Tuesday, May 27, 2014

It's A Privilege

We get lost in the world of workers' compensation so deeply, it seems, that we sometimes forget what law really governs our actions.

A recent unpublished (which means that the case is not citable in legal proceedings as authority) opinion by the California Fourth District Court of Appeal reminds us that there are times when the Labor Code, the main governing body of statutes in California workers' compensation, takes a back seat.

One of those times is when it comes to evidence.

Shirley Lappi sustained a workplace injury in 2003 while working as an administrative assistant for the University of California at Irvine. Lappi filed a claim for benefits and demanded that her employer and the insurer produce certain documents related to her claim.

The defendants produced most of the documents, along with a privilege log identifying 205 documents that they asserted were not subject to discovery because of the attorney-client privilege and work-product doctrine.

After reviewing the log, Lappi's attorney objected to the defendants' failure to disclose 47 of the listed documents because they were not communications between the defendants and defendants' attorneys.

A workers' compensation administrative law judge ordered the defendants to provide Lappi with copies of some of the documents.

In her order and opinion, the judge stated that she had determined that the documents, which consisted of communications between claims personnel, were not privileged unless they specifically discussed a communication that had been made by counsel. 

The defendants filed a petition for reconsideration in December 2012. They argued that the documents which the judge had ordered them to turn over were communications between claims personnel discussing "action plans," which were based on legal opinions, discussions and advice from defense counsel. They insisted that these documents ought to be deemed privileged and protected attorney work product.

A WCAB panel rescinded the judge's order, but the commissioners said they were not convinced that the documents were, in fact, privileged.

So on remand, the WCAB said the parties have to select a special master, or the judge will have to appoint one if the parties cannot agree on one.

The Board also said the defendants would have to pay the special master to review the substance of the alleged protected documents and prepare a report for the judge and the parties on what he or she considers to be shielded from discovery.

The 4th DCA, on review, said it was "beyond dispute" that the Evidence Code would have prohibited the type of document review ordered by the WCAB if this dispute had arisen in the context of an ordinary civil case.

"(W)hen it comes to the treatment of privileged information specifically, division 8 of the Evidence Code trumps," the court said. 

Division 8 expressly applies to "any action, hearing, investigation, inquest or inquiry (whether conducted by a court, administrative agency, hearing officer, arbitrator, legislative body, or any other person authorized by law) in which . . . testimony can be compelled."

Ergo, the WCAB remains bound by the statutory requirements for dealing with privilege found in division 8. "As a consequence, the WCAB erred in this case when it ordered an in camera review of the University's allegedly privileged documents by a special master for the purpose of assessing the merits of that privilege claim," the court concluded.

The WCAB's order was annulled.

The case is Regents of the University of California v. WCAB (Lappi), No. G048217, 05/23/2014.

By the way - you didn't happen to notice that the date of injury in this case was 2003 ... still messing around 11 years later with legal maneuvering. If anyone want to know what's wrong with work comp, this should be an example.


  1. 11 years! That's the real crime!

  2. This story just highlights the fact that WC practitioners do not understand or respect the law of privileges, which (to the surprise of many defense attorneys) does apply to WC cases. The rules governing privilege (David, really? Priviledge?) should be used and respected by every practitioner (and WCJ/Commissioner).

    1. Ack! Thanks for calling me out on my spelling guffaw David. Sheesh - think I'd know better. Fixed!!

  3. I wonder what happened to Labor Code section 5708. Anybody ever read the Labor Code anymore?

  4. David! The real problem seems to be lack of enforcement of laws already on the books, defense firms who seem to operate 'above the law' with WC sanctions! Let's be impolite and politically incorrect and talk about the real deal with #WorkComp Fraud in America, shall we?

    Seems that what is needed is a Congressional Task Force to look into the Organized Crime Activities of Work Comp.

    Would you believe,....NOBODY in the State of California seems willing to address the rampant WC LEGAL AND MEDICAL FRAUD that clearly violate Labor Codes, Fraud Warnings.....

    ....Not the District Attorney, not the Special Fraud Investigation Units, Not the Commissioner's Office (didn't YOU say the Commissioner was alarmed at the fraud permeating Work Comp in California? Shocking.

    Even Super Lawyers for applicants say, "...wish I could tell youryour situation is unusual, it's very common....and worse...."

    If you know of any agency willing to address issues involving defense firms and insurance company QME/QME doctor collusion to commit fraud for profit, please let your readers know! It's well past time for an injured worker's CLASS ACTION SUIT...........NATIONALLY.

