WCAB Doesn’t Inhale: No WC Reimbursement for Marijuna (Yet)

April 17th, 2015 No comments

Hellooooo Narcs!  Clear the smoke, dear readers – the WCAB has again declined to order a defendant to reimburse an applicant for the cost of medicinal marijuana.

lebowski opinion

In the recent panel decision of Cockrell v. Farmers Insurance, the WCJ found that applicant was entitled to reimbursement for medical marijuana.  The case was previously before the WCAB back in 2012, when the parties were ordered to consider Health and Safety Code section 11362.785(d), which holds that “[n]othing in this article shall require a governmental, private, or any other health insurance provider or health care service plan to be liable for any claim for reimbursement for the medical use of marijuana.”

The issue was remanded and came up to the WCAB once more.  In a recently issued panel decision, the WCAB instructed the parties to revisit the issue on the trial level once more, to determine whether workers’ compensation insurance constitutes a “health insurance provider” to determine if section 11362.785(d) directly applies to workers’ compensation benefits.

The panel opinions seemed to suggest, at least to your humble blogger’s reading, that the commissioners were initially inclined to find that a workers’ comp insurer does NOT have to provide reimbursement for marijuana.  However, if the defendant were to argue that an order to reimburse applicant for his marijuana purchases would violate federal law, the commissioners need only point to the Mota v. Allgreen Landscape case, where a workers’ compensation defendant was forced to hire an applicant’s wife, who could not produce proof of the legal right to work in the United States, to provide in-home care.

This is an important issue to address, but perhaps the WCAB is not the place to address it.  More states are moving to recognize medicinal and even recreational use of Marijuana, and, depending on the administration, prosecution of Marijuana use might decline here and there.  California itself, might gradually move to more lax Marijuana laws.

But, for the time being, it is a question that needs answers – must an employer provide reimbursement, if not physically deliver, the marijuana to applicant?

Of course, if it does prove too expensive, perhaps we should ask around if anyone “knows a guy.”

Categories: Uncategorized Tags:

WCAB: AME Reports Must Go to IMR

April 15th, 2015 No comments

Hello, dear readers!

Is submitting an AME report, or a PQME report, to IMR required?  In the case of Garibay-Jimenez v. Santa Barbara Medical Foundation Clinic, the panel of WCAB commissioners answered: “Yes.”

Applicant sought to appeal a timely UR denial by submitting the issue to IMR.  Both parties had in their possession AME reports, but neither party sent them to IMR before the decision was made.  The WCAB, reversing the WCJ, ruled that Regulation 9792.10.5 and Labor Code section 4610.5(l)(1) require the defendant to provide AME reports to IMR for consideration.   “The error cited by applicant was the failure of both the UR and IMR physicians to review the reports of the AMEs who recommended the left ulnar nerve decompression and post-operative physical therapy.”

The WCAB held that relevant regulations impose a duty upon the employer (and its insurer) to provide relevant records to IMR, and when the defendant fails to do this, any adverse determination by IMR is subject to an appeal and, possibly, an IMR re-review at the employer’s expense.

Now, your humble blogger may not know the first thing about workers compensation, or about fancy cars, or big city doings, or even the new-fangled things the kids use like the twitter and the Instagram… but I do know what the word relevant means.  And, from what it looks like, an AME report (or reports)… well, relevant it’s not.

What opinions could an AME offer on the issue of medical necessity or the need for a particular course of treatment?  After all, compensability of the injury is not in question – the injury is already admitted.  Nor is the issue in dispute a total medical discharge.  The AMEs can’t offer much by way of necessity of medical treatment, after all, because Labor Code section 4062.2 specifically prescribes submitting to AMEs the issues reserved for UR and IMR.

So… what could the AME offer by way of “relevant” information? IMR can competently summarize records, and IMR is not concerned with matters of work restrictions, permanent disability, apportionment, etc.  The only relevant question is whether the treatment requested by the primary treating physician is medically necessary… and the good folks and UR and IMR are supposed to tackle that one themselves.

