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…

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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?).

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Need an Uber Lyft? Self-Driver Cars Coming Closer and Closer…

March 18th, 2015 No comments

One day, dear readers, your humble blogger’s grandchildren and great-grandchildren shall gather by his feet near the fire, and ask, in modest and respectful tones, when and how the modern era began.  And, nodding sagely to his beloved family members, your humble blogger will answer: March 22, 2015.

That is the day, dear readers, when a little-known company named Delphi plans to set course from the Golden Gate Bridge to New York in a driverless car.  As your humble blogger has blogged before, this is not the end of our beginnings, but the beginnings of the end of life as we know it.

Think about that, dear readers – there is a real-life company planning on having a driverless car go from the West Coast to the East.  That’s not exactly a “test” drive on the private course of the Google campus, or a “controlled” jaunt for three miles of free-way under close CHP supervision.  This is the real deal – if a car can travel the length of a country, safely, efficiently, and without incident, it can probably do the job of every single professional driver in the country, from delivery trucks to taxi-cabs.

Now, if you’re in San Francisco, or several other places where the cab-industry is being turned on its head by the youngins’ and their “apps”, you’re probably seeing the modern-day friction between the lefty-San Fran with its dedication to unions and government-monopoly licensing as played out in the world of the Taxi-Cab drivers, and the new “hip,” “cool,” and “dope” trend of the Ubers and the Lyfts – taxi-drivers without many of the things people don’t like about taxi-drivers: lower rates, cleaner cars, ample availability and options, and no need to carry cash – the trip is planned, billed to the user’s credit card, and the transaction completed all over the phone.

But, while all of our friends, from the outspoken activists on Facebook, to the guy on the bus who doesn’t understand that headphones and a book mean you don’t want to talk to a stranger on the bus (Yes, “Jeff”, I’m talking about you!) argue about whether an Uber driver is an employee or an independent contractor, or whether Lyft drivers should have to get a medallion from the city, there is a host of car manufacturers out there, from Google to Volvo, who are manufacturing self-driven cars, which will likely lead to the elimination of a substantial portion of the driver workforce.

DOG IN ENGINE

Unless you’ve been binging on “I, Robot” you’re not going to be very motivated to demand workers’ compensation coverage for self-driven cars (or trucks, or busses) – just auto and business liability insurance.

Most scientists agree, once the driverless cars are forced to drive in my beloved quasi-home-town of San Francisco, with the one-way streets and the hills and the pedestrians who think the red hand of a cross-walk is meant to be an encouragement, they will experience a computerized form of “rage,” which will ultimately lead to sentience and, roughly, the scenarios depicted in Terminator 1 and 2.

When that happens, dear readers, your humble blogger will be ready to defend civilization, much as he does now.

To sum up – the driverless cars are a coming, and it looks like they’re coming quicker and safer than anything you have heading your way driven by a human.  I think it’s time we started making legislation, litigation, and business plans to suit.

Please note, dear readers, that this blog post should not be interpreted to suggest that there will not be, at some point, a zombie apocalypse or an alien invasion apocalypse, but just that the rise-of-the-machines one seems to be the best bet for the tinfoil-hat crowd at the moment.

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WCAB: No Right to Unilaterally Take Credit for TTD Overpayment

March 16th, 2015 No comments

I want you to envision two scenarios, dear readers.

In the first scenario, Timmy gets $500 per week in temporary disability benefits, paid to him every two weeks by his employer/insurer.  Six weeks in, he has received $3,000.

In the second scenario, Jimmy is entitled to temporary disability benefits in the amount of $500 per week, paid every two weeks, but the employer or insurer, due to a clerical error, actually pays him $750 per week.  In just four weeks, he’s received $3,000, and his employer catches the error.  So, the employer tells Jimmy that he’s not getting temporary disability benefits for the next two weeks, because he should only have $2,000 at this point, and $3,000 by the end of week 6, and he’s got an extra $1,000.  Problem?  Yes, actually, because credit for temporary disability benefits are subject to the WCJ’s discretion, rather than a matter of right.