    When these insurance doctors ... QME/AME crowd..... bill several thousand dollars for their fabrications, wherein with a little slight of hand they can move an injury date forward a year, and use prior year medical records to "prove" prior injury, neatly packaged as 'evidence' with intent to deny medical care, while medical is denied, seems to be an alarming and common problem.

    Their other tricks of their trade are equally telling. Poll the injured worker crowd. The names of the 'dirty doctors' are commonly known, in legal circles too, huh?

    When the defense counsels can omit HUNDREDS of pages of medical records, and after Court Order, provides them in a disorganized mess, and apparently coaches, in writing, the QME/AME crowd on how to cover up their mistakes of the first report (and bill another few thousand) and then move into the 'secret records' wherein they ask doctors to read and opine further about certain medical opinings without medical evidence, that's a problem.

    Didn't you recently say that such secret-police type activities are a violation of California's Constitution, Article 14, along with the US Constitution, 14th Amendment?? WHEN IT'S A PATTERN AND PRACTICE, wouldn't ethical people find such behaviors alarmingin the free world? Ha! One of their doctors said, "If she has human rights complaints, tell her to take it to The Hague."

    [It's comforting to know that if/when he and his are convicted of fraud, they get new wearing apparel AND they have to return the funds.]

    Yikes, you wouldn't believe some of the official communications being collected that basically say, 'too bad how sad, we're/they're above the law'.... :/

    Have you ever heard of those 'spinal fusions' being reviewed for brain injury?? D'oh! Then it was deemed to be just a mistake. I should send you a copy. It's unbelievable.

    Where's the DA for 'mistakes' like those? Didn't you recently say that the FBI would get the job done, if the DA can't? I think that was in a few of your pieces on the politicians and doctor crooks with the spinal fusion issues.

    Since following your blog, I found the link to the warnings and share it regularly.


    1. It's well past time for an injured worker's CLASS ACTION SUIT...........NATIONALLY. DAMN RIGHT.... MEN in suits stealing from men who labor is coming to an end. WE the injured workers will take abuse and persecution no more. IF your working in the DARK to steal from your fellow man/women, then you folks, are just plain wrong and inhumane and will reap what you all so....

  5. Would you believe a Judge advised that FRAUD is not addressed in his Court room, so the trial had to be postponed to gather more info. The trial was 2 years in coming to get in front of a Judge--by an injured worker--in pro per-- for the right to medical care after waiting since 1/9/12. D'oh! ADA accommodation requests were ignored ---perhaps due to a rescheduling of the trial, at tremendous hardship to the injured worker.

    For #TBI, traumatic brain injury, with secondary orthopedica injuries, the only 'authorized' treatments have been few of chiropractic sessions, a couple of psycho-therapy talk sessions in the first year, 6 physical therapy sessions in the second year, and 6 more chiropractic and 6 acupuncture treatments for pain and brain were requested Aug 2013, authorized in FEB 2014 BY COURT ORDER, and subsequent treatments denied. The patterns and practices of simply ignoring doctor recommendations ensures the 'paper trail' is sketchy.

    The collusion is astonishing. Even the District Attorney's offices, and those people Northern California treat FRAUD as one of those untouchable matters. And goodness, the word 'FRAUD' is not even to be spoken in the Courts??

    How about that nasty little practice of defense firms 'omitting' medical records by the hundreds to make their cases? Then promising the Judge to provide the omitted records, ordered by Court order, and failing to do so, without repercussions.... REPEATEDLY SINCE THE COURT ORDER. A smile and a shrug, and the injured worker goes another year without medical care, and with no support from WC?

    It's late and I don't have time to shorten this comment. One final word, thought, after attending the Scripps 9th Annual Brain Injury Rehabilitation Conference last weekend at San Diego, there were some mighty smart scientists and doctors and military personnel and others presenting and attending about Brain Injury diagnosis and treatment.

    None suggested 'a little chiropractic, a couple of psycho-therapy sessions, and a little PT and a couple of needle pokes via acupuncture' as a legitimate course of action for treatment of TBI....and even ol' DARPA has funded mega research on brains. That may prove helpful to Military Personnel.

    Get this....it's almost funny if it wasn't so pathetic. Three doctors have requested most recently a multi-disciplinary team of treatments for the untreated TBI of 1/9/12. The adjuster said the facility would not discount their rate to their insurance company, so no go, and besides, he no longer makes any of the medical decisions; they are all made by the defense counsel (not a doctor).

    Didn't you just do a blog about the extreme profits of the work comp insurance industry?? YOU LEFT OUT THE PART ABOUT HOW THEIR PROFITS ARE ON THE BLOOD, SWEAT AND TEARS OF AMERICAN WORKERS. THERE OUGHT TO BE SOME LAW ENFORCEMENT, HUH?