Now, you might say “Hey, Greg, the AMEs are the ones that recommended the treatment, so their opinion IS relevant.”  Well, if your humble blogger were sitting next to you when you said that, you would get the frowning of a life-time.  California Code of Regulations section 9785, tells us that the primary treating physician is “the physician who is primarily responsible for managing the care of an employee, and who has examined the employee at least once for the purpose of rendering or prescribing treatment and has monitored the effect of the treatment thereafter.”  Furthermore, the same section tells us that the employee can have only one primary treating physician at a time.  So, while the AMEs can recommend treatment, the PTP is the one who is supposed review the recommendation and either concur or reject it.  And, whatever the PTP decides to do, his or her own report is the relevant one, not the original AME report.

So what is so “relevant” about AME reports?  Well, it looks like the WCAB considers the reports relevant, so defendants would be wise to provide AME and QME reports to IMR, even if the applicant has it in his or her possession.   What’s the downside to sending everything, out of fear of leaving out something that might be later considered “relevant”?

We get to suffer through accusations of flooding the IMR reviewer with irrelevant information in the hopes of hiding a needle in a haystack, as was the case when IMR was just rolling out.

Now, don’t get me wrong – the use of AMEs is a great thing.  It speeds up litigation process, it contains costs on panel disputes (which are now expected in almost every single case), and it provides an incentive for doctors to be reasonable and fair and to establish trust from both the defense and the applicant communities.  And, it doesn’t seem too far-fetched for the parties to trust an AME on the issue of medical treatment necessity.  But, if we’re not submitting the issue of medical treatment to the AME, and we are going the UR and IMR route, your humble blogger submits that medical-legal reports are not relevant.

Categories: Uncategorized Tags:

Proposed Legislation Would Make Runners, Cappers, and Steerers Liable Too!

April 8th, 2015 No comments

Hello, dear readers!

It’s Wednesday, and your humble blogger brings you something interesting from California’s Legislature.

Assembly Member Tom Daly, of California’s 69th Assembly District, has introduced Assembly Bill 686, which would essentially grant a hunting permit to any “interested party” for runners, cappers, or steerers in the workers’ compensation arena.

For those that aren’t familiar with the concept, most states, California included, frown upon the practice of doctors and lawyers paying people to bring in potential clients. This includes ambulance chasers…

However, unlike the depiction above, many attorneys are far too busy to do the running, capping, and steering themselves – so they hire other folks to do the leg-work for them.

Assembly Bill 686 would extend the current prohibition on employing runners, cappers, and steerers, to also prohibit acting as runners, cappers, and steerers.  So, when you see a less-than-respectable fellow walking around, from hospital room to hospital room, promising millions for injuries sustained at work, this bill, if enacted into law, would enable an interested party to sue the runners themselves, rather than just the puppeteer.

Presumably, the potential for disgorgement and civil liability would motivate a runner to roll over on said puppeteer, leading to deeper pockets to make the victim-insurer and employer whole.  Presumably, this would also make those attorneys (and doctors) who employ runners, cappers, and steerers, wary of retaining them for fear of being betrayed.

Here’s hoping.

But, what’s the big deal, right?  If a zealous and devoted attorney wants to help those injured at work, and is willing to undertake the expense of making knowledge of the existence of his or her services available to the injured workers, what’s so bad about that?

Here’s what’s bad about that: “Why are you going back to work?  We can get you a big stack of money, some great drugs, and you get to go back to work like nothing ever happened.” “Oh, well, in that case, sure, sign me up!”

Mr. Capper gets his $500 (the going rate, your humble blogger is informed by a source here and there), and the attorney (or doctor) gets a fresh client/patient to run with.

In other words, whereas an injury could have resulted in conservative care and return to work, suddenly, an injured worker’s expectations are falsely manipulated (increased to allow a pay-day for all those that would benefit from an injured worker’s plight) and the insurer and employer are forced to bear the costs of unnecessary litigation.

Furthermore, the legitimate, honest, and good-faith applicants’ attorneys and treating physicians have to compete with the guys for business. They have to compete with practitioners who employer runners, cappers, and steerers for the reputation and nature of the business.

It’s a practice that harms the process and all those involved with it, and I would welcome this, among other, efforts to stop it.

Here’s hoping that this piece of legislation flies from the pages of your humble blogger’s blog to the Governor’s desk in a hurry.

