Pre-IMR Agreement to use AME on Medical Treatment Questions Upheld by WCAB (Again)

October 16th, 2017 2 comments

And a good day to you dear readers!

Your humble blogger is back and more hungry than ever for the fair and proper results that seem to escape our files.

I bring you the case of Payne v. Federal Express, a relatively recent panel decision.

Applicant had entered into a C&R agreement with defendant, presumably with open future medical care, back in 2003.  One of the provisions of this C&R was that the parties’ AME would resolve all medical necessity disputes.

As is to be expected, a dispute arose about a particular recommended course of treatment.  Defendant submitted it to UR and then applicant requested IMR, both of which denied the reasonableness of the RFA (this was a weight loss program).  After running up defendant’s bills with the UR/IMR process, applicant then went to the AME to weigh in on the reasonableness of the treatment.  The AME concurred that the weight loss program was reasonable and necessary.

When applicant sought to set this matter for trial, defendant objected on the basis that the WCAB had no jurisdiction to resolve this issue as it was a dispute over medical care.

The WCJ concurred with defendant – because applicant had appealed the UR determination to IMR, she was now bound by IMR.  The WCAB reversed.  Citing Bertrand, the WCAB concluded that subsequent changes in law do not relieve parties of their respective contractual obligations.  The matter was remanded down to the trial level.

Unfortunately, what the opinion is lacking, much like the opinion in Bertrand, is a discussion of why Labor Code section 4062.2(f) does not control in this situation.  Specifically, the Labor Code holds that “[t]he parties may agree to an [AME] at any time, except as to issues subject to the independent medical review process …”

To your humble blogger, who is not a commissioner or a Court of Appeals Judge, but just a humble blogger, this subsection is a crystal-clear demonstration of legislative intent – only UR/IMR is to address issues of medical necessity.

Let’s take this reasoning to its natural conclusion – if the AME had retired and declined to respond to requests for comment, what would the parties have done?  Are the parties now obligated to find some other AME, or are they bound to the UR/IMR process?  Would the law invalidate any agreement to use a new AME?

Furthermore, if applicant’s position is that UR/IMR does not apply and that the AME should determine all medical necessity questions, by what right does the applicant impose costs on the defendant through the IMR process?  Is this not frivolous?  Should applicant not be ordered to pay back the costs of IMR so brazenly incurred?

The position that applicant is entitled to request IMR and, yet, is not bound by IMR’s determinations seems contradictory and unsustainable.

If a section of the Labor Code can be invalidated by “contracting” around it, by that rationale, could parties not simply contract out of the workers’ compensation system altogether?  The WCAB has shown exactly zero hesitation when the facts and the law support invalidating an independent contractor agreement and finding an employment relationship, regardless of the actual agreement between the parties – why should the WCAB hesitate to invalidate a contract agreement as to addressing future medical care in this case?

The bright side of this is, of course, that there are relatively few of these cases out there.  Accordingly, we can hope to see fewer and fewer of such disputes go south for the defense community in the years to come.

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SB617 Would Prohibit Apportionment to Genetics

September 6th, 2017 No comments

Happy Wednesday, dear readers!

As you might recall, the defense community scored a victory with the case of Rice, wherein the Court of Appeal upheld a QME’s apportionment of applicant’s permanent disability to genetics.  The Court of Appeal declined to disturb the Court of Appeal’s opinions, so that’s that.  It’s settled, dear readers – we can all go home.  Genetics and hereditary factors can be a source of apportionment.

But… what’s this? It looks like some people in the California Legislature aren’t happy that employers will not be responsible for paying benefits for permanent disability not caused by the employment.

Senator Steve Bradford (D-35th District), has introduced Senate Bill No. 617 which would “require that heredity and genetics be excluded as bases for causation for purposes of determining apportionment of permanent disability.”

The bill would essentially overrule the Rice decision, prohibiting apportionment to non-industrial factors if those factors are the products of genetics or heredity.  Previously, Governor Brown vetoed a similar bill that would have prevented apportionment to menopause or child birth, so hopefully we could expect a similar result from the Governor’s mansion should any such bill reach its desk.

Practically speaking, what could possibly be the logic of such a bill?  California’s employers are already laden with burden after burden and insurance in California is among the most expensive in the Union.  It is no stretch of the imagination to claim that California is effectively pricing the labor of Californians out of the market.

