Applicants Get to Hire Their Own Experts; Send Reports to QME for Comment (LC4605)

March 20th, 2017 No comments

Happy Monday, dear readers!

Your humble blogger brings you the unpublished Court of Appeal decision in the matter of Davis v. WCAB and the City of Modesto.

Remember, dear readers, unless you want to get yelled at, you don’t cite unpublished decisions in court!  See California Rules of Court 8.1115.

Anywho, in the Davis case, applicant alleged a cumulative trauma and specific injury as a result of his job duties.  Both claims were submitted to a QME who concluded that the condition in question was not industrially caused.

Applicant then hired his own doctor (NOT a QME) and forwarded that doctor’s reports to the QME for comment.  In ruling on the City of Modesto’s objection, the WCJ found that the reports themselves were not admissible, but the QME could review them and comment upon them.

At the heart of the issue, of course, is California Labor Code section 4605, which went into effect in its current form on January 1, 2013.  That section empowers an employee to provide a consulting physician at his or her own expense, and a QME is made obligated by the same section to review and address the issues raised by the reporting of this consulting physician.

The WCAB did not address this argument, by its own admission in the face of applicant’s petition for a Writ of Review.  So, in due course, the Court of Appeal consented to the WCAB’s own request to remand the matter so that the WCAB could address it.

Looking at this issue, of course, it’s hard to read Labor Code section 4605 in any way that does not result in a favorable outcome for Mr. Davis.  It appears that he did exactly what 4605 calls for: he retained a physician at his own expense, paid the physician to write some reports, and then sent those reports to the QME for comment.

That being said, perhaps this is a perfect example of when the Workers’ Compensation Laws of California are weighed heavily against employers and insurers.

Here, the applicant’s attorney can pony up some cash as a litigation expense, hire an expert, and require the QME to review and comment on these reports.  Hypothetically, once the report is commented upon, they might even be submitted for trial and a WCJ might find that the QME’s reports are not substantial evidence when read in comparison to the retained physician’s report (even though, at least in theory, this 4605 report should not be the sole basis for an award).

Now, flip this over – let’s say applicant beats defendant to the punch and gets a pill happy applicant’s QME who has sees a role model in Dr. Nick Riviera:

What remedy does the defendant have to get a reasonable physician to comment on the case?

Well, for one thing, a 4050 exam is NOT an option if the case is denied, and even if applicant submits to a 4050 exam on an accepted case, California Code of Regulations section 35 severely limits the reports that can be sent to the QME, and a WCJ can keep those 4050 reports out!

So, what’s to be done in the Davis case?  Well, for one thing, sometimes the applicant attorneys just can’t help themselves, and they file a lien or demand reimbursement for the payments made to the 4605 doctor.  If that’s the case, then the report isn’t really at the employee’s “own expense.”  In theory at least, such a claim for reimbursement should negate the admissibility of the 4605 report.

Now, one thing a defendant could do in such a situation is to delay.  And the way to do that is to cite California Code of Regulations section 35(e), using the same authority that delays the provision of a 4050 report to the QME.

As section 35(e) provides that “[i]n no event shall any party forward to the evaluator: … (2) any evaluation or consulting report written by any physician other than a treating physician, the primary treating physician, or secondary physician, or an evaluator through the medical-legal process in Labor Code sections 4060 through 4062, that addresses permanent impairment, permanent disability or apportionment under California workers’ compensation laws, unless that physician’s report has first been ruled admissible by a Workers’ Compensation Administrative Law Judge…”

But if the case is denied, the consulting report is likely only addressing causation, and not PD, work restrictions, or apportionment.  Furthermore, wouldn’t an “attending” physician constitute “a treating physician”?

If the stakes are high enough, it may be prudent for the defense to hire a physician to review the relevant reports and help draft a supplemental to go to the QME.

Paging Dr. Nick…

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Allegations of Minimum Wage Violations Do Not Increase AWW Calculations

March 13th, 2017 No comments

Happy Monday dear readers!

Your humble blogger missed you all very much.  So, does separation really make the heart grow fonder?

Well, I brought you something very special from my travels – a blog post about calculating average weekly wages!   (You were, expecting, perhaps, a t-shirt or a coffee mug?)

Except for those rare workers’ compensation cases where the average weekly wages exceed the statutory maximum (think registered nurses, perhaps?), carries a potential issue over average weekly wage.  That magical little number determines the temporary and permanent disability rates.  Sometimes it can even be used to calculate the relative exposure for a cumulative trauma case where there are multiple employers and/or insurers.

