Jack of All Trades, M.D. of None – Chiros Can Be QMEs on All Injuries?

April 14th, 2014 2 comments

Why do we need QMEs?  Or  AMEs, for that matter?  Why can’t the primary treating physician make a full review of the records, provide measurements and a list of subjective complaints following the evaluation, and then allow the attorneys or the DEU to plug those measurements into the AMA Guides and come up with a whole person impairment rating?

After all, your humble blogger is a doctor of sorts, and why can’t the Juris Doctorate be applied to fill in the role for the doctor?  It’s not like I would be performing surgery, and I’ve seen enough episodes of House and Scrubs to wing this whole medical stuff, right?

Oh… well fine!

In that case, let me tell you about the recent panel decision in the matter of Tallent v. Infinite Resources, Inc.  Mr. Tallent was employed as a mechanic (what kind of mechanic? A very Tallent[ed] one!)

All kidding aside, Mr. Tallent sustained very serious injuries, and his treatment included orthopedists and neurosurgeons, among others.  In the course of his treatment, he became depressed and was referred to a psychologist.

Ultimately, the QME, a chiropractor, wrote a report in which he provided ratings for all impairment, including psyche and the results of the spinal surgeries.  In writing this report, he apparently relied on the findings of the various treating physicians and his training as a chiropractor and a QME.

Well, as one can imagine, the defendant had a problem with that.  Defendant made the argument that a chiropractic QME cannot comment on the impairments that fall outside of his or her scope of practice.

The WCJ considered both sides of the argument, but ultimately ruled that a Chiropractor QME could and should render opinions on all sections of the AMA Guides, and such opinions did not constitute providing medical treatment outside the scope of the chiropractor’s medical license.  The Chiro QME’s report was supported by the reports issued by treating physicians, which were incorporated into his own.

The WCAB denied reconsideration and adopted the WCJ’s report.

Now, your humble blogger can’t help but ask, as discussed above: why do we need QMEs?  Can’t a primary treating physician take measurements? Can’t a DEU rater be trained in the AMA Guides and just plug those ratings into the AMA charts and graphs?  For that matter, can’t this all be done with software?

If a professional’s expert opinion is valid because of his or her training, rather than any particular license, why can’t the DWC just provide the AMA Boot Camp and call it quits on the whole QME system?

Furthermore, at what point would a chiropractic QME feel qualified in disagreeing with a neurosurgeon or psychologist as to findings, treatment, or causation?  And if the medical referee does not have the training or experience to provide a meaningful second opinion on an issue, what is the point in the objection and the QME/AME process?ss

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Crackpot Idea: What if Workers Picked and Paid for WC Insurance?

April 9th, 2014 3 comments

Your humble blogger has friends from all walks of life – I talk with crowds and keep my virtue, I walk with Kings – nor lose the common touch.  So, it should come as no surprise that as I and my circle of friends were sipping tea and grumbling about our lives into the wee hours, an idea was hatched.

Did this idea have to do with Workers’ Compensation? Yes!

Is it a crackpot idea to reform the workers’ compensation system? Yes!

Am I about to bore you with another Utopian pipe dream, the only redeeming quality of which is that literally ANY system has the potential to improve California’s workers’ comp jungle? Oh, you better believe that’s a yes!

The Anarchist at the table, having heard my ranting about workers’ compensation, made the point that if employers can shift the responsibility of buying car insurance for employee delivery drivers to the employees (see Craigslist for any number of driver positions that require the applicant to have his or her own car and insurance), why can’t the employer do the same for workers’ compensation insurance?

After all, if the experience modification that determines the workers’ compensation rate (to some extent) is determined by the number of injuries the worker sustains and the extent of the injuries, the worker himself has the incentive to work safely and careful and keep his premium down.  Also, he can shop around for the company he trusts and that will promptly pay benefits rather than try to stonewall him.  The injured worker could even base his choice on such options as (1) the Medical Provider Network in the area or (2) the pre-authorization of treatment.  Unions could pool their resources to purchase policies for their members.

