Happy (Early) Thanksgiving 2015!

November 25th, 2015 No comments

Hello, dear readers!

Your humble blogger wishes to send you an early but heartfelt wish for a Happy Thanksgiving!

Please be safe out there and, should you participate in the ritual human sacrifice known as “Black Friday Shopping” please remember that no amount of money is worth trampling over someone (or being trampled over).


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Off-Duty Dirt-Bike Riding Injury Compensable

November 23rd, 2015 No comments

Happy Monday, dear readers!

Are you gearing up for the Big Turkey day feast?  Well, while you’re dreaming of mashed potatoes and gravy, allow your humble blogger to whet your appetite with this humblest of posts.

Applicant Soto, a Richmond Police Officer, sustained an injury while riding his dirt bike.  Officer Soto, just by coincidence, is on the actual dirk bike unit of the Richmond PD.  So, when he filed a claim, the City denied it on the basis that recreational dirt-bike riding falls outside the scope of employment, to which applicant responded that off-duty practice in furtherance of on-duty capacity is within the scope of employment…

Applicant and his fellow dirt-bike-crime-fighters testified that regular bike riding helped them keep their skills sharp and their abilities decent.

The matter proceeded to trial, and the WCJ applied a two-pronged test: did applicant subjectively believe that he needed to engage in off-duty dirt-biking; and, was this subjective belief objectively reasonable?

The answer to both of these was found in the affirmative by the WCJ, and the WCAB adopted and incorporated the WCJ’s opinions into its decision.

Labor Code section 3600(a)(9) provides a total defense to “voluntary participation in any off-duty recreational, social, or athletic activity not constituting part of the employee’s work-related duties, except where these activities are a reasonable expectancy of, or are expressly or impliedly required by, the employment.”

So, the question always falls to what was reasonably expected as part of the job duties.  We saw this issue come up in the Simon panel decision, where an off-duty police officer slipped while hiking.  There, the WCAB held that the claim was not compensable because the employer had provided a list of activities which were approved of, and that particular trail where Mr. Simon was injured was not part of this plan.

Based on the information relayed in the panel opinion in Soto, after the first two weeks on the dirt-bike unit, the police officers were pretty much left on their own.  Perhaps what may have benefited the City of Richmond would have been a detailed plan of exactly how the dirt-bike unit is to keep its skills on point.

Now, dear readers, your humble blogger has been watching and re-watching Mad Men, hoping against hope that therein lies the answer of how to tie drinking scotch into the reasonable duties of your humble blogger’s field of practice.  Any suggestions?

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Yelling at Employee NOT Good Faith Personnel Action

November 20th, 2015 No comments

Happy Friday, dear readers!

You know what? No one likes to get yelled at.  So, it comes as no surprise that you can only stretch the “good-faith personnel action” of Labor Code Section 3208.3(h) so far before you come into the compensable psyche claim territory.

Submitted, for the consideration of this humble blogger’s beloved readers, the case of Mahmouid v. Quest Diagnostic, a case recently denied review by the Court of Appeal.

Applicant worked for Quest for about 14 years as a laboratory scientist, but claimed to have sustained a CT to her heart, psyche, and sleep through June of 2013.  On a day in June, 2013, applicant got mixed signals – a lead laboratory tech told her to work at one station, and another lead tech told her to work at another.  When the general supervisor arrived later that day, he approached applicant and loudly told her that she should have followed the directions of the first lead, and threatened to “kick her out” for arguing with him.

Applicant then went to the HR department and complained that she wasn’t feeling well because of the general supervisor’s actions.

Obviously this claim is fake, right?  Yeah, not so much.

The folks at HR called for an ambulance and applicant was taken to the hospital and admitted for a heart attack!  Both the psyche QME and the internal medicine QME found applicant’s resulting heart attack, psyche claim, and depression to be industrially caused.

Defendant argued that the lab supervisors conversation with the applicant was a good-faith personnel action, in that applicant was directed to follow the instructions of a particular lead technician, and the threat in the conversation, namely the threat of termination of employment, was an appropriate disciplinary measure.

The WCJ found the testimony of the injured worker more credible, and reasoned that the raised tone and confrontational nature of the conversation crossed the line from good-faith corrective action on the part of a supervisor, into a “verbal attack.”

Now, as much as your humble blogger loves hanging out in laboratories (say it with me now: La-Bore-ah-Torries!) I wasn’t there when all of this supposedly happened.  So I can’t really tell you whether the applicant is an incredibly convincing but insidiously dishonest person, or whether the supervisor really did fly off the handle like I did the last time my computer asked me to upgrade to Windows 10 in the middle of a deposition…

But perhaps this is a good reminder of us all… we should strive, especially in the work place, to keep calm and professional tones.