Recently, the WCAB (quite rightly) affirmed a trial judge’s ruling on how to calculate average weekly wage, in the panel decision of Jacobs v. Institute on Aging.

Applicant was working for the defendant for about 10 months when he sustained an admitted injury.  He testified to working about 49 hours per week.

Applicant’s counsel claimed his average weekly wage should have been $625.26, while defendant was arguing for an AWW of $403.95.  After reviewing the wage statement, the WCJ calculated an AWW of $416.69.  Applicant petitioned for reconsideration.

Assuming applicant actually worked 49 hours per week, that comes out to an hourly rate of $8.50, excluding any potential overtime payment, but California’s minimum wage in 2014 was $9.00 per hour.

Applicant argued that the average weekly wage cannot be calculated in such a way as to allow a violation of the minimum wage laws.  Additionally, it looks like applicant’s counsel decided that a violation of Labor Code section 5813 and regulation 10561(b)(9)(B) was in order, for which the WCAB commissioners admonished her.

In any case, the WCJ relied on Labor Code section 4453(c), and calculated wages based on actual earnings.  In rejecting applicant’s contentions, the WCJ pointed out that the workers’ compensation appeals board is not the proper forum for wage and hour disputes.

Now, readers of this blog will understand that these most humble of internet pages have an incredible degree of hostility to a finding of any benefits being owed.   But, that aside, the theory offered by applicant in this case would drag in considerable other issues as well.  If the employee is not being provided wages because of a termination for cause, and the termination is allegedly some form of contract or legal violation, should the WCAB forum be the place to adjudicate that question?

What about immigration issues – if applicant argues that federal immigration law precluding the hiring of an illegal alien is somehow unconstitutional, should a WCJ be tasked with interpreting the United States Constitution, federal immigration law, and the workers’ compensation laws before overruling Congress?

Whatever allegations the injured worker might make as to broken promises of wages or even the violation of minimum wage laws, the workers’ compensation appeals board has enough to do without engaging in adventures through California’s entire body of law to find additional things to do.

Have a good week, dear readers!

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Interpreter Fees: 2 Hours Min. AT the Market Rate? No!!!!!

March 6th, 2017 5 comments

Happy Monday, dear readers!

Last week, your humble blogger managed to have a cup of coffee with one of the bright young minds helping to shape the workers’ compensation world.  She expressed some understandable frustration with interpreter bills.

For those trying to follow along, California Code of Regulations section 9795.3(b) provides that interpreters get paid at a set rate for a minimum of half day or full day for hearings, arbitrations, or deposition (subsection 1) or $11.25 for every quarter hour, for a minimum payment of two hours for “all other events (subsection 2).  In the alternative, interpreters are to be paid the market rate.

My zealous colleague asked a fairly simple question – why do we pay the minimum hours AT the market rate?  Should market rate be for actual time spent, and set rates with minimum times for the rest?

Let’s say an interpreter provided one hour of interpreter services for a medical appointment and is able to establish that the market rate is $50 per hour for interpreters.  Well, either the interpreter is entitled to $50 (the market rate for the time spent) or $45 per hour for a two-hour minimum as per section 9795.3(b)(2), or $90.  The interpreter should NOT be entitled to a minimum of two hours AT the market rate, right?

Clearly, any theory that results in a reduction in liens and fees to be paid by WC defendants is on the right track and deserves our unwavering support.  Given my own experience that workers’ compensation Judges sometimes like to see something other than your humble blogger’s endorsement of an idea, I thought some research might be warranted.

Among the sources found was the case of Guitron v. Santa Fe Extrudes, an en banc case from 2011.  Therein, the WCAB held that “[w]hile $11.25 per quarter hour, or market rate, as proven by lien claimant, appears to be a reasonable standard, we are not prepared to conclude that the two-hour minimum applies to all medical appointments, some of which might take only 10 to 15 minutes.”

In a 2010 panel decision, Mendez v. Santa Barbara Farms, the commissioners actually went the other way, holding that the lien claimant was entitled to the “market rate” of $115 for two hours, but this was based on other defendants rolling over and paying the full fees to establish the “market rate.”

Your humble blogger wasn’t able to find too much more on this argument, but from the looks of it the field is wide open in terms of binding authority for making this sort of argument.

So, anyone willing to give this a try?  Please let your humble blogger know how it goes!

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Is Skype Testimony Sufficient To Determine Credibility?

March 3rd, 2017 No comments

Happy Friday, dear readers!