The response quickly came from the Communist (the Democrat and the Republican at the table were both already planning their move out of California and quickly lost interest in the arrangement of the deck chairs on the Titanic).  The Communist, calling on his experience with labor union and the plight of the working class made a good point: what incentive would the employer have for returning injured workers to their jobs or even providing a safe work environment?  After all, why bother with safety training or equipment when workers become disposable and someone else is footing the insurance bill?

At that point, your humble blogger stepped out for some fresh air, but upon my return, this compromise seems to have been reached: the best system would require the injured worker to purchase his or her own insurance, and would require the employer to reimburse the employee for half of the premium (some employers, no doubt, would offer to reimburse the entire policy as a competitive recruitment tool, and some employers could continue to provide the coverage as they do now).  This way, both the employee and the employer would have a vested interest in a safe working environment, a responsible insurer, and a careful and responsible work force.

What do you think dear readers?  Are the abused employees of California just seeing another attempt to further squeeze their meager purses by a heartless defense attorney?  Or is this a breath of air to stoke the dying fire of California’s economy?

Now, again, dear readers, before you sharpen your pitchforks, light your torches, and angrily demand a refund on your blog subscription dues, just recall: this is yet another crackpot idea.  It’s something to think about and to (hopefully) encourage a bit of discussion on why we have a system like we do, and what we should do about it.

Happy Hump Day!

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Injury Sustained Traveling to AME Eval Not Compensable

April 7th, 2014 No comments

If an injured worker gets into a car accident on the way to an AME evaluation, is the injury compensable?

Consider the recent panel decision in the case of Evans v. San Joaquin Regional Transit District.  The unfortunate applicant, having suffered a history of back injuries, now claimed a cumulative trauma to the back.  She was evaluated by an AME, who offered several conflicting opinions, wavering back and forth on the issue of whether there was an industrially caused cumulative trauma to her back, in excess of those past claims for which she had already been compensated.

While en route to an evaluation by the AME, applicant was in a car accident and sustained additional injuries, which she claimed were compensable.  As applicant was rear-ended while at a red light, presumably the compensation would be recoverable from the third-party insurer or the third party him/herself.  However, the unfortunate facts of the workers’ comp system would require the defendant, if the injury is admitted, to pay out first and seek credit or recovery later.

The matter proceeded to trial and the WCJ found both injuries compensable, awarding 15% permanent disability for the cumulative trauma, and an additional 14% permanent disability for the car accident as a compensable consequence.

On review, the WCAB reversed – the AME ultimately settled on the conclusion, after much back and forth, that there was no cumulative trauma injury to the back.

Additionally, the car accident claim was not compensable for two reasons: the first was that it was a consequence of a non-injury, and such no more compensable than applicant getting into a car accident while traveling to receive treatment for a non-industrial skiing injury.

Finally, the WCAB relied on the case of Rodriguez v. WCAB, where the Court of Appeal held that injuries sustained as a result of the litigation process were not compensable as consequences of an industrial claim.

Accordingly, the WCJ was instructed to issue a take-nothing order.

This case offered a good result for the defense, and a good reminder of AOE/COE boundaries.  The workers’ compensation claim is not a part of the job description, and while the events that give rise to the original claim might have compensable consequences, attending an AME evaluation certainly does not.

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Uninsured Employers and CT Injuries

April 2nd, 2014 No comments

Jack doesn’t have insurance.  Jack gets an employee.  Jack wises up after having an employee for almost a year, and gets workers’ compensation insurance.  Jack’s employee files a claim for a cumulative trauma injury.  Jack’s insurer refers the file to its defense attorney, who notes that the date of injury, as per Labor Code section 5412, falls on the first day of the insurer’s coverage.

So, 364 days of the cumulative trauma period fall under the uninsured employer’s umbrella, and just one day falls under the insurer’s coverage.  Great right?  Yeah, not so much.

What generally happens when an employer is uninsured, is the Uninsured Employer Benefit Trust Fund gets involved.  UEBTF, after being joined, will pay out anything that the employer is ordered to but doesn’t, and then come after the employer.  Neither limited liability business formations nor bankruptcy protections provide absolute defenses to the UEBTF’s reach.

