 899
rating schedule. Now that there is appellate court
litigation on the exceptions set forth in new Labor
Code §4660, there are fewer and fewer of these
cases in that more and more are now to be resolved
under the new rating schedule. I have tremendous
respect for Judge Jacqueline Duncan at the San
Francisco WCAB who had the courage to fairly
consider the law and the apparent refusal of
Sacramento to follow the law (Boughner v. Comp
USA). These days I am avoiding resolving cases
under the new permanent disability schedule while
waiting for appellate review of that case. If Boughner
is upheld in the appellate court there are going to
be a lot of re-evaluations of permanent disability.
It has been suggested that perhaps a change in
the law of this kind would be grounds to re-open
stipulations to levels of permanent disability under
the post- SB 899 schedules. I am not convinced that
will happen in all cases. I am not convinced that
maneuver will be effective, although I wouldn't
criticize any practitioner for being creative and for
trying whatever might be effective in the resolution
of a workers’ compensation case. California
employers make huge profits on the back of
workers. It is just ridiculous and sad that a Chamber
of Commerce, Republicans, private employers, and
insurance companies choose to pursue disrespect
for workers and expose themselves as being so
greedy and so whiny. Governor Schwarzenegger
made the statement that businesses would leave
California if they didn't get WC relief. I say to them,
“Hasta la vista, baby!” California is not the third world
state the employers, their insurers, and lobbyists
have managed to make it. Workers’ compensation
may be ridiculous in California. What is more
ridiculous are the people who made it so.


 


Roger W. Stucky is a partner in the Redwood City firm of Carcione, Cattermole, Dolinski, Okimoto, Stucky, Ukshini, Markowitz & Carcione, LLP.

Roger W. Stucky , Esq.
Carcione, Cattermole, Dolinski, Okimoto, Stucky, Ukshini, Markowitz & Carcione, LLP
601 Brewster Avenue, 2nd floor
Redwood City, CA 94063
(866) 488-9358

www.carcionelawfirm.com



 
For a detailed CV,
click here.

How to Get the Applicant the Best
Medical Treatment and Evidence:
Interview with Roger W. Stucky, Esq.

Roger W. Stucky is an applicant's attorney
who works in a personal injury law firm. In
this interview with Marjory Harris, Mr. Stucky
explores unusual approaches to getting his clients the best treatment and evidence.
> Big Case How-To-Guide
> Computer Corner: Med Manager
> Surviving SB 899
> Getting Best Treatment & Evidence
> Structured Settlement Tips
> New Role for Voc Rehab Eval
> The Nurse Case Manager
> The Physical Therapist
> The Metamorphosis of WC