Your humble blogger brings you an interesting new case today – one that was brought to my most humble attention by the good folks over at Lexis – electronic testimony by the adjuster at deposition.

Often enough, adjusters handling California cases are in other parts of California, or even other parts of the Union.  So, if you’re a sly and sneaky applicant’s attorney, you might consider finding some pretext for a deposition of the adjuster.  After all, a day out of the office, whether spent testifying or traveling to testify, can be brutal – adjusters already have to juggle enormous case files, phone calls, e-mails, and ready long and pointless blog posts from humble bloggers.

But, let’s remember, we no longer write our briefs by scratching and inked feather upon parchment lit by candle light – we copy-paste our pleadings on brightly lit computer screens.  We no longer seal our declarations with a melted wax and our emblems, but with proofs of service signed under penalty of perjury.  And, of course, we no longer have to appear for testimony in person, we have Skype, Viber, and a whole host of other software that allows testimony by video.

What reason is there to require in-person testimony?  We even allow applicants to testify via Skype when they’ve been deported to Mexico!

In the panel case of Simmons v. Just Wingin’ It., Inc., applicant’s counsel sought to have defendant’s adjuster appear in person to testify at trial.  Defendant sought removal, arguing that requiring a claims adjuster who lives in Illinois to appear in person for trial would visit substantial prejudice upon defendant, especially when CourtCall and video conferencing are available.

In reversing the WCJ, the commissioners wrote “[w]e agree with defendant, and see no reason not to use the alternative means of obtaining the claims adjuster’s testimony.”  The WCJ’s order was rescinded and the adjuster was allowed to appear for trial remotely.

From the WCJ’s report and recommendation on removal, it appears the primary concern with having the adjuster appear remotely is the interference with the Judge’s ability to ascertain credibility.  It is not clear, however, if a video appearance would be sufficient for a judge to determine credibility as a witness.

My dear, fellow defense attorneys – would you be content to take a deposition over video conferencing?  Or is there something that makes the difference by doing the deposition in person?

In any case, if this panel opinion becomes the trend, it might take some of the teeth out of the applicant’s demand to depose the adjuster.  Have a good weekend!

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Chores + Free Rent = Employment? Not in MY WC!

March 1st, 2017 No comments

Happy Wednesday, dear readers!

Your humble blogger refers his beloved readers to that mental filing cabinet we all keep.  The one with the funny stories, the many reasons why we despise our bitter enemies, and, of course, our examples of “no good deed goes unpunished.”

Such is the case in the matter of Garcia v. Whitney, a recent matter denied review by the Court of Appeal.

Defendant Whitney allowed applicant Garcia to stay at her home rent-free.  At some point, defendant Witney asked Garcia to help out around the house.  He eventually cut his finger with a power saw and filed a claim.

The thrust of the argument?  Once applicant started helping out around the house, he was performing services for another, as contemplated by Labor Code section 3357, and thus became an employee.

The WCJ was not amused, and summarized applicant’s argument, thus: “anyone doing anything for anybody else is an employee.”  Based on the WCJ’s report and recommendation, which the WCAB commissioners adopted and incorporated in denying applicant’s petition for reconsideration, there was no evidence to support the contention that the defendants ever threatened to stop providing housing rent free if applicant were not to help out around the house.

The WCJ ultimately held, in finding that applicant was to take nothing by way of his claim, that unless there was some evidence to support the agreement to have an actual exchange of “free” rent for services, a finding of employment could not be supported.

Speaking personally, as a humble blogger, the suggestion that a every interaction is one that creates an employment relationship is a bit dizzying.  Am I suddenly an employee by holding the door for a person in a building?  What if that person were to then hold the elevator door for me – are we now employing each other?  How do I fire the elevator-holder for poor performance?

But, again, few maxims endure with so much vitality and unwavering determination as the one we keep in the back of our minds: no good deed goes unpunished.

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Another LEO Goes Down for WC Fraud

February 27th, 2017 No comments

Happy Monday, dear readers!

Have you heard the news? There’s a horrible plague going around.  It’s a weird epidemic – law enforcement officers are going down for workers’ comp fraud!

Just last week your humble blogger brought you the story of Ryan Patrick Natividad, of the Costa Mesa Police Department.

Well, it appears that Nicholas Zappas, a former deputy of the Orange County Sheriff’s Office, the nameless individual featured on this blog back in November of 2016, has plead guilty to six misdemeanor counts of insurance fraud.

Sentencing includes six months    of jail time and three years of probation, as well as $34,838 in restitution and $1,000 to the Workers’ Compensation Fraud Assessment Fund.