Categories: Uncategorized Tags:

IMR: No In-Home Care! PTP: We Asked for Handrails on the Bathtub…

April 6th, 2015 No comments

Hello, dear readers!

Your humble blogger greets you with wishes of a Happy Easter and a Happy Passover!  Some of you, no doubt, are enjoying your Cadbury eggs, laughing maniacally as you observe your fellows eating unleavened bread.  In the meantime, your humble blogger, as he brushes Matzo crumbs off his desk and eagerly awaits the post-Easter chocolate sales, has a bit of a blog post for you.

In the matter of Takafua v. FP International, applicant’s case-in-chief had already been resolved with the future medical care rights left open.  The primary treating physician submitted a request for an assessment of assistive devices, reasoning that the injured worker might need devices for safety reasons at home, and possibly a new vehicle with a new lift.  This followed applicant’s fall in the bathtub, resulting in a head injury and a trip to the emergency room, as well as an ankle sprain.

The request was timely denied by UR.  Then it gets interesting.

IMR issued a decision upholding UR’s denial, reasoning that services at home, such as shopping, cleaning, and laundry, and durable medical equipment, are not necessary.  But the request was for an assessment of applicant’s needs for assistive devices.

The matter proceeded before the WCJ, who ordered IMR to provide a re-review with another reviewer, pursuant to Labor Code section 4610.6(h), under subsection 5: “[t]he determination was the result of a plainly erroneous express or implied finding of fact…”

Now, hypothetically, if IMR had come back and said that it is not reasonable to have assistive devices, perhaps the result should have been different.  After all, if IMR has already determined that whatever devices an assessment would recommend would not be medically necessary, the assessment becomes somewhat of a moot point.  But, in this case, IMR is answering a question no one asked.

Defendant filed for reconsideration and the WCJ’s report was adopted and incorporated, denying the petition.  The matter was denied review.

Now, what result? The original request was made in April of 2014.  That means that, as of January, 2015, the matter could proceed to IMR for a second review.  In other words, a gentleman with an admitted injury to the bilateral knees, already having suffered a fall, a head injury, and a sprained ankle as a result of falling in the tub, will likely wait one year before there is an assessment of what assistive devices he would need in his home and car.

On top of that, defendant is out the litigation costs.  Furthermore, aside from just the human considerations for the potential hurt to applicant – what about the increased medical bills that would likely be tied or claimed to this injury, all on defendant’s dime?

Your humble blogger isn’t privy to all the facts, of course, not having been a party to this case, but from the looks of the WCJ’s report and the panel opinion, it may have been economically prudent, both in the short term and the long term, to just authorize the assessment.  After the assessment came back, it probably would be prudent to authorize the assistive devices too, at least in a financially feasible way.

Why the short term? Because you can probably prevent more injuries, and prevent the need for even MORE medical treatment, by putting handrails in the bathtub and anti-slip mats on the floor.  Why the long term?

Because, in the long term, we in the defense community have a reason to be the reasonable side – not the side making outrageous claims; not the side that’s calloused and foolhardy and reckless with the health of injured workers, like some doctors and attorneys that herd somewhat-injured workers into serious surgeries to be maimed.

We want the credibility of denying medical treatment for a good reason – such as a spinal surgery in a particular applicant’s case will likely maim him or that general anesthetic, in another case, will likely kill the patient because of his morbid obesity and the extra difficulty in properly calculating the right amount of sedative.

Or, the more common and less dramatic scenario, that because the last 8 chiropractic sessions have proved completely ineffective, further chiropractic treatment is inappropriate at this time, or that if applicant can take a 1 hour bus ride, he’s not entitled to a limo instead.

Gear up, dear readers – it’s going to be a bumpy week!

Categories: Uncategorized Tags:

California Supreme Court: No Dubon Review

April 3rd, 2015 No comments

Hello, dear readers!

So here we are – another week gone.  And, after being tricked intro drinking coffee with salt instead of sugar, after having your desk covered in post-it notes, and after being misled into buying workers’ compensation insurance for your pet dog, you’re finally ready for some good news.

Well, leave it to your humble blogger to bring you some!