Hopefully, SB 617 will join the pantheon of other bad ideas in history’s forgotten pages, rather than becoming California law.  Should California’s legislature ever grant your humble blogger the power to veto its bills, I assure you this will be on the chopping-block.  For now, though, your humble blogger must resign himself to rolling his eyes in disapproval and hoping that those with influence in Sacramento will see this proposed law to its just end.

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Happy Labor Day 2017!

September 4th, 2017 No comments

Hello dear readers!  Today is Labor Day [insert obligatory pun about delivering children here].

Just a friendly reminder, that the Board is closed today.  Also, pursuant to California Rule of Court 1.10, any act that must be performed today is extended to the next working day (tomorrow).

As to the holiday itself, it is intended to honor the contributions workers, and the Labor Movement, have made to America.  Perhaps this weekend (and this day off) will allow us time to reflect on such contributions and the future of the American worker.

Happy Labor Day!


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WCAB: No Authority from WCJ to Issue Gag Order

September 1st, 2017 No comments

Typically, when a person uses the words “gag” and “workers’ compensation” it is to describe a certain amount of disapproval with our beloved system of administering benefits (and inflicting costs).  But, in a significantly rarer use of the term, the WCAB recently reversed a WCJ’s imposition of sanctions when an applicant-hockey player continued to speak to the media about this claim.

WorkCompCentral recently reported that the WCAB reversed a WCJ’s imposition of sanctions against applicant Michael Peluso’s attorney after his client continued to speak to the media regarding his claim.  The WCJ had requested an end to media interviews out of concern of media reports influencing a neurologist set to examine applicant.

Well, the WCAB apparently did not recognize the WCJ’s authority to order or enforce a gag ordered and reversed the imposition of sanctions.

Aside from this particular case, gag orders are often enough contemplated in workers’ compensation cases.  Many employers (and insurers) have rightful concerns that they are locked in battle with a Lernaean Hydra – cut off one of its heads to watch two more regrow in its place.

Defendants are often tempted to settle a case to seal off potential liability and stop leaking litigation funds.  However, when co-workers see their “injured” colleague go home with a big payday, the same employer suddenly has more hydra-heads to deal with, each spitting poison.  “Ugh… yeah… I’m real hurt… when I close my eyes, I can’t see… and, like sometimes, I get tired after work.  So can I have the money now?”

Perhaps defendants would be more willing to settle if the WCAB were empowered to issue and enforce gag orders (particularly requiring applicants not to disclose the sum of their settlement awards)?

Have a good weekend, dear readers!

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WCAB: One Voucher Per Injury

August 30th, 2017 2 comments

Alright dear readers, here’s a question for you – applicant sustains two injuries and they become P&S on the same day.  The injuries are resolved by stipulated award and applicant is not offered a return to work by the employer.  Does the applicant get one voucher or two?

Well, your humble blogger’s answer is, of course:

But, clearly, the law does not agree with your humble blogger’s musings.  Instead, the recent panel decision in the case of Sesena v. Residence Inn by Marriott, held that applicant is entitled to a voucher for each of her injuries – one for the CT to her cervical spine, lumbar spine, thoracic spine, and another in the form of hypertension.

The WCAB reversed the WCJ, finding that applicant was indeed entitled to TWO vouchers rather than one, interpreting Labor Code section 4658.7’s language of “[i]f the injury causes permanent disability” to mean that each permanent-disability-causing injury triggers a separate right to a voucher.

Practically speaking, most vouchers are used, if at all, to get the extra $5,000 from the state fund paid for by employers and insurers, a free laptop, and $500 in cash from the employer.  But, on those rare cases that the full amount is used, the defendant might be out $6,000 per voucher.

What defenses can be made against this argument?  Well, is as voucher due whenever there is permanent disability?  No, of course not – no voucher is due if there is an offer or regular, modified, or alternative work timely made.  (Section 4658.7(b).)

Well, why wouldn’t an employer make an offer of regular, modified, or alternative work?  Most likely because the work restrictions could not be accommodated.  After all, termination for cause or right to work in the United States is no reason not to make the offer.

Well, what happens if the restrictions for one of the injuries includes and/or incorporates the restrictions for the other one?  Why would an employee be entitled to two vouchers for the same work restrictions?

In the case of Mercier v WCAB, a California Supreme Court opinion from 1976, the Court held that “[w]hen all factors of disability attributable to the first injury are included in the factors attributable to the second, there is total overlap.”  Although Mercier had to do with rating permanent disability rather than dealing with vouchers, the idea remains the same: if the preclusions from one injury are included in the preclusions from the other, then there is overlap.  Mercier did not receive permanent disability twice for the same work preclusions, and an applicant should not receive a second voucher for the same work restrictions.