So why can’t the 1/365 insurer just seek contribution from the UEBTF, who can in turn collect it from the employer?  Because of Labor Code section 3716(b): “it is the intent of the Legislature that the [UEBTF] … is not created as a source of contribution to insurance carriers, or self-insured or legally insured employers.”  The UEBTF isn’t liable for a CT injury when there is anyone else in that CT period that is insured or self-insured.

If that sounds familiar, it should.  California Insurance Guarantee Association (CIGA) has a similar set-up, with a statutory defense to liability when there is any “other insurance” available.  In fact, my dedicated readers may recall the Crawford case, where One Beacon was forced to pay for an entire claim for just 10 days  covered out of a cumulative trauma period, because the other 355 were carried by a now-dead insurer, and CIGA put the target on One Beacon’s back.

So, if you’re faced with a situation like this, do not go forward expecting to recoup 99% of your costs through a petition for contribution.  Instead, focus on shifting the 5412 date of injury away from your coverage completely – you’re not going to get much from the illegally uninsured employer, who might not have any assets or might use its assets to finance its legal defense.

The other player to consider is the District Attorney.  If the DA takes an interest in prosecuting the failure to carry workers’ compensation insurance, the insurers left footing the bill can rightly be considered victims, and should be entitled to restitution, which usually finds its way into a plea bargain.  Talk to the DA, let him or her know what’s going on, and set up a payment plan – you might get some of that money back!

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BREAKING NEWS: CAL. SUPREME COURT RULES ON COMP MARIJUANA CASE

April 1st, 2014 No comments

THE FOLLOWING IS AN APRIL FOOLS’ JOKE FROM 4/1/2014.

Hello, dear readers!  Although your humble blogger has confined his ranting to Mondays, Wednesdays, and Fridays, in compliance with what I shall only refer to as Judge Wesley Lucan’s restraining “suggestion”, this is a breaking news alert.

In the late hours of yesterday evening, the Supreme Court of California handed down its opinion in the case of Pacific Pipes v. Workers’ Compensation Appeals Board, ruling that the WCAB has jurisdiction to require employers to provide medicinal marijuana to employees treating for or recovering from industrial injuries.

Jack Warner, an employee of Pacific Pipes, claimed to have sustained an industrial injury over a cumulative period resulting in headaches, sleep problems, and generalized pain.  “I get tired after work sometimes,” Mr. Warner was quoted as saying on the steps of the WCAB.

Mr. Warner’s primary treating physician, Mary Jane, M.D., recommended medical marijuana to ease Mr. Warner’s symptoms.  However, as his temporary disability benefits had been exhausted, Dr. Jane also recommended that the employer furnish Mr. Warner with a dark room in which he could smoke marijuana at work prior to performing his duties of operating heavy machinery and driving the local school bus (on an on-call basis).

The employer was admonished to allow great latitude in Mr. Warner’s choice of music during these self-administered “treatment sessions” and to provide nutritional supplements in the form of chips, cookies, and water.

The employer sought WCAB intervention, but was ordered to comply with Dr. Jane’s recommendations.

After winding its way through the lower courts, the Supreme Court finally reviewed the matter and ruled that Labor Code section 4600 specifically requires employers to provide reasonable medical treatment to cure or relieve from the effects of the industrial injury.  The Court further ruled that California Health and Safety Code section 11362.785(d) was unconstitutional, and void.

In writing for the majority opinion, Justice Wender referred to the employer, Pacific Pipes, as a “narc” and strongly urged all parties to just “chill out.”

There has yet to be any comment from a representative of the Federal Government as to how the relevant laws will clash in the future.

Your humble blogger encourages all employers and insurers to smile once in a while, try to take workers’ comp in stride, and enjoy the rest of your April Fools’ day!

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4061(i) and Some Ideas on Getting to Trial Without a QME Report

March 31st, 2014 No comments

Your humble blogger had the displeasing experience of watching unwelcomed neighbors move in over the weekend.  Just when I was starting to get the feel of the neighborhood, and the rhythm and routine of my fellow renters and sporadic home-owners was working itself out (the noise was at appropriate times; the job departure and arrivals had stopped interfering with each other) these new people moved in!

Now, I have to put up with them taking my prized dream parking spot (that curb near my door), listen to their dog bark day and night, and wait for them to pull out of the driveway so I can go to work and help deny benefits every morning.