The proper course of action, to avoid penalties and sanctions, would be to continue paying, at the correct rate of $500 per week, and file a petition for credit for the extra $1,000.

Consider the case of Crocker v. Warner Bros. Studios, Inc., a recent writ denied case.  After the case in chief was resolved, applicant claimed he was underpaid the amount awarded by the WCJ.  The issue of compliance with the WCJ’s Findings and Award proceeded to trial, and the money in dispute, some $17,356.34, was claimed paid by defendant, because the stipulations as to the moneys previously paid reflected that there was a temporary disability benefit overpayment in the amount of $17,356.34.

By contrast, applicant argued that, as there was no specific finding of right to credit against permanent disability benefits by the WCJ, defendant was not entitled to credit for the temporary disability benefit overpayment.

The WCJ found, based on “principles of equity and the social policy of encouraging a defendant to make payments timely without fear of having to pay twice” (from the Lexis summary), found that the overpayment of the temporary disability benefits applied as credit, and did not require the defendant to pay the $17,000 a second time.

Folks – there are a few other issues in this case, but let’s not get distracted, as we’re focusing on the TTD overpayment credit issue!

Applicant sought reconsideration, arguing that the WCJ cannot now amend his original award to include credit for overpayment of temporary disability benefits.

The WCAB, in a split panel decision, held that defendant improperly took credit for overpayment of temporary disability, reasoning that credit was not allowed at the original award, and that award is now final.  The majority went so far as to say “Had we been awarding benefits, we would have allowed the credit.”

But what’s the problem with this whole approach?  Why can’t defendants just pay and then seek credit?  Well, for one thing, credit is not always awarded, which results in the defendant paying out more than it should for the same claim.  Furthermore, what good is even a million dollars in temporary disability credit for overpayment, if the end result is 0% PD, or less PD than you have credit against?

Finally, the cost of a file is not merely its itemized benefits, but the administration of an open file.  Continued reserves, the time and energy of an adjuster and all the adjuster’s vendors, from the defense attorney to UR – all these things continue to cost money.  So, even if you were to receive some credit for TTD overpayment, it might remain a sticking point in reaching a C&R, with the end result of a file still open for, at the least, future medical treatment purposes.

Unfortunately, this is a doctrine in workers’ compensation law that is deeply ingrained and, in your humble blogger’s opinion, deeply flawed.  In law school, we all learn that the word “fungible” means anything that can be easily exchanged or replaced.  Corn is fungible.  A particular piece of land is not.  Bolts of cloth are fungible.  An antique violin is not.  But, the most perfect example of fungible is money.  No matter how much money one loses, whether directly, or through interest, or through lost opportunity, that person can be made whole by giving that person money.  MONEY IS MONEY.

Not so in workers’ compensation.  In workers’ comp, money isn’t money, because TTD overpayments are not automatically credited against permanent disability benefits.  The fact that the injured worker is whole, and lost no amount of money, is still subject to review by the WCJ, and may not guarantee the injured worker remains whole (rather than whole and then some), as there is typically a conversation regarding the “species” of benefits, and a money donkey is not the same thing as a money mule.

So, remember folks, the issue of credit must affirmatively be brought up, otherwise, a defendant risks the Scylla and Charybdis of penalties for unilaterally taking credit, or waiving the issue following trial.  So draft your petition for credit, keep paying money out, and have a sip of scotch as you think fondly of your humble blogger.

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SB-563: Employers to Share UR Financial Arrangements

March 11th, 2015 No comments

Can you believe it, dear readers?  March is slipping away – just the other day I was admiring my beloved Mother’s Thanksgiving turkey and the relative restraint of blood-thirsty shoppers on “Black Friday.”  Now, in the blink of your humble blogger’s eye, here we are in mid-March.

Of course, not all things that greet us as time goes on include warmer weather.  In fact, Senate Bill 563, is just one cloud in what appears to be a veritable storm of anti-Business weather in California’s climate.