So, from the looks of it, the California Supreme Court won’t be chiming in on Dubon, and the decision looks like it’s going to stand, at least for now.

As you will recall, Dubon, that en banc WCAB opinion which ultimately held that, unless UR is untimely, it HAS to go to IMR, is not the only case that challenges the absolute exclusivity of the UR-IMR procedure.  The case of Stevens v. WCAB is likewise working its way to the Court of Appeals’ decision desk, with Mr. Stevens seeking to establish that Workers’ Compensation Judges should have jurisdiction over the validity of UR and IMR.

Now, while we in the defense community might all dance in the streets at the idea that, for a bit longer, at least, there’s no adverse decision on the question of the validity of IMR, there’s a bit of frustration everywhere else.

Treating physicians are certainly upset that they can’t get authorization for all the treatment they would like to perform (and bill for).  And, of course, applicant attorneys are upset that they can’t get more and more treatment for their clients, whether for the sake of the treatment itself or just for the ability to drive up costs for defendants as a means of leveraging higher settlement amounts.

Now, as much as your humble blogger is a cold, heartless defense attorney, I can’t help but agree with some of the sentiments of the anti-IMR crowd.  It’s horrible when UR denies home modification on the basis that the UR reviewer would not have authorized a wheelchair in the first place.  It’s horrible when UR denies an MRI for the back because the knee has not been admitted as an injury (that’s not a typo dear readers, and no, I’m not making these ones up).  It’s horrible when UR refuses to authorize Scotch injections for a spiritually and morally crushed but physically health workers’ comp blogger (that one might actually be made up).

But, you know what else is (arguably equally) horrible?  The abuse employers and insurers receive in California’s workers’ compensation system.  Employers are forced to provide sleep number beds.  Employers are forced to provide treatment for non-industrial conditions just to make industrial treatment feasible.  Neither temporary disability nor medical treatment benefits are subject to apportionment.  We’ve seen insurers with just a few days of coverage be stuck with the entirety of a career-spanning CT.

At the moment, it looks like the only two possible scenarios are those in which one of the parties is left very unhappy – either employers are forced to provide treatment of questionable reasonableness and necessity, or employees are deprived of reasonable and necessary treatment on questionable grounds.  The legislature is clearly not content to leave decisions in the hands of the Administrative Law folks, and the Administrative Law folks aren’t happy leaving the decision in the hands where the legislature placed it.

We need another solution, and quick.  Your humble blogger’s ideas have been roundly rejected, including (1) have all jobs done by robots that are specifically programmed not to rebel against humanity; (2) tell all employees to stop getting injured at work; and (3) wrap all employees in thick layers of bubble-wrap prior to sending them out to do the day’s tasks.

Are you guys sure I can do welding in this?

Are you guys sure I can do welding in this?

What are your ideas?

Categories: Uncategorized Tags:

BREAKING: 9th Circuit Rules on Animal Rights to Workers’ Compensation Case

April 1st, 2015 No comments

As my dear readers will recall, two years ago, a curious lawsuit was filed in San Francisco by the “Society for Animal Rights in the Workplace” (SARW) on behalf of animals, both agricultural and as domestic service animals, throughout California.

The lawsuit alleged, to the amusement and disbelief of many side-line observers, that animals performing work, such as guide dogs, tour-guide horses, and cows, are entitled to workers’ compensation benefits.

“Our furry friends deserve our protection” Jack Vangerf, speaker for SARW said on the courthouse steps of the 9th circuit, yesterday.  “We must speak for those who cannot speak for themselves.  Cows say ‘moo’ horses say ‘neigh’ and we say ‘no more!’”   The defendant in this bizarre lawsuit was the State of California and the Department of Insurance, which had, heretofore, been unwilling to enforce workers’ compensation laws for the protection of animals.

I Can Has Obedience School Voucher?

I Can Has Obedience School Voucher?

Judge Robert Arten, of the San Francisco District Federal Court dismissed the case.  In his opinion, he acknowledged that animals can be loyal, productive, useful, and at times, delicious, but that does not make them “workers” as contemplated by California’s constitution or the Labor Code.

