Rico Allegations Allowed Against Carrier
- Posted By: Harvey Brown
- February 1, 2001
This is a different type of case than is normally reported in this newsletter. Generally the newsletter deals with cases that originate before the Workers’ Compensation Appeals Board(WC AB). In general the WorkersCompensation Act’s (ACT) exclusive remedy provisions will not allow certain actions that can be presented before the WCAB.
This case involved licensed medical groups that provide medical-legal services and medical management companies under license to the medical groups. The defendants were 28 insurance carriers. “At a meeting in 1991, defendants decided to put plaintiffs out of business by delaying payment or refusing to pay for services rendered by plaintiffs to injured workers.” They agreed to keep the meeting secret.
Later they made up “hit-lists”. The appeals court in this case analogized this to the carrier in the John Grisham novel “The Rainmaker”, Great Benefit Insurance Company. The defendants accused plaintiffs publicly of being “fraud mills” and advised other insurance companies not to pay the ‘ plaintiff’s lien claims. The tactics proved quite effective.
Plaintiff’s filed suit alleging a number of actions including fraud and RTCO. The Defendants tried to have the case thrown out alleging the exclusive remedy provisions of the ACT. A judge eventually agreed and that is how this case came up on appeal.
The appeals court looked at each allegation. The court determined mat the abuse of process and fraud claims are within the jurisdiction of the WCAB. However, these may constitute crimes under Insurance Code sections 1871 and 1871.4.
The Cartwright Act “makes unlawful any trust”: “Because a Cartwright Act claim requires a motive mat violates a fundamental public policy rooted in a statutory provision, it is not encompassed within the compensation bargain. Therefore, the exclusive remedy does not apply.
The court next determined that the pattern of racketeering that is needed to establish a RICO allegation also falls outside the compensation bargain and the exclusive remedy does not apply. The court indicated RICO claims are never subject to the exclusive remedy provisions.
The court then looked at plaintiffs claims of tortious interference with business relations and unfair competition law. The court determined this allegations were barred by the exclusive remedy where they were individual acts of ah individual insurance carrier. However, acts where more man one defendant conspire are not covered by the exclusive remedy provisions. The viability of these claims was not determined Just their right to proceed.
- Posted In: Uncategorized
New Case On Change Of Primary Treating Physician
- Posted By: Harvey Brown
- January 1, 2001
A new court of appeals case that was not certified for publication may have added a new wrinkle to the Tenet/C.mtinela Medical Center v. WCAB{Rushing)(200Q) 80 Cal. App. 4th. 1.04.1 case. As you recall in that case when the applicant was considered permanent and stationary and mere was no need for continuing treatment the applicant could not change primary treating physicians.
These cases deal with Labor Code sections 4600, 4601,4602,’ and Adrninistrative Director regulation 9785.
In this case the applicant sustained injury to his head, neck, and back, in the course of employment. The employer selected a treating physician: The physician found the-applicant permanent and stationary. The physician stated the applicant required no further medical .treatment or evaluation.
Applicant through his attorney then sought to get treated by another physician. Applicant’s attorney apparently did not object to the primary treating physician’s report or attempt to comply with Labor Code sections 4061 or 4062. The new physician found the applicant permanent and stationary and that the applicant’s industrial injury aggravated the applicant’s Tourette’s syndrome. This doctor concluded this would result in the applicant receiving lifetime medical care for the Tourette’s syndrome.
The original treating doctor was an orthopedist. The employer then .obtained a qualified medical examination in neurology to address the Tourette’s allegation.
The worker’s compensation judge (WCJ) found the second physician to . be the primary treating physician that carried the presumption “of correctness pursuant to Labor Code section 4062.9.
The Court of Appeal reviewed not only the Tenet case’but also People v. King (1993) 5-Cal.4fh 59 and Lundgren v. Deukmejian, (1988) 45 Cal 3d 727.
The court looked at the language of .9785, subdivision (b). They seemed to indicate that when the physician discharges the applicant the applicant cannot designate a new treating physician before the physician dispute is resolved They specifically state that “…after treatment is concluded, the right to choose a new treating physician is limited. Read in the light of the statutory and regulatory scheme as a whole, section 4600 does not permit an employee to select anew treating physician each time he or she is discharged from treatment and disagrees with’ the prognosis: unless and until it is determined that there is a further need for continuing treatment,”anew primary treating physician may not be selected”
Thus, it would seem the requirement of the applicant being permanent and stationary may have been alleviated by this case.
- Posted In: Work Injury