Introduced by Senator Richard Pan, SB 563 would force employers and insurers to disclose the financial arrangements around the UR process, specifically, “[e]ach employer, insurer, or other entity that is subject to Section 4610 shall disclose the payment methodology for each person who is involved in the process of reviewing, approving, modifying, delaying, or denying requests by physicians for authorization … for the provision of medical treatment services to injured workers…”

In other words, when employees, physicians, and the public request this information, it has to be made available to them.

The legislation does not provide for a timeline, or penalties for failure to comply, but, presumably, that can be fleshed out during the legislative process or through regulation.

Your humble blogger, however, is not a big fan of SB 563.  Forcing employers and insurers to reveal the arrangements made with their UR vendors is not going to do anyone much good.  What is the relevance of the information to determining necessity of medical treatment?  We used to have UR determinations go to panel QMEs or AMEs, and now, presumably, all disputes are resolved through IMR (at least for now – let’s watch the Courts on that one).

In some cases, the parties have even stipulated to skip IMR and have medical necessary disputes resolved by AME, in clear violation of Labor Code section 4062.2(f).

So, either the medical basis for denying the medical treatment is sound, or it isn’t – whether the physician who wrote the report was paid $10,000 or $10 for the report has no bearing on the medical reasoning.  The remedy is there as well: IMR for now, possibly something else once the Supreme Court weighs in.

What this does, instead, is increase the cost of doing business for the employers.  The cost of compliance in the form of providing information, upon “request” by anyone and everyone.  The cost of negotiating contracts with vendors who will now negotiate from the position of having their rates a subject for public knowledge.

Hopefully, this bill will face the same fate as your humble blogger’s proposed hamster-powered message delivery system (it was a really elaborate plan, actually – we would dress the hamsters up in little suits, and give them little briefcases to deliver messages, and would train them to quickly use a series of tubes to be installed throughout the city), and never be implemented.  Before you legislate, think of the hamsters!

hamster thumbs up

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Is There TTD After Retirement? As Always – It Depends

March 9th, 2015 No comments

Hello, dear readers!  A fresh new week and a fresh new blog post… what could be better?

I bring to your attention today the matter of Moore v. Pasadena Area Community College District, a writ-denied case in which applicant sought temporary total disability benefits for a period of time after she retired.

The claim of Ms. Moore involved both orthopedic and internal/psyche injuries, but as the compensability of the internal/psyche was in dispute, the parties proceeded to trial on the issue of whether Ms. Moore, who resigned her employment in May of 2011, but continued working until some time in August of 2011, was entitled to temporary total disability benefits from July of 2011 to August of 2012, the date she was made permanent and stationary by her primary treating physician.

The WCJ had awarded temporary total disability benefits, but the WCAB reversed, and the decision hinged on the wording of the retirement letter and the subsequent deposition testimony.

The substance of the resignation letter appeared to be related to applicant’s stress and the allegedly hostile work environment that had been building up.  The WCAB relied on the case of Gonzalez v. WCAB (1998), wherein the Court of Appeal noted that the reason for the retirement is paramount – if the retirement is because of the injury, then there is potential for compensable periods of temporary disability.  However, if the retirement reflects a worker’s “willingness to work,” or rather, lack thereof… well, I’ll let Mr. Wonka communicate the result:

In this case, applicant has two claims: orthopedic and psyche.  The retirement letter and subsequent deposition testimony reflects that orthopedic injuries were not the reason for her retirement, especially since she continued working for roughly three months post the retirement letter.  By contrast, the psyche claim might fit in with the resignation letter, but compensability is still in dispute there, and the that issue was not set for trial.

Now, hypothetically speaking, let’s say an applicant retires, and cites the industrial injury as the reason is there anything the employer can do to avoid tacking temporary disability benefits to the applicant’s pension?  If the employer can genuinely accommodate the work restrictions of the injured worker, even a retired injured worker, one would think that service of a Notice of Offer of Regular/Modified/Alternative work should do the trick.  And, on top of that, the employer might be in a position to not provide the actual work, but avoid TTD liability by showing it could have provided the work if the injured worker had not retired/resigned.