Now I can sympathize with the other provisions of the Labor Code – that’s how they must have felt when Labor Code section 4061(i) moved into the area.

You’re not familiar with this one?  It’s one of the more infuriating additions to the rules: Labor Code 4061(i) purports to require a party to obtain a PTP AND an AME or Panel QME report prior to filing a DOR on the issues of permanent disability or work restrictions.

But what if you’re content with the PTP report and ready to go to trial without bothering with a QME report?  What if both parties are content to go to trial based only on the PTP report (not likely, I know).

Well, this blog wouldn’t be of too much use if I wasn’t prepared to offer you some crazy, crackpot, dice-rolling maneuvers on moving files along in the face of an inactive applicant and an inactive applicant’s counsel.

First off, let’s look at the language: “no issue relating to a dispute over the existence or extent of permanent impairment and limitations resulting from the injury may be the subject of a [DOR] unless there has first been a medical evaluation by a [PTP] and [an AME or QME].”

So, you have your P&S report from your PTP, and you offer to stip or C&R based on that report.  No response.  So you go ahead and file a DOR.  When you show up to the Board and the applicant starts citing 4061(i) at you, what’s the response?  There is no dispute!  You’re agreeing to go off the PTP report and applicant is silent (qui tacet consentire videtur).

Now, if your angry applicant is there pounding his fist and (loudly) professing NOT to consent, then let’s check the file – was there a timely objection to your DOR?  Was the objection made under penalty of perjury?  (See California Code of Regulations section 10251).  If the objection was untimely, not under penalty of perjury, or had any other defect, then you should argue that it’s time to proceed to trial.

Finally, don’t forget the laches argument – Vigilantibus non dormientibus aequitas subvenit – Equity aids the vigilant, not the sleeping ones.  When applicant sits on a PTP report for six months without an objection, without a panel request, without an offer of an AME, there’s hardly a reason to keep this file open, and if the WCAB is even slightly concerned about judicial economy, it should discourage the need for a hearing prior to moving cases towards resolution.

But how have the panels been interpreting this most unwelcomed addition to the Labor Code?  The pickings are slim.

Your humble blogger found two panel cases in which the WCAB held that no trial should be set where there had not been a QME or AME report, which is not a particularly encouraging result for diligent defendants trying to resolve cases without wasting money on QME or AME reports and evaluations.

Now, before you put these crackpot ideas into play, don’t forget that your humble blogger’s liability is strictly limited to a refund of your subscription free.  But if you do try to argue your way around 4061(i), please, please, please let me know the results.

As for the new neighbors, here’s hoping they learn to swim with the current, instead of trying to mess up the stream.

Have a good week!

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MPN Enforced Under 4616.3

March 28th, 2014 No comments

Hello, dear readers!  The clouds have parted, if only temporarily, the birds are with song, and your humble blogger appears as invited into your e-mail in-box with a new blog post.

Like the little rays of sunshine which, even now, grace the windows of your office which you can occasionally see between the stacks of files, now comes a little bit of good news in the workers’ comp world.

I bring you the panel case (writ denied) of Avila v. Barrett Business Services.  Therein, applicant was treating within the medical provider network, and then suddenly stopped, jumping outside of the network.  Of particular interest was the fact that he had two claims – one for a cumulative trauma, and one for a specific injury.  The former was denied and the latter accepted.

Well, applicant’s counsel attempted to use this fact to block an expedited hearing on the matter.  Pursuant to Labor Code section 5502(b)(2), defendant sought to force applicant back into the MPN, filing for an expedited hearing.  Applicant, however, argued that this matter could not be set for an expedited hearing, because the cumulative trauma claim was denied, and therefore it was inappropriate to have an expedited hearing.

The WCJ held, however, that the whole point of section 5502(b) and the SB-863 amendment was to allow these issues to be decided promptly before “large self-procured bills were run up.”  Accordingly, even when there are other denied cases, it is appropriate to decide expedited hearing issues on the admitted cases.

More importantly to the case, however, was whether applicant had the right to treat outside of the MPN.

The main sticking point in the argument was that the defense had provided an MPN printout as a courtesy at some point after applicant began treating.  He eventually selected a doctor that was in the MPN, and yet was not on the printout (the record is unclear as to how this happened).