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Hearing Rep Accused of Cashing Dead Client’s Settlement Check

November 16th, 2015 No comments

Hello, dear readers!

Do you ever read a fact-pattern, squint at the text, and go, really?  I suppose it would look something like this:

what am I reading meme

Well, that was your humble blogger’s reaction when he read the facts of this story.  Apparently, a workers’ compensation hearing representative down south allegedly decided that dead men need no settlement proceeds.  He stands accused of negotiating a settlement agreement with SCIF after his client had proverbially kicked the proverbial bucket, then forged his signature and had the settlement proceeds sent to his interpreter friend to be deposited (and presumably split).

Talk about dead men’s shoes.

Of course, your humble blogger has no idea of these charges will be sustained or if this is all just a misunderstanding.

But, let’s just say, hypothetically, these things were to actually happen… what the heck are defendants supposed to do?  Are we supposed to require notary public stamps on all C&Rs not personally witnessed by defense attorneys?

Another habit your humble blogger has observed at the WCAB is that an already-signed C&R will be passed around for “witness” signatures – what exactly are we witnesses to when we didn’t see anyone sign the C&R, let alone request photo ID of the person singing the C&R?

In any case, your humble blogger hopes truth and justice prevail as with this particular case, but perhaps this should remind us all to be a bit more wary of the settlement papers we process on a daily basis.

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It’s a Deliver-Driver-eat-Online-Retailer Jungle Out There!

November 13th, 2015 4 comments

Happy Friday, dear readers!

This past weekend, for the first time, your humble blogger used a delivery service through his smartphone app.  The company in question is not sponsoring this humblest of blogs, so let’s just call the app “Jungle Meow.”  After making a selection, I paid through my phone and, but two hours later, my doorbell rang and the items I ordered were hand delivered.  One step short of Star Trek’s replicator technology…

I thought to myself, “a humble blogger could get used to this.”  I thought wrong.

It appears that the good folks performing these deliveries for Jungle Meow aren’t happy abound being classified as independent contractors, and are demanding all the rights and privileges of employees.

This is a steadily growing pattern – Uber, Lyft, and a whole bunch of other similar businesses are being sued left and right over alleged misclassification of workers as independent contractors rather than employees.  Your humble blogger keeps looking, but can’t seem to find Plaintiff’s Exhibit A – the gun that was held to the heads of workers forcing them to agree to these terms.

Among the things being claimed by the plaintiffs is that (1) Jungle Meow set their shifts; (2) Jungle Meow made the drivers wear Jungle Meow shirts and hats during deliveries; and (3) tracked the drivers, providing suggested routes and warning them that they are running late.

Jungle Meow apparently hired a courier company, Scoobeez Inc., to be the coordinator, so that there is at least one layer of entity between Jungle Meow and the drivers.  However, as my readers will recall, California passed AB1897, which puts all the participants in the chain of employment at risk for wage and hour and other labor violations.

With the technology almost in place to eliminate the human component from the delivery process, any doubts Jungle Meow had about investing in driverless car and drone delivery methods might be brushed aside.  As is typically the case, once the big boys start using a technology, it’s not long until cheaper versions of it are available everywhere along the food chain.

Archer - replaced with robots

But here’s a cruel effect of these class action lawsuits – there is no rhyme or reason for us to think that this “class” of four drivers represents all or even most of the Jungle Meow delivery drivers.  Most of them were aware of the terms, and are still perfectly content to continue under the same terms.  If this lawsuit is successful, and they end up losing their independent contractor status, Jungle Meow might stop offering this service all together, and they’ll lose their terms they were happy to have.

But, for now, your humble blogger gets to enjoy goods delivered to his home in under two hours; Jungle Meow enjoys another way of making sales; and the delivery drivers, whether independent contractors or legally employees, get to enjoy making the choice of earning a living this way.

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Happy Veterans Day 2015!

November 11th, 2015 No comments

Hello dear readers!

Your humble blogger wishes you a very happy veterans day!

Although this blog is somewhat limited publication, each of my beloved readers is a whole bag of awesome, so I would like to take this post to make a shameless plug for the Fisher House Foundation.

Fisher House provides near-by housing for families of veterans while the veterans receive treatment.  Although I am just a JD and not an MD, I can’t imagine anything better for the healing process than having one’s loved ones nearby during the process.

Here’s hoping you have the day off today!



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No Right to Re-Open Based on Unrepresented Stips

November 9th, 2015 No comments

Hello, dear readers!