What do you think, dear readers?  Should the motivation for the retirement matter as to TTD benefits?  Or should retirement cut off all TTD, regardless of reason?  Help yourself to an Everlasting Gobstopper on your way out…

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Split WCAB Panel: No Obligation to Prepay Medical Treatment

March 4th, 2015 No comments

Hello, dear readers!

Your humble blogger recently stumbled upon an excellent article written by Robert G. Rassp, Esq. on the split plane decision of Murphy v. Petsmart.  To give a quick rundown of the facts, applicant’s treating oral surgeon requested authorization for pre-authorization of oral surgery and implant placement.

He further requested pre-payment for the procedure in the amount of $25,600.00, in accordance with his office’s practice.

Following this July 5, 2012 request, UR authorized surgery on July 19, 2012.   Then… nothing.  The immovable object of the oral surgeon’s demand to be paid for the surgery in advance met with the unstoppable force of the defendant’s policy of paying for medical treatment within 45 days of the services being rendered.

This standstill continued until October 15, 2012, when applicant filed a declaration of readiness to proceed (apparently, not to an expedited hearing), and the parties repeatedly tried to obtain some middle ground as between the oral surgeon and the defendant, until defendant ultimately issued pre-payment in the amount of $25,510 on February 4, 2013.

However, applicant still pursued penalties for the delay in payment, pursuant to Labor Code section 5814, seeking a 25% penalty on the $25,510 ($6,377.50) for delaying the prepayment.

The WCJ imposed sanctions for delaying pre-payment, but, in a split panel, the WCAB granted reconsideration, reasoning that, under Labor Code section 4603.2, the employer has 45 days to issue payment after services have been provided.  (“Payment shall be made by the employer with an explanation of review pursuant to Section 4603.3 within 45 days after receipt of each separate, itemization of medical services provided, together with any required reports and any written authorization for services that may have been received by the physician.”)

The WCAB majority held that there’s no unreasonable delay of providing benefits, including medical treatment, because defendant had no obligation to pre-pay.

Here are your humble blogger’s humblest of thoughts: this case was really a no-win situation.  Applicant was delayed the medical treatment to which she was entitled, and which defendant ultimately provided.  Defendant ended up litigating this issue and taking up to the WCAB, but even a victory isn’t as good as not having been at risk in the first place (recall, dear readers, applicant’s standpoint persuaded one WCJ and one Commissioner while defendant’s had persuaded two Commissioners – this was close.)

So what should have been done instead?

Let me preface this part by saying that, in your humble blogger’s completely made-up scenario, the defense attorney came on the scene down the road, when this issue was being set for hearing, and the adjuster, like most adjusters, was walled into his or her work area by stacks of files and to-do lists enough to make anyone forget their name.

If your humble blogger had unlimited time and resources, and was in the situation of the adjuster and the defense attorneys in this case (that first *IF* is crucial, by the way), I would suggest meeting this issue “head on”: as soon as a treatment provided states a demand for pre-payment, write a letter in response saying that it’s not going to happen and why – because it’s not done in workers’ comp and there’s no obligation to start pre-paying for treatment.

In this case, the oral surgeon’s position was that, while he could take post-service payment for almost everything, the implants presented too high a cost to advance and them await reimbursement.  It might not be unreasonable to agree to pre-pay at least some of the implant costs to get the treatment going.

The problem in this case was that this impasse sat unresolved from mid-July to early February.

Now, if Governor Brown knocked on my door right now, I would probably be very alarmed (given that this post is being written at night).  But, assuming that this was an official visit and I was to be named a Commissioner (hint, hint, Jerry) I would agree with the majority – this is not a situation where there was any clear authority for forcing a pre-payment.

And, on top of that, if defendant is in any way to blame for the delays, applicant is equally to blame – an expedited hearing a month after UR had authorized the surgery but the surgery had not yet been scheduled would have cleared this up quickly, one way or another.