His downfall was, of course, representing pretty limiting work restrictions to his doctor while engaging in cross-fit exercise.   14 years of service, 14 years of assisting in convictions, 14 years of building credibility and a reputation, all up in smoke to collect a bit of wage loss and be assigned to desk duty.

So, here’s something really interesting about this case – the injured worker was placed on modified duty and the employer was accommodating.  Despite this, something made the employer engage in an investigation.

In a lot of cases, if the employer is accommodating and there is no TD being paid (or very, very little) the fraud element goes to sleep. Perhaps this case serves as a reminder to us all that fraud doesn’t always set its sights on a big bag of money – sometimes the fraudsters are intent on flying under the radar and draining siphoning off the pool just a little bit.

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Cosa Mesa Cop Convicted of Fraud

February 22nd, 2017 No comments

Happy Wednesday, dear readers!

California workers’ compensation law provides a tempting target for assigning blame for non-industrial injuries.  The word of the applicant carries enough weight and the bar is so low that often enough, non-industrial injuries can be covered as if they were sustained in the service of an employer.

Well, sometimes these claims lead to workers’ compensation fraud investigations.

Back in July of 2015, the OC Register reported that Ryan Patrick Natividad , of the Costa Mesa Police Department, was charged with insurance fraud related to his September 2014 claim that he struck his first against a wall while transporting a prisoner.  As you know, your humble blogger does not like to name names based solely on accusations, so if this gentleman is being named, there’s more to this than pointing fingers.

Well, just recently, Mr. Natividad was convicted of insurance fraud.  It looks like applicant listed a jail employee witness to bolster his claim.  However, the employee then reviewed surveillance footage and discovered that no such incident occurred, and an investigation was launched.

Now, here’s a though – if you were arrested by Mr. Natividad at any point in his career or if Mr. Natividad provided witness testimony that led to your conviction, don’t you think now would be a good time to reopen your case based on Mr. Natividad’s now non-existent credibility?  Don’t you think that the government’s resources are going to be severely strained trying to answer this fresh wave of challenges based on this gentleman’s conduct?

The vast majority of people in California have nothing to do with the city of Costa Mesa, so what possible benefit is this story to the rest of us?

Whether prompted or not, the worker in this case listed a witness to bolster his claim.  Not only did the witness deny seeing this, but also took the affirmative step of finding video that disproved the claim.  The insurer also took the necessary steps to investigate the claim and prepare a referral to the district attorney.

Perhaps we could all learn from this – work areas would benefit from video recording.  The technology involved is not nearly as expensive as it once was, and the manpower necessary to review these videos is pretty small given that they would only be reviewed in the event that a claim was filed.  A lot of injuries will not benefit from video – the cumulative traumas, the off-site injuries, and the psyche claims, but the specific injuries should.

And, aside from justice being served, providing a basis to deny and fight workers’ compensation claims keeps an employer’s x-mod down, which might help recoup the costs of a simple camera installation.

So, what do you think, dear readers?  Is it worth putting cameras up all over the workforce in the hopes deterring or defeating workers’ comp claims?

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Happy Presidents’ Day!

February 20th, 2017 No comments

Your humble blogger greets you, dear readers, and hopes that your circumstances have allowed you to spend today at ease and at rest.  May the conditions of your life excuse you from the trials of working and the tribulations of shopping (no matter how appearing those sales are!).

If, for some unspeakable reason, you are actually reading this most humble posts, I’d like to appeal to you, especially those that happen to appear regularly at the Board, in the spirit of this holiday.

Civility folks please!

Since the events of last November, and especially the 20th of January, 2017, I’ve observed some pretty harsh words spoken at the Board about matters completely unrelated to workers’ compensation.

Membership in the workers’ compensation community is not monolithic as to politics, and there are attorneys, hearing representatives, adjusters, and lien claimants that fall all over the political spectrum.  With that in mind, I think we would all benefit if we tried our best to stick to the issues of our professional callings, rather than our personal musings.

No one should ever think that TD benefits are being denied because the applicant is a member of the Tea Party.  No one should think that settlement is being rejected because the defense attorney’s car has a Bernie Sanders sticker.

We’re all in this together, for better or for worse, and workers’ comp tends to be one of those little pockets of the law that is actually quiet bearable.

So, your humble blogger calls upon his patriotic and civilized readership… whatever the personal views of you or those around you, let’s do our best to make sure that, regardless of politics, the workers’ compensations system continues to work as it always has.

Till Wednesday, dear readers!