Now, bear in mind, my dear readers, that the panel opinion does not go into great detail as to the work restrictions in the Sesena matter.  However, every effort should be made to avoid liability for a voucher if possible, and the best way to do that is to make an offer of regular, modified, or alternative work.

Your humble blogger hasn’t had occasion to use the Mercier argument at trial yet, but if you try it please let me know how it goes.

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Forklifting Injuries? A thing of the past…

August 28th, 2017 No comments

Forklifts.  Normally, your humble blogger uses the word to pretend he’s doing exercises when he’s really just eating dinner.  But, outside of the world of puns and overindulgence, forklifts (and their less useful cousins, pallet jacks) are incredibly useful but also incredibly dangerous devices for warehouses and their employees.

If you run a search on Lexis or WorkCompCentral, forklift injuries are plenty and varied.  There are cumulative traumas from extended periods climbing in and out of them.  There are trip-and-fall injuries.  There are cases where the forklift fails its human worker and tips or drops something heavy on a co-worker.

One of the remedies to this problem is making tech news – the Seegrid GP8k is an autonomous forklift that can “approach a pallet, lift it, transport it safely, and put it where it needs to go.”

But avoiding the cost of industrial injury isn’t the only benefit – this particular instance of automation comes with fewer wages paid, fewer pieces of merchandise damages, more efficiency in the warehouse.

Your humble blogger submits to his beloved readers that California’s policies, including but not limited to workers’ compensation benefits, continues to make automation attractive.

Now, your humble blogger will occasionally take abuse form the more fiery members of the applicants’ bar and their cheerleaders because of this position.  Do I want injured workers to suffer? To starve?  To do dangerous jobs and bear the risks themselves?

California often deludes itself into thinking that it is playing the role of Robin Hood – lightening the load of those fat-cat employers and insurers and giving the working man a reasonable living.  The reality is that California steadily robs future workers of their jobs.

Certainly, accidents can happen to even the most careful and diligent employees, but workers’ compensation benefits are also provided to workers who are careless, reckless, inebriated, or deliberately trying to play the “blue collar lotto” to get benefits.  Before you start with the defenses of Labor Code section 3600, remember who bears the burden of proof.  Most defense attorneys can tell you about that one case he or she had where the injured worker was high, drunk, or suicidal and the WCAB awarded benefits anyways.

With one rare exception, robots and machines tend not to be suicidal.

Anywho, dear readers, it looks like automation of the workforce continues apace, so the ills of the workers’ compensation system, though frustrating and unfair, might be relatively short-lived.  Are you ready?

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Deported Applicant Allowed to Testify via iPhone

August 23rd, 2017 No comments

Alrighty, dear readers, your humble blogger has a pop quiz for you.

Why do we have live testimony?  Why can’t all witnesses call/Skype/Facetime in to trial or a hearing?

Most of the WCABs venues have some form of wi-fi available, and almost everyone is sporting a smart phone nowadays.

We already saw in the Simmons case that an adjuster was allowed to appear via Skype and in the Alvarez case, an applicant was allowed to testify via Skype at his own trial after being deported to Mexico.

Recently, the WCAB allowed a deported illegal alien applicant to testify at his own trial via a 4-inch iPhone screen.

deported testify

In the case of Vargas v. Becker Construction, a recent panel decision, the WCAB did not disturb the WCJ’s allowing of a deported applicant to testify by iPhone.  Your humble blogger is agreeable to the fact that we should avoid “gotchya” litigation in workers’ compensation matters.  However, if credibility is in question, a WCJ needs to be able to observe applicant testify.  Additionally, the WCJ should be able to have certainty that no one in the room is feeding answers or responses to the witness from behind the iPhone transmitting the testimony.

Practically speaking, this might be addressed by having the injured worker sit in front of floor-to-ceiling mirrors so that the trier of fact can confirm no one else is in the room.  But the small screen of the iPhone presents its own problem – how is one to observe credibility on so small a screen, especially if the rest of the hearing room is to observe it as well?

Personally, if the world finally lost its mind and entrusted your humble blogger with a spot on the bench, I would think a phone is too small a device upon which to observe a witness’s testimony (and determine credibility).