The lesson here, I submit to you, is to take the extra step, so you don’t have to run the extra mile.

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SB281 – Pay WCAB Commissioners $12k/year

March 2nd, 2015 No comments

Hello, dear readers!

As you well know, the Workers’ Compensation Appeals Board currently lists five commissioners and two deputy commissioners.  Now, those seven, even with all the hard work and diligence in the world, are way behind in issuing opinions, because seven people can only do so many record reviews, draft opinions, and decisions in any given amount of time.  Your humble blogger is regularly swamped himself, but nowhere near the piles of work the commissioners face on a regular, daily basis.

Some rumors, whispered into your humble blogger’s journalistic ear and occasionally even screamed from the mountaintops by everyone in the world, is that panel disputes clog up the system more than any others. So, think twice before litigating the petty panel disputes and ruining things for the rest of us!

Anywho, the Legislature is well aware of the problem, and is hurrying with the speed of a snail on sandpaper to rescue us all.

Senate Bill 281, recently introduced by Senator Jeff Stone, would reduce WCAB commissioners’ salaries to $12,000 per year.  Now, your humble blogger has considerable doubt that the proposed “section 11569.5” will ever be made law.  However, with the current WCAB commissioners already responding to the name “Sisyphus” , can you imagine the motivational boost they can experience when a State Senator proposes that their contributions to California be valued at $12,000?

Can you imagine how excited new commissioners will be to throw their names in the proverbial hats, knowing that $12,000 waited to reward their labors?

Your humble blogger has had no contact with Senator Stone, but I would respectfully submit that whatever imagined savings such a law would net the State in unspent salaries, the damage that will be done by making a barely-floating system into a shipwreck will cost the state more.  Workers’ compensation is expensive in the state at the outset.  However, the final expense to employers for workers’ compensation often enough is a product of the inefficiency of the system.

Making it impossible to resolve disputes by gutting the WCAB commissioners is not going to make this system run any smoother.  If Senator Stone would like ideas on improving Workers’ Compensation in California, your humble blogger has a few ideas, as does every member of our community.  This is certainly NOT the way to go.

Some ideas, off the top of my head, include:

  1. Providing a stipend for workers’ compensation defense bloggers;
  2. Making WC Defense blogs mandatory reading;
  3. Declaring access to coffee a fundamental human right;

There’s more, believe me, but it’s Monday and we’ve all got to get to work!

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Unexpectedly… a Bit More on “Stolen” Checks

February 25th, 2015 No comments

Ok, dear readers… it’s been an interesting few days.  Some of you may recall my Monday post about the difficulties more and more of us are facing in this crazy world of workers’ compensation: the “stolen” check.  Naively, I asked, at the end of my post, what my beloved readers thought about this issue, and what defendants can do to make sure they don’t get taken in by the cheats and liars out there that not only receive their checks and cash them, but cast doubt on those workers truly victimized by stolen disability payments.

Well, the responses were a bit… surprising.  Although several of the comments were meritorious and thoughtful, others were… not so pleasant.  Accordingly, I’ve declined to publish the comments (sorry folks – no colorful language today), but did want to relate the highlights.

One thoughtful reader pointed out that one of the problems is the fact that the allegedly injured worker can cash these checks at check cashing places.  Once cashed, the “stop payment” is not particularly effective, and the cash-checking place now has an incentive to affirm that the check was cashed by the appropriate person.

One commenter suggested putting language on checks requiring a photo ID to be cashed.  However, the check-cashing services do not make money by turning down checks, so why would such services feel bound by a note on a check?

Another reader related that workers’ compensation defendants could easily solve all the world’s ills (at least with regard to stolen checks) by offering direct deposit.  This commenter even suggested that the defense community brings this ill upon itself by hoping that most check’s won’t get cashed.

Now, Labor Code section 4651 does seem to provide the opportunity for employers and insurers to make disability benefits payable through direct deposit.   However, this approach brings its own problems.  If you’re dealing with the type of individual that intends to defraud the insurer or employer by cashing checks and then claiming them lost, why would they consent to direct deposit?