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Sudden and Extraordinary Proven by Applicant’s 12 Years of Experience

February 15th, 2017 No comments

Happy Wednesday dear readers!

Your humble blogger hopes you had a wonderful Valentines’ Day.  I used to be a real valentines’ day Grinch, but then I invested heavily in the flower cartels, the greeting card mob, and the chocolate teamsters, and now I’m all for it!

My favorite highlight from yesterday?  The Walter Sobcheck valentines rhymes (many thanks to Mr. KC). If you’re a fan of the Big Lebowski, take a look at #SobcheckValentines for a good chuckle.  For a bad chuckle, however, please proceed with this post.

Today’s post is about a recent panel decision, Guzman v. Carmel Valley Construction, SCIF.  The WCAB did not add much in denying defendant’s petition for reconsideration, but, fortunately for us all, your humble blogger has acquired the report and recommendation which lays out a lot of the facts and law.

The issue at hand was a crazy one – I mean it: applicant was alleging a psyche injury and defendant had raised the 6-month employment rule of Labor Code section 3208.3(d).  Although it appears uncontested that applicant was employed for a period shorter than six months, applicant alleged the mechanism of injury was sudden and extraordinary: while operating a soil compactor applicant hit a rock causing the soil compactor to fly up in the air and to land on applicant.

Applicant’s testimony was to the effect that in his 12 years of construction laborer work, he had used a soil compactor once per week, and he had never sustained an injury in those twelve years related to the soil compactor.  In fact, he subjectively never anticipated any risk of injury with a soil compactor.  The WCJ found that applicant’s injury was sustained as part of a sudden and extraordinary employment condition.

Because defendant offered no evidence of similar evince happening, let alone being commonplace, the WCJ relied on the uncontroverted testimony of applicant that he had never heard of such a thing happening in his 12 years in the industry.

This seems like a really good opportunity for the employer – the actual, insured, employer to assist.  The employer likely has several very seasoned managers and veterans in the industry who could advise on this point and probably reference prior cases involving OSHA or the workers’ compensation appeals board, even if out of California, to provide examples that these things do happen.

On the other hand, perhaps there really aren’t a lot of incidents out there.  Perhaps the safety manual for the soil compactor doesn’t cover this possibility.

Then, maybe, this really is an extraordinary event…

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No New Panels For Injuries Already Claimed at Time of First QME

February 13th, 2017 No comments

Howdy, dear readers!

Today I bring you the panel case of Parker v. DSC Logistics which everyone’s favorite topic was, again, litigated, appealed, and reversed.  That topic, of course, is what clogs up the Boards, runs up the billable hours, and makes workers’ comp such a busy bee-hive of activity: a panel dispute!

Applicant filed a claim alleging injury to the neck and back.  The claim was denied.  Applicant then filed two additional claims, one for a specific and another for a CT.  Although the dates of injury were different, the parties remained the same – same applicant, same employer, same insurer.

Defendant beat applicant to the punch, obtaining an orthopedic panel.  Applicant then underwent an exam with a QME from this first panel, and then requested two additional panels based on the two additional cases.

Defense counsel, not wanting to pay for two additional QME exams, have two additional opinions (from non-orthopedic panels) in the record, or delay the case to afford two additional medical practitioners to send each other letters competing over who can give the injured worker the highest rating of PD coupled with the lowest work restrictions.

So, away went the olive branches and out came the trail briefs of war – applicant presented a passionate case: MORE MONEY!  Defendant also presented a well-reasoned argument:  Navarro holds that you don’t get a new panel for every claim you allege, especially when a claim has already been filed and applicant was already seen by a QME.

The commissioners relied on section 4062.3(j) and 4064(a) for the proposition that the QME must address “all medical issues arising from all injuries reported on one or more claim forms.”

Accordingly, the commissioners interpreted Navarro to require applicant return to the same QME for all injuries already claimed at the time of the first examination.

Some thoughts here – why would applicant want additional QME examination?

First off, it is in applicant’s interest to make the claim as expensive as possible.  Why? Because the more pain an applicant can inflict on a defendant, even if the money does not go directly to the applicant, the more benefit the defendant sees in closing the file, increasing the justifiable settlement authority.

Additionally, with every single opinion entered into the equation, applicant creates more and more uncertainty as to which of the opinions would be adopted, as well as more grounds for appeal and delay of file closure.  If one’s case is weak, delay is a good thing, after all.

So, of course, this is a fairly good result for those brave practitioners on the defense side – outnumbered, if not outgunned by the applicants’ bar.

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