It is not clear what the proper course of action is – do the federal and state constitutions’ guarantees of due process (including the ability to present and cross-examine witnesses) outweigh California’s interest in providing benefits to workers that for one reason or another are not present in the country (or state)?

What do you think, dear readers?  Would defendants be willing to have their adjusters and employer witnesses avoid being dragged in from out-of-state if it meant that an applicant could prosecute his or her case from across the border?  As much as your humble blogger is a fan of technology, somehow testimony over a hand-held iPhone screen doesn’t seem to meet the standard of decorum and substance of an in-person trial.


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IC Defense Fails For Deceased Truck Driver Claim

August 21st, 2017 No comments

And a happy Monday to you, dear readers!

Are you going to watch the eclipse today?  Remember to wear your glasses…

Reform after reform; legislative session after legislative session; trial after trial – the workers’ compensation community has the same issue come up over and over again: employee vs. independent contractor.  And, to date, the controlling case on this matter is Borello, in which the California Supreme Court set out several factors to consider in determining whether the injured worker was an employee or an independent contractor.

Recently, the Court of Appeal denied review of the WCAB’s confirmation that a deceased truck driver was an employee, rather than an independent contractor, in the claim for death benefits brought by his widow.

The case is that of Schnore v. Progress Rail Services.  Therein, applicant’s late husband suffered a fatal cardiac arrhythmia while driving defendant’s truck.  Defendant claimed that the deceased was an independent contractor rather than an employee, so no liability was to be had.

By contrast, applicant claimed her husband was an employee and was entitled to workers’ compensation benefits.  At trial, the WCJ found the deceased to have been an employee, noting in particular that because defendant set the points at which the drivers pick up and drop off the freight, there is sufficient control to suggest employment.  The WCJ also weighed the fact that the trailer pulled by the truck driven by the deceased was specialized for the cargo (wheels) which suggested specialization of instrumentalities favoring employment.

The WCAB and the COA both declined to disturb the WCJ’s ruling.

Just a thought about this – it seems to be getting harder and harder to prove independent contractor status.  The longer the relationship, the greater the extent of interaction between the parties, the more likely the WCAB will be to find the relationship one of employment rather than independent contractor status.

For that reason, parties should be prepared for the possibility that the independent contractor defense will fail.  Although this may be a valid reason to deny the claim initially, a thorough investigation should be made and every effort should be extended to defend and mitigate the claim itself.

In this case, it appears the medical-legal process found industrial causation for the worker’s death.  Accordingly, the independent contractor defense is a bit of a longshot in California.

On the bright side, there’s always the possibility of settlement…

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COA: One Possible Cause does NOT Mean One of the Causes

July 26th, 2017 No comments

Alright, dear readers – it’s Wednesday.  You’ve made it this far, let’s keep going!

Your humble blogger does not like to sugar-coat reality.  I’ve explained to my children repeatedly, with a detailed and persuasive slide-show, that there is no Santa Clause, that their father likely has a favorite child (although this position is always in flux), and, despite the occasional flare of reason or justice, California Workers’ Compensation is where businesses go to be fleeced and devoured.

So, it is with great reluctance, that I bring you yet another story of reason and the defense community ultimately prevailing in yet another unpublished decision coming from the Court of Appeal.

The case is that of County of Sacramento v. WCAB, McCartney.  The facts are relatively simple: applicant, a peace officer, developed a skin condition which he attributed to his time in the sun on a motorcycle as a deputy sheriff.  The condition, actinic keratosis, may or may not be a precursor to skin cancer.

The QME, a dermatologist, had found that it was not more likely than not that applicant’s time in the sun as a deputy sheriff was the cause of the actinic keratosis.  Applicant has spent time in southern California as a surfer, and also spent his off-work time engaged in out-door activities, exercise, and golf.  The QME advised that there was insufficient factual and medical evidence to support a conclusion that it was on-the-job sun exposure that caused the condition.  The QME also acknowledged that some keratosis eventually become skin cancer, but applicant did not have skin cancer as yet.

When pressed by applicant’s counsel at deposition, the QME responded that the medical literature simply did not establish which of the many factors (recreational sun-time; pre-work sun-time; at-work sun-time; aging, pale skin, immune system) was the tipping point.  It wasn’t that work was a small contributor, it was that there was no way of knowing which of the many factor, if any, were the cause of his condition.