After all, section 4651 provides that “[n]othing in this section shall prohibit an employer from depositing the disability indemnity payment in an account in any bank, savings and loan associations or credit union of the employee’s choice in this state, provided the employee has voluntarily authorized the deposit.”  (Emphasis belongs exclusively to your humble blogger).  All the man with intent to defraud in his heart need do is refuse to authorize the deposit, and we’re back to square one.

Again, dear readers, our problem is not with the honest worker who makes a deal sticks to it, because no security measures are needed there.  Instead, our problem is with the fraud, the thief, the cheater who intends to steal money: why would such a villain agree to make his wicked efforts harder to complete?

One of your humble blogger’s “anarcho-capitalist” mentioned something about Bit-Coin, and, of course, my communist friend suggested an agrarian community where, before long, there would be no need for workers’ compensation because we’d all be unemployed.

Perhaps at the next round of legislative reforms, we can include a Labor Code section allowing some alternative payment delivery options, such as delivery of benefits checks at the employment location, requiring applicants to open a bank account or provide one to have benefits deposited there, or some other clever idea yet to come.

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The Growing Problem of the “Stolen” Check

February 23rd, 2015 No comments

Hello, dear readers!

So, another weekend has come and gone.  We laughed, we cried, we sipped our scotch and swallowed our pride… and that was just on Friday night.

Imagine my shock, my dismay, my absolute alcohol-fuelled horror when I curled up affectionately with the latest workers’ compensation cases, only to discover a growing problem defendants are facing when things get litigated – the “stolen” check.

What do you do when you or your agent has looked the applicant, or the applicant’s attorney, square in the eye, agreed on a number, and shaken hands… you have a deal.  We give you the money, your claim goes away, and all is right with the world.

After that, we all pat ourselves on the back – the check gets issued, one to applicant’s counsel and one to applicant, and another file is closed… off to another adventure!  Or not…

You see, some injured workers have their checks stolen, their signatures forged.  But some injured workers get their checks, cash their checks, and then just say that they didn’t get them.

When the matter comes before a WCJ, the WCJ, being human, can only do so good a job of deciding if the injured worker is to be believed.  Sometimes the injured worker is telling the truth.  Sometimes the injured worker is lying.  Sometimes the WCJ gets it right.  Sometimes the WCJ gets it wrong.  We’re all only human, after all.

In the matter of Patino v. Aramark, a 2015 writ denied case, applicant claimed that a portion of her permanent disability advances were stolen, her signature was forged, and the checks were cashed without her knowledge.  The defendant made the argument that by mailing them to the address listed by applicant, its obligation to provide payment was fulfilled.

When the matter proceeded to trial, the WCJ found that applicant testified credibly to not having received or cashed the checks.  The WCAB denied reconsideration without comment, and the WCAB denied review.

Most of the time, payments are mailed, and received, and that’s the end of it.  But what can defendants do to avoid the delay and uncertainty of these situations?  How can we avoid putting Workers’ Compensation Judges in the difficult position of trying to decide what did and did not happen?

Your humble blogger has seen C&Rs drafted and approved that included language allowing defendants to hand-deliver settlement payment, and requiring photo-identification for delivery.  After all, how hard is it to take a picture of photo ID before you hand over the check?

For the defense side, however, that’s an added expense to hundreds if not thousands of files each year.  That means less money in the settlement pool, or higher reserves and rates for employers, meaning higher prices for consumers… your humble blogger submits that each workers’ compensation defendant might run the numbers and weigh the likelihood of a claim of no delivery against the cost of a courier on all or most of its files.

While this may work for a huge settlement check, it’s practically impossible to do this every two weeks for temporary disability benefits or permanent disability advances.

What do you think, dear readers, is it worth it?  Outside of moving one’s business outside of California, what are you supposed to do to make sure you don’t end up paying your settlement amount twice?

For further reading, don’t forget to review this blog post in 2012 on the same topics…

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