Another weekend is just a distant memory, and here your humble blogger is, with a smile from ear to ear and a blog post from computer screen to computer screen.

Today’s post is on the beloved subject of new and further disability.  Applicant’ sustained an admitted injury to the left upper extremity way back in 2010.  He requested and received a panel QME, and the report was rated by the DEU.  The PQME’s original report provided a rating for grip loss AND elbow loss of motion, yielding 14% WPI.

But the stipulations were approved at 4% permanent disability.  Applicant subsequently retained counsel and filed a timely petition to reopen for new and further disability – it appears to your humble blogger that the DEU rater had rejected the PQME’s use of grip loss in the presence of range of motion (Huzzah!) and the unrepresented injured worker didn’t know any better.

What do you think, dear readers – does wanting a second bite at the apple (this time using an attorney’s teeth rather than one’s own) entitle an applicant to reopen the case?

The WCAB (and the WCJ) both said no.

From the WCJ’s Report and Recommendation, it appears that the issue of inadvertence on the part of the injured worker in agreeing to the original stipulations was not raised at trial, and, even if it was, that’s not a basis to set aside a contract anyway.

Furthermore, the PQME offered his opinions after the petition was filed – applicant is no worse now that he was at the time of the original stipulations.

There appears to be some misconception floating around in some pockets of the workers’ compensation world that “new and further” is ancient Latin for “give me more money.”  It’s not – in order to reopen your case you actually need to have more of a claim.  The WCJ cited authority to the effect that “[f]or disability to be new and further, it must be ‘in addition to that disability for which proceedings were timely commenced or for which compensation was already paid’.”

A change in the law also presents good cause to reopen or modify an award (Knowles v. WCAB (1970)) but no change in law was articulated here.

Now, here’s a fun thought – think back to Dahl, dear readers – that wonderful , beautiful opinion from the Court of Appeal.  How many cases are there out there that stipped out or were issued an award based on voc-rehab reports that are no longer valid under Dahl?  How many Awards were issued based on the very methodology and reasoning that was applied therein?  If your DOI is late 2010-2013, it might not be too late to file a petition to reopen, citing a change in law.

What do you think, dear readers?  Is your humble blogger off his proverbial rocker once again?  Or should we take Dahl and clean up some of those old files?

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“Injured” Employee Caught Bench-Pressing 315 Pounds

November 6th, 2015 No comments

Sometimes, dear readers, your humble blogger’s handlers fall asleep at the wheel, and I’m allowed to venture into the real world and meet new people.  During these inevitably awkward exchanges, I’m sometimes asked “what’s the world of workers’ compensation like?”  Often these prompt me to stare off into the horizon (you’ve seen movies) and think about what life in our little swamp is like.

Ponder, if you will, this story out of Orange County.  A certain gentleman (who, absent a conviction will remain nameless) has been charged with two felony counts of insurance fraud and two felony counts of making fraudulent statements.  Employed by the Orange County Social Services Agency, he claimed to have sustained an industrial injury to his shoulder, and, when he was assigned desk duty, claimed he was too hurt to operate a phone.  While on TTD, he was witnessed bench-pressing 315 pounds, and then telling his doctor, the next day, that he still couldn’t use his shoulder.

Although this doesn’t get spelled out in the news release, your humble blogger imagines that there’s more evidence available than just some witness.  In all likelihood, there’s recorded video and professional investigators ready to testify as to this case.

But, this is not atypical of workers’ compensation: accusations of the most brazen, obscene, ridiculous fraud; allegations of a man physically fit enough to bench press more than 300 pounds sucking the life-blood out of a social services organ of the government.

The employer in this case did the right thing and investigated – odds are someone, a co-worker or a friend probably even tipped them off.  And, if the DA’s office is moving forward, there’s likely plenty of evidence to support a conviction.

And so, the circus music plays in the background, and then your humble blogger is snapped back to the conversation at hand: “Well, you know, it’s just like anything else, I guess.”  But it isn’t…

Have a good weekend, dear readers!

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MPN Doc at non-MPN Location? WCAB Says OK!

November 4th, 2015 No comments

Hello dear readers!

Your humble blogger wishes you a happy Wednesday.   Today’s post is not about lien claims, even though every other news source is covering this happy news in-depth – the injunction is lifted and un-activated lien claims are to be dismissed as of January 1, 2016.

Today’s post is about everyone’s favorite topic: Medical Provider Networks!  We are faced, once more, with the same question: Would a rose by any other name smell as sweet? Can a doctor listed in an MPN treat at a non-MPN location and still be considered the PTP?