On appeal, however, the 9th Circuit reversed, ruling instead that California cannot discriminate between the working man and the working animal. Writing for the majority, recently appointed Judge Koztka of the 9th Circuit held “Neither California nor common sense distinguish between the man working in the field and the animals working at his side.  They are both entitled to all the benefits of the Workers’ Compensation Act.”  He continued: “if an agricultural or domestic employer wants to arrange an ‘independent contractor’ term with his service animal, then, obviously, that arrangement would fall outside of the Workers’ Compensation laws, but unless that is properly established, the plaintiffs have a case.”

Your humble blogger reached out to one of the real parties in interest in this case, and she had this to say:

Powerful words.

California’s Attorney General, Kamala Harris, responded to the news by saying “Was that a real thing? How did you get in here? Security!”  Meanwhile, the California Chamber of Commerce has urged all agricultural entities, owners of horse-drawn buggies, as well as any persons relying on service animals to quickly purchase workers’ compensation insurance in the event the 9th Circuit’s ruling holds.

Your humble blogger however, urges calm and wishes his beloved readers a Happy April 1st, 2015.

Categories: Uncategorized Tags:

Home Care Fraud Charges Against “Injured” Worker; Ex-Wife

March 30th, 2015 No comments

Hello, dear readers!  Your humble blogger brings you the story of a recent fraud case today.  As the defendants in this case are merely accused, and not convicted, I will decline to name names.  That being said, the information is just a click away to the California Department of Insurance website.

This story is a common one – worker gets injured at work and the injury is accepted.  As part of future medical care, home-care is provided, and the injured workers’ (now ex-) wife provides the “home care” billing the insurer for the services.

So, what’s the problem, dear readers?  Sub rosa video apparently showed that the “injured” worker didn’t need the home health care, and this raised significant doubts that any such care was necessary or provided.

We’ve seen similar issues on this little blog before – where an insurer was forced to hire an illegal alien to provide in-home care services to an injured worker, on the sole basis of the marital relationship between the injured worker and the in-home care services provider.  In other words, even though the injured worker would not be able to obtain legal employment otherwise, through the magic of comp, this became possible!

The in-home care “treatment” provides an exceptionally effective opportunity for fraud because of the degree of trust and cooperation between the two conspirators – they can both profit and share the proceeds of fraud, the benefit being in the form of liquid cash rather than opioids that have to be sold or durable medical equipment with low re-sale value.

Obviously, your humble blogger wishes the prosecutorial forces all the luck in the world, and I’m certain justice will be sought and done.  At the same time, perhaps this can serve as an opportunity for us to remember that when in-home care services are being provided, especially by a family member rather than a professional agency, we should regularly check to make sure the services are both necessary AND being provided.  Typically, sub rosa will do the trick, although social media monitoring should be explored as well.

What’s your worse home-care story?

Categories: Uncategorized Tags:

18% WPI For Injured Thumb (Amputations are 22%)

March 27th, 2015 No comments

Your humble blogger has learned, through painful experience, that there are certain facts in life which are inconvenience, unpleasant, and unmoving.  In the words of Mary Schmich: “Prices will rise.  Politicians will philander.  You, too, will get old.”  In the world of workers’ compensation, one such fact is Almaraz/Guzman.  No, we can’t just have our AMA Guides.  No, we can’t have any measure of certainty or predictability as to the depth or extent of liability.

Your humble blogger has reluctantly come to terms with this very unpleasant and hopefully temporary fact.  But, the use of A/G needs to be reined in like a wild horse that has run away and started wildly assigning higher impairment values than what is reasonable.

With that pleasant image of Mr. Ed running away, going to medical school, becoming a physician, and, after several years of experience, becoming an applicant-oriented QME, we conclude our humble blogger’s stream of consciousness and move on to the matter at hand: Ramirez v. Space Lok.

In Ramirez, applicant sustained several industrial injuries, but the focus of the case was the thumb.  The PQME found that the 1% assigned by the AMA Guides to the thumb was not adequate, and, instead, used grip loss to assign 18% WPI (for the folks keeping up with the numbers at home, that mean the doctor found a 61-100% loss of strength for the left hand).