Applicant continued treating with this invisible, yet MPN-friendly doctor, throughout the life of his claim, until he suddenly stopped.  His testimony, however, revealed that he was happy with his MPN physician, and only changed treating physicians on the advice of his attorney.

Now, your humble blogger is not familiar with the applicant’s firm in this case, so he is hardly able to report the reason for this advice.  It may have been that the good doctor’s bedside manner far outpaced his ability to treat well or write effective workers’ compensation reports.  On the other extreme, it could have been that he was unlikely to provide reports that would have indicated greater permanent impairment and need for treatment.

If we all rack our brains, I’m sure we can think of one or two attorneys that would happily pull their client away from a solid, respectable, and effective treating physician (and thereby pull their client off the road of recovery) to stick them with some quack with a license that’s one more incompetent act away from suspension, but will find endless compensable consequences and work restrictions.  Sure, the applicant will be maimed and never work again, but if he returned to full duty and didn’t need much more treatment, how would the applicant’s attorney get paid?

The WCJ ultimately ruled that the language of Labor Code section 4616.3 (“[t]he employer’s failure to provide notice as required by this subdivision or failure to post the notice as required by Section 3550 shall not be a basis for the employee to treat outside the network unless it is shown that the failure to provide notice resulted in a denial of medical care”) militates against allowing applicant out of the MPN.

The bottom line is, that medical treatment is not a pawn to be moved around the chess board, and treating it like some petty game piece is unacceptable.  The injured worker was happy with his doctor and should have stayed with him.

Have a nice weekend!

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Legislation Proposed to Kaibosh Knittel Case

March 26th, 2014 1 comment

Some of your humble blogger’s devoted readers represents cities and counties, and so, naturally, have to deal with injury claims from peace officers entitled to paid leave rather than temporary disability benefits for up to one year.

It would be the rudest form of neglect if I was not prepared to provide an equal amount of disappointment and dread with respect to the workers’ compensation system in California to all readers, including those who employ peace officers and firefighters.

In the Court of Appeal’s opinion in the case of Knittel, the law became very clear to us all, that Labor Code section 4850 allowed peace officers and fire fighters to have a leave of absence of one year without any loss of salary in lieu of temporary disability benefits, but not in addition to the 104 week cap imposed by Labor Code section 4656.

Well, about that…

It appears that Assembly Member Perea is not happy with the Knittel opinion, and has introduced Assembly Bill 2378 “to abrogate the holding in … Knittel,” amending the Labor Code to make section 4850 benefits payable in addition to those benefits outlined by Labor Code section 4656.

In other words, if you are injured as a firefighter, you should be able to be paid to be off work for 3 years!

Your humble blogger has a great deal of respect for our beloved public servants, but come on.  Each firefighter and police officer is already expensive enough for every city and county (and the state), without adding another cost to the bottom line.  At the risk of being pulled over for a soon-to-be-broken tail light, why not get elected by promising to make every single peace officer a millionaire?

The police and firefighters in California do a tough job and they are compensated very well.  They enjoy more privileges and better benefits than most of the other people in the state.  Do you really want to burden cities and counties barely making ends meet with an extra $56,000 in temporary total disability liability?

Your humble blogger says no – let the public servants sleep in beds no better than the public served.

Police Chief Wiggum

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M.D.’s Guzman Analysis Defeated

March 24th, 2014 No comments

What better way to brighten your Monday, dear readers, than to tell you the tale of a failed attempt to use the ol’ Almaraz/Guzman hot air machine to inflate the impairment of an injured worker?

Consider, if you will, the case of Davis v. Walt Disney Company.  Now, Disney Land truly is the happiest place on Earth, but the Disney Company office is probably not even in the top 10, as poor Mr. Davis discovered when he hurt his back while pulling a heavy filing cabinet just three days into the year of 2008.

Well, he apparently sustained considerable harm from his injury, but of particular interest was the method used by the orthopedic Agreed Medical Evaluator.  The good doctor waved his wand, cast his spell, and after saying “hocus pocus” a few time, started flipping through the AMA Guides until he found Figure 15-19, and multiplied the 80% whole person impairment for total loss of function by the 60% loss of function to provide a WPI of 48% (the “straight” AMA rating would have yielded a DRE Category IV 26% WPI).