    Like you, the Commissioner's office suggested that an unrepresented worker rely on the Information and Assistance Officer for legitimate help. More on that next time.

    CARRY ON, DAVID.... YOUR WORK PROVIDES A NECESSARY EDGE. It would be great if you could see the other side, from the perspective of injured workers. WE see what's really going on, and we know...THE SYSTEM IS NOT BROKEN; IT WAS DESIGNED THIS WAY.

    You proved that in your recent blog about the billions the insurance industry rakes in..... Maybe that's why injured workers call it a RACKET.

    Thanks for listening. If you have any tips, I'll look for them here or send them privately to LucyOccupy@gmail.com. You've got my number too. Thanks.

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  6. Can of worms,...WCC are public, yes? I just read this and shake my head. This is why a legitimate back claim turns from $15k to $1.5M, only worse. Stop the madness!

  7. Is allowing men to be intently be driven insane, in a system that is stacked intently against the workers, all for corporate profit, really good for our gun fighter nations as a whole today? Or is it folks trying to get out of their obligations in our GRAND BARGAIN that is leading to more harm in our world than good...BUT yet all the suits keep on getting richer, while the laborers toil their lives away, and are tossed out to the streets or the FEDERAL roles because corporate America does not want to hold up it's end of the bargain and is even willing to cheat omit and wrongfully deny labor to a point that it kills them and ruins their families some times generation after generation. THUS ensuring the DIVED continues. And these are the same corps who are not paying any federal income tax, but yet disposing of their used up workers off to the them, once they are done abusing and making profit of the laborers blood, sweat, and tears, for years. IT IS A BROKEN SOCIAL CONTRACT that's allowing main street to fleece the labor force on the back ends of their working careers. That's not fair, that's not just, and folks had better wake the eff up, or it's going to come back to bite them in the but...... Nothing but a silent back door austerity and feeling of the poor by MEN IN SUITS

    1. Fleecing of men in suits. Not feeling. He he he ooohps

  8. The bottom line, Austerity through our workers comp and HMO's, is just not working.

  9. This system is abusing workers and one them is going to go off on us all one day. Mark my words. YOU can not allow men in suits to steal from labor in this manor and not expect a fight back from those folks being harmed and taken advantage of, by it all. THE BRIANIACS had better wake up, before the bottom rises up and takes those sivler spoons right out of their mouths. Just saying, you suits can put what ever spin you want on it... IT's big bullies taking advantage of little working class folks. A GRAND FLEECING of the poor by the elite.

  10. Maybe I am just a naive Canadian resident but I worked in the field of Worker's Comp. for the past 25 years. I was employed as an Adjudicator with policies and regulations from a Provincial Legistature, in this case, Ontario.
    In reading the various comments it seems to me that the entire Compensation system should be taken out of of the hands of Lawyers. I am sure this will not be a popular observation but I believe that all parties, Employers and Workers would be better served.
    As for the Medical profession let them be Doctors and tell us the limitations of an injured worker and leave the opinion on who can return to work and at what duties to the specialists such as your Ergo. and other Physical Functionals therapists.

  11. THERE'S A PROBLEM.... "In reading the various comments it seems to me that the entire Compensation system should be taken out of of the hands of Lawyers. I am sure this will not be a popular observation but I believe that all parties, Employers and Workers would be better served."

    When the Lawyers are calling shots on who does and does not get medical care, practicing medicine without a license, there's a problem.

    When doctors and their PA's (Physician Assistants and Medical Assistants) who do most of the evaluations and sorting through medical reports) feel as if they are expected to be "lawyers", there's problem.

    When a neurologist can spent 35 minutes in an alleged 'comprehensive neurological evaluation' and defer medical records review to a 'well trained' hourly worker and billl THOUSANDS OF DOLLARS for reports to fraudulent support insurance company wishes for denied medical care; there is a problem.

    When other doctors can, with slight of hand, move date of injury a year forward to use prior year medical records to cite 'evidence' of prior head injury and symptom complaints, there's a problem.

    When WorkComp Judges refuse to hear about FRAUD in their Courtrooms, and when the Office of the District Attorney suggests there is 'insufficient evidence' to warrant investigation, there's a problem.

    When Applicant Attorney's seek not to secure medical care, but to settle for a fast buck, there's a problem.

    When the "suits" and "jackets" break all the laws and there is no law enforcement, there's a problem.....

    When the maiming and killing of injured workers in America goes on and on and on. In a sense, what's happening with the VA is not unlike the horrors of WorkComp....There's a problem.

    David DePaolo..... are you aware of the group, NAIDW, National Association of Injured and Disabled Workers? Maybe you can do a future blog and include what you discover there.....https://www.naidw.org/