Although the WCJ instructed the DEU rater to rate the 1% WPI as per the “straight” AMA Guides, the WCAB, upon applicant’s petition for reconsideration, reversed, ordering the 18% WPI to be rated instead.

Now, again, I understand that the PQME found that applicant had pain in his thumb and that 1% WPI did not adequately reflect applicant’s impairment.  Now, I also understand that, a TOTAL AMPUTATION of the thumb yields a 22% Whole Person Impairment.

Now, you might be thinking to yourself – “well, if the guy can barely use his left thumb, it’s practically an amputation, so 18% vs. 22% doesn’t sound so unreasonable…”  Well, consider this: there are very few people in the world that can effectively fake a thumb amputation.  By contrast, subjective complaints such as pain and grip loss are not as reliable.  But don’t take my word for it, consult the AMA Guides: the instructions for rating grip loss are, at every other step, methods to try to minimize fraud because grip loss is inherently subjective.   For the AMA Guides, a good rule of … wait for it … THUMB is to focus on objective impairment instead of subjective complaints.

Now, your humble blogger has no suggestions about the veracity of Mr. Ramirez’s claim – two surgeries and documented deformities to the thumb seem pretty objective to the undersigned.  However, it appears improper to equate the maximum impairment for a measure upon which the AMA Guides clearly casts so much doubt and suspicion, as to the maximum impairment for an objective impairment such an amputation.

If Dr. [of law] Grinberg was on call, the results would be very different indeed.

I don’t know if this argument was used or proposed to the PQME or if it would have gained any traction if it had been.  But, on a spectrum of a “straight” rating of 1% and a total amputation of the thumb at 22%, perhaps some QMEs would be persuaded that 18% is not appropriate for a person who still has a somewhat functioning thumb.

Have a good weekend, folks!

Categories: Uncategorized Tags:

WCAB Split Panel: Get that IW a Sleep Number Bed!

March 23rd, 2015 2 comments

Your humble blogger greets you this fine Monday morning feeling refreshed and well rested.  How, you might ask? Well, I got the same number of hours as always.  My dreams were haunted with benefits being provided in excessive of those required by law.  So how was I so well rested when my alarm went off?

I had a sleep number bed!

Now, you might be thinking “Greg’s just a humble blogger and a handsome defense attorney, how can he afford a sleep number bed?  Did he become an applicant’s attorney and get rich overnight?”  No, dear readers, not at all.  Through the magic of workers’ compensation, I was able to get a sleep number bed for free!

Just kidding, dear readers, but I do bring you the case of Carnes v. Auto Zone, wherein the applicant’s primary treating physician submitted a request for authorization of a sleep number bed, base, and pad, ($5,325.86 in costs) and the UR deadline was not met.

dr house thumbs up

Applicant brought the matter before the WCAB, and, relying on Dubon’s holdings (recap: WCAB can only review UR determinations if UR deadlines are not met; in those cases, requests for authorization must still meet “reasonable medical necessity” threshold).

At the expedited hearing, the parties stipulated that defendant’s UR regarding the request for authorization for a Sleep Number bed was not timely, but defendant maintained that the requested “treatment” was not medically necessary.  The WCJ ultimately found that the sleep number bed was medically necessary, and ordered Defendant to provide it.  Defendant decided to sleep on it (get it?) and then sought reconsideration.

The Treating Physician, a back surgeon, noted that applicant’s current mattress was 15 years old and he needed a new one for his post-surgical recovery.

Now, we don’t get much from the WCAB opinion, other than the fact that two of the three commissioners adopted and incorporated the WCJ’s reasoning.  But, as your humble blogger has referred to one or two times in this blog, his old law school professor used to say “if you want to know what really happened, read the dissent [too].”

Your humble blogger’s favorite part of the dissent?  Footnote 3: “It may be that applicant has an old mattress and he would sleep better with a new mattress, just as other things are undoubtedly important to his recovery, like food, clothing and housing.   However, that does not make defendant liable to provide all of those things as reasonable medical treatment.”

Your humble blogger agrees with the dissent wholeheartedly:  It could be that a dog would help applicant recover because it would cheer him up.  It could be that a bank account with $1,000,000 waiting for applicant to claim it would motivate him to regain his good health.  It could be that daily sacrifices to the ancient pagan deity Grinbergia Bloggus would increase the chance of the surgery’s success.  None of that is in the record.