The AME testified that he relied on simple arithmetic to arrive at this 48% figure, and that there was no table or graph telling him that 60% loss of function would yield a 48% whole person impairment.

After a brief trial and a trial brief (get it? Ha, ha, ha…) the WCJ found that the Almaraz/Guzman rating was not substantial evidence.

The AME concluded that 60% of applicant’s cervical spine function was lost, despite very different conclusions reached by the Range of Motion and DRE Methods.  As the A/G opinion holds, a physician is not allowed to conduct a fishing expedition through the Guides ‘simply to achieve a desired result’.

Of particular interest in the fact that if the AME were to use the work restrictions he imposed in a pre-2005 rating schedule (limitation to light work), the pre-2005 rating schedule result would be the same: 50% WPI (the AME added pain to the 48%, resulting in 50% WPI).

During the deposition of the AME, defendant also made another good point: sometimes there isn’t a linear growth in impairment, so while a total loss of function might produce 80% WPI, there is no reason to assume that 50% loss in function would result in 40% WPI, and not 35% or 45%.  Accordingly, the use of simple arithmetic to calculate the WPI to the cervical spine is something the good doctor came injected himself, and is not based on the AMA Guides in this case.

Through a vigorous defense and assault on the Almaraz/Guzman rating, the defense was able to dispel the magic smoke and mirrors, and hammer the case back down to the strict AMA Guides.

As my readers will recall, we’ve seen the Almaraz/Guzman ratings defeated in the past.  For example, we saw the WCJ and WCAB reject an A/G rating in Olguin v. ESIS; we’ve seen the WCAB uphold an evaluating physicians’ refusal to apply A/G in the Malhotra v. State of California case; and we’ve even see A/G used to reduce whole person impairment in the Riley v. City of Pasadena case.

Unfortunately, these are rare examples, and the norm is to witness the magic that is Almaraz/Guzman turn a papercut into a paralysis.  Abracadabra.

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Relationships Are Key to Defending WC Claims

March 21st, 2014 No comments

Relationships can be tricky, and often a lot of time is spent wondering whether the relationship is there, in the real world, or just sharing a bench with the Easter Bunny and Santa Clause (figments of your imagination, all).  Think back to grade school, when Gina asked to borrow your eraser and then returned it with a nice “thank you.”  How many hours were spent agonizing over whether you were now in a committed relationship?

Such was the case with the unfortunate Mr. Graves in the matter of Graves v. Roy’s Concrete & Masonry, Inc.  Applicant claimed to have sustained an injury, but defendant tenderly placed his its finger to his lips, whispering “hush… you were never an employee.”

The matter proceeded to trial and applicant claimed that he had been paid $100 per day as an employee of Roy’s Concrete.  But the Judge noticed that, before the Labor Board, applicant testified to being paid $25.00.  He claimed to have gotten emergency treatment for his injury, but cross-examination showed him to have gotten treatment for his migraines.

In other words, the Judge was not impressed, and found applicant’s credibility to be lacking.  A take-nothing order was issued.

In his petition for reconsideration, applicant argued that the WCJ should have undertaken a Borello analysis.  The WCAB gave this argument very little credence, noting that if there is an affirmative finding that applicant is not a credible witness, then it is easy to proceed to a finding of no credible evidence of an employment relationship.

Defendant was saved from a whole world of pain in this case because the defense attorney was able to properly impeach the applicant-witness.  But, if you pull back the curtain here, you can see there was a lot of communication between the employer and the insurer.  The insurer probably didn’t have much interest in the Labor Board proceedings against the employer, but by all parties sharing information and working together, applicant’s inconsistent testimony could be properly laid out for the record.

Your humble blogger knows it takes extra time and extra money, and sometimes can be downright difficult to do – but while the employee and the employer is sorting out their relationship status (for the Facebook generation, that would be the “it’s complicated” category) the relationship between the insurer and employer should be solid, glowing, and one of trust and cooperation.

And no, dear readers, in case you’re wondering, Gina actually just needed to borrow your eraser – you can still see other people.

Have a good weekend!

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