The result of the trial was a finding that there was no scientific basis upon which to conclude that the industrial exposure caused the condition.  So, applicant escalated matters to the WCAB, which reversed!  Citing South Coast Framing, the WCAB found that the QME had found that the on-the-job sun exposure contributed to the condition, but could not conclude the extent of the contribution.

However, the County of Sacramento, having caught the scent of a “take nothing,” was not willing to so easily give up the chase.

Eventually, the case did land on the desk of the Court of Appeal, which offered a different interpretation of the record, and provided a key form of distinguishing the South Coast Framing opinion.  In South Coast Framing, as the Court of Appeal explained, applicant was taking three drugs, one for an industrial condition, which the QME in that case concluded had a 0.01% – 20% causation.  By contrast, in the instant case, the QME concluded that there were many possible causes of the condition, and one of them was industrial.

My favorite line from the (sadly) unpublished opinion?  “The QME never acknowledged that there was a causative role of unknown degree arising out of [applicant’s] employment.  Rather, she took great pains to explain (repeatedly) that it was not possible to attribute the cause of [applicant’s] condition to any particular period of exposure to the sun, and therefore it was nothing more than speculation to identify the work-related exposure as a contributing cause.  Just because the effects of sun exposure are cumulative does not mean [applicant could not have reached a toxic dose before coming to work for the county…” (emphasis in original).

Though severely limited in its application, the McCartney opinion does give the defense community a few things to work with.  First off, there’s a clear distinction between the facts in South Coast Framing, which provided a plethora of causes of which industrial was a small amount, but sufficient to make the claim compensable.

But here, where there are many possible causes, applicant bears the burden of proving that, more likely than not, the industrial exposure is the cause, rather than one of many possible causes.

Additionally, unlike a dispute over some small amount of medical treatment, it might actually be worthwhile to take this issue up to the Court of Appeal on other cases.  Even if your case ultimately results in an unpublished decision, this opinion reflects at least some level of receptive disposition on the part of the Court of Appeal for such a theory.  The difference between industrial and non-industrial can be a vast fortune.

Alright, dear readers, back to work!


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COA (again) Holds That IMR Need Not Be Timely to be Valid

July 24th, 2017 No comments

Happy Monday, dear readers!

Your humble blogger knows full well that he is, far too often, charged with bringing bad news to his beloved workers’ compensation community.  Well, remember, dear readers, that even the crocodile shouldn’t be blamed for the shade in the swamp.

With that in mind, I have some good though belated news to report to you.  Sometimes, confirmation of what we all knew can be just as pleasant, even if not surprising.  The Court of Appeal, in an unpublished decision, ruled that IMR need not be timely to be valid.  The case, of course, is Baker v. WCAB/Sierra Pacific Fleet Services, and, though it is unpublished, it is still of considerable benefit to the defense community.

The facts are pretty simple – applicant sustained an admitted injury and sought medical treatment.  The medical treatment request went through UR, which recommended against certifying the request.  The appeal to IMR followed and, with IMR upholding the UR denial, applicant challenged IMR’s determination because it was not made within 30 days of the appeal.

The WCJ, WCAB, and then the Court of Appeal all agreed that, as the 30 day timeline was directory and not mandatory, so the IMR stood.

This isn’t anything new, of course.  The Court of Appeal in Ramirez held to the same conclusion.

So what’s so great about an unpublished case?  After all, we can’t cite an unpublished case, right?

Well, we’ve had Stevens and Margaris  tell us that IMR is constitutional and speculate that a timely IMR determination is not necessary to be binding.  We’ve had Ramirez and now Baker tell us for certain that IMR need not be timely to be valid and binding.

In other words, the Courts of Appeal have sent a pretty clear message to every WCJ and WCAB commissioner in the land of, as one WCJ would say “a preview of coming attractions.”

Let’s look at big picture, for a moment – the disputed medical treatment in Baker? Pennsaid and Norco.  Drugs.  We’re not talking a whole lot of money in the grand scheme of things.  In fact, Mr. Baker’s attorney might have had more luck paying for these drugs out of pocket rather than pouring in the time and money to go to the Court of Appeal.  But it wasn’t about the Norco or the Pennsaid – it was about undermining IMR.

IMR is a wonderful thing – applicant attorneys used to be able to over-inflate future medical valuation by threatening to take every UR determination to the QME or AME, and run up the bill for the defense.  No longer – now you’re looking at a few hundred dollars every year on IMR – hardly worth the applicant attorney’s effort.

So far, so good, dear readers – have a great weekend!


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