This issue came up in the writ denied case of Pasquel v. Boeing Company.  Applicant selected a PTP from defendant’s MPN, and then the PTP started treating applicant at a non-MPN location.  Is this ok with you, dear readers?

The WCJ found that applicant was entitled to treat with his doctor at any location, and so awarded costs for services rendered.  Defendant sought reconsideration, reasoning that the MPN is the MPN, and non-MPN locations should be excluded from reimbursement.  The WCAB majority ruled “[w]e rejected defendant’s contention that the inclusion of [the PTP] as a participating provider at U.S. Healthworks precludes applicant form selecting him as his treating physician to provide medical treatment at a different medical office.”

The majority reasoned that when there was no specific notice that the PTP was authorized only at the listed location, there was no limitation to treating with that PTP at a non-MPN location, “as there is no statutory requirement that medical treatment be provided at a listed location.”

Reading the opinion and dissent, your humble blogger is a bit puzzled… what am I missing?  We have regulations, don’t we?  In fact, section 9767.3(c)(4) is pretty clear: “An MPN determines which locations are approved for physicians to provide treatment under the MPN.  Approved locations are listed in an MPN’s provider listing…”

It does not appear that section 9767.3(c)(4) was discussed by the panel opinion, at least based on the Lexis summary.  But, even though it is a lowly regulation, and does not rise to the prominence of a statute, we still have regulatory authority that seems to be directly on point: the MPN gets to pick the doctors and the locations.  Your MPN doctor isn’t allowed to lure you from the U.S. Healthworks clinic to his van down by the river with a trail of pain meds…

In any case, dear readers, if applicant is treating with an MPN physician at a non-MPN location, don’t sit back and rest, thinking that bill will never be due.  You paid for your MPN, now defend it! Under Labor Code section 5502(b)(2) expressly allows you to set the issue of whether an applicant must treat within the MPN for an expedited hearing, and your defense attorneys are more than happy to be tasked with the work.

Weekends’ a comin, dear readers, chins up!

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COA: *SIGH* No, You Can’t “Buy” Your Own QME

November 2nd, 2015 No comments

Happy Monday, dear readers!

Your humble blogger always wants to be honest with his beloved readers, and to that point, it’s confession time.

Yesterday, I spent about 25 minutes with my kids searching for their Halloween candy which I had eaten the night before.  They’re not at an age to read the blog, so I’m certain my secret is safe with you.

As an act of contrition, I offer you this blog post on the Court of Appeal decision of Batten v. WCAB.  As you may recall, Batten has graced the electronic pages of this blog previously, where applicant obtained a report from a psyche doctor concluding that her psyche condition was industrial, and the WCJ rejected the actual QME’s opinions as to AOE/COE to adopt the opinions of the “hired gun” instead.

The WCAB reversed, noting that 4064 reports are relics from before SB-899, and that the only admissible medical expert reports are now through the panel process of 4062.1 or 4062.2.

Applicant argued that there was a conflict in the language of the law – 4064 allows admission of all comprehensive medical evaluations except as provided in section 4060-4062.2, but 4061 specifically limits compensability reports to the panel process (as to privately retained experts – treating physician reports are still ok).

The Court of Appeal essentially concluded that you can go and get your own report if it makes you feel better, but the report does not become part of the record.

So, dear readers, what’s the point?

Just like with a 4050 exam, the injured worker can retain a personal expert to prepare the applicant’s attorney for a cross examination, or just make the arguments directly to the PQME for consideration.  The problem for most injured workers is that they  don’t approach the case with a war-chest of litigation funds, so this tactic might be of a somewhat limited benefit.

There are a lot of meritorious arguments to returning to the pre-SB-899 format: dueling experts and each side retaining its own hired gun.  Locking both parties in the tiny QME cage and having them duke it out produces more litigation than one can shake a proverbial stick at.  On the other hand, while we are stuck with using the panel system, Batten gives a pretty good result: an applicant can have as many examinations as he or she wants, but the barrier to entry into the record remains fairly high.

Here’s a question for you, dear readers: should the applicant be able to object to closing discovery just to obtain his or her own expert evaluation and report?  Picture this timeline: panel QME sees applicant, and issues a report 30 days later finding the injury non-industrial.  After a 30-day turn around (we’re up to 2 months since the initial evaluation) the applicant’s attorney selects and retains his or her own expert under 4064, and 60 days later we have a new report from the 4064 doc finding the injury industrial.  What if the defendant filed a DOR in the meantime and wants the MSC to close out any more reports (including the QME’s review and response to the 4064 doctor’s report)?

Things to ponder on a Monday.

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