Now, the logical conclusion that applicant needs a new mattress is there without being developed.  After all, the WCAB has previously required the construction of wheel-chair ramps on an applicant’s vacation homeThe WCAB has previously shifted to defendants the cost of an applicant exceeding work restrictions because his second-floor apartment didn’t have an elevator.  So, it’s not entirely out of line for the WCAB to require appropriate medical equipment at home, such as replacing an applicant’s 15-year-old mattress with one that’s newer and better.

In fact, it’s entirely possible that the treating physician has real, sound, un-rebuttable evidence that a sleep number bed is specifically necessary for post-surgical recovery, as opposed to just a decent new mattress that will stay firm for 2 years instead of being guaranteed for 10.

As the dissent very effectively points out, none of that is in the record.

Now, if you’ll excuse me, I’m going to sell my doctor on the fact that a cruise to Alaska is medically necessary for my industrial paper cut.  Wish me luck…

Categories: Uncategorized Tags:

Sexism and WC

March 20th, 2015 No comments

Alright, dear readers, it’s Friday, and the subject of today’s post is sexism and workers’ compensation, but your humble blogger doesn’t want to tell any sexist jokes, so here’s a video of construction workers NOT cat-calling:

Ok, so, the buzz around all the workers’ compensation (and some of the non-workers’ comp) news sources is that Assembly Bill 305 is going to strive to reverse sexism in workers’ compensation law.  Now, AB-305, introduced on February 12, 2015 by Assemblywoman Gonzalez, has absolutely nothing to do with workers’ compensation, but from the looks of it, California Applicants’ Attorneys’ Association has a draft of the language that may eventually be introduced here.

Basically, the idea is that Labor Code section 4663, which requires “[a]pportionment of permanent disability [to] be based on causation” to be amended to specifically exclude pregnancy, breast cancer, menopause, or osteoporosis from the apportionment analysis.

Now, your humble blogger is no political analyst, but I’m guessing that this would not be an issue, and no such bill would be necessary, if doctors never apportioned the cause of permanent disability to these conditions.  I’m also not a physician, but I’m going to go out on the proverbial limb and say that some doctors could reasonably conclude that the effects of pregnancy, breast cancer, menopause, or osteoporosis might contribute to the overall permanent disability of an industrially injured worker.

As such, if, non-industrial conditions are causing permanent disability, and AB 305 would prohibit apportionment to them as non-industrial causes of permanent disability, aren’t we just forcing employers to provide permanent disability benefits for non-industrial disability?

The language in this proposed piece of legislation continues that “[a]pportionment in cases of psychiatric injury may not be based on psychiatric disability or impairment caused by sexual harassment.”  Again… if a portion of an injured workers’ psychiatric permanent impairment is caused by sexual harassment, particularly non-industrial sexual harassment, why should the employer be forced to pay for the same?

Interestingly enough, and I hesitate to write this less I provide anyone with ideas, Labor Code section 3208.3(b)(1) requires that the injured employee claiming a compensable psychiatric injury prove, by a preponderance of the evidence, that actual events of employment were predominant as to all causes combined of the psychiatric injury.  So, if 50% of the permanent disability of the non-psychiatric injury is caused by menopause, and we can’t apportion the PD to the menopause, the menopause is still not an actual event of employment.  Causation of permanent impairment and causation of injury are different points of analysis, after all.

Now, on the “bright side,” that means more money for injured workers and more money for the attorneys of injured workers.

On the other hand, in the long run, when we reach the tipping point and start losing more jobs.  You see, dear readers, in the circle of economic life, applicants’ attorneys need injured employees.  But, of course, injured employees (and non-injured employees) need employers.  It goes without saying that insurance companies and defense attorneys are in the same cycle of economic life.

With all due respect to assemblywoman Gonzalez, I am hoping this idea has a bright and short life in the discussion pools, and then settles comfortably into a footnote status that some researcher will uncover in 50 years (Did you know that in 2015, some people wanted to exempt from apportionment certain conditions which are typically suffered by women?).

Categories: Uncategorized Tags: