Reconciliation; Death Benefits; and another Blast from the Past!

January 20th, 2017 No comments

Happy Friday, dear readers!

Your humble blogger was taking a look at Lexis’s Top 25 Noteworthy Panel Decisions, and came across the case of Woolever v. City of Long Beach.  Basically, the injured worker died as a result of an industrial injury, and the courageous gubmn’t swoops in with the Death Without Dependents Unit to hit the defendant up for $250,000.

Well, the injured worker’s ex-wife was presented by defendant as a dependent, and argued that the decedent provided court-ordered spousal support and additional support a well (loan forgiveness, gas, other necessities).  However, the WCJ and the WCAB both rejected defendant’s position because the decedent and his wife never reconciled after their divorce.

The WCAB opined that “[s]ince there was no reconciliation of the marriage of Applicant and the Deceased … and because Applicant and the Deceased did not live in the same household after they divorced and sold their home in the late 1990s, Applicant is not entitled to dependency death benefits on the basis of the financial support she received from the Deceased.”

Ok, so why am I boring you with this case?  Because it leads into a … [wait for it] … Blast from the Past!

Back in 1940, we got another case: Murry v. PG&E (5 CCC 4).  There, the decedent’s wife had obtained an interlocutory decree of divorce about a month before the industrial injury, and was thus obligated to pay $25 a month in alimony (presumably $422.37 in today’s dollars) and $25 a month in support of their son.  The decedent had time to make a single payment under the divorce decree before his injury.

Both the decedent’s ex-wife and his son were determined to be total dependents.

So, what’s the difference (other than about 75 years)?

Perhaps the ink was barely dry on the divorce decree in Murry and was ancient history in Woolever?  Perhaps the Murry decedent and applicant didn’t even have an opportunity to reconcile?

I dunno… I’m just a humble blogger.  Have a good weekend!

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New Lien Laws in Place – Swap Out the Checkbook for the Litigation Budget!

January 18th, 2017 1 comment

There are few things that make the frozen, black heart of a defense attorney hum with warmth and mirth.  The sound of a “take nothing” as it is retrieved from an enveloped from the WCAB; the smell of arrest warrants for workers’ compensation fraudsters; and, of course the inexplicably sweet atmosphere and ambiance of liens being mercilessly crushed underfoot.

2017 is the dawn of a new era for many reasons – from Washington, D.C., to San Francisco, a lot of stuff is going to be very different in the coming years.  Among them, even if not the most significant, is the treatment of liens.

I respectfully direct the attention of my cherished readers to the 2017 version of Labor Code section 4903.05.

Liens filed on or after 1/1/17 will require additional documentation, or suffer the sweetest justice of all: “dismissal of the lien with prejudice by operation of law.”  (Labor Code section 4903.05(c)(3).  And, just to make things interesting, it’s not only the post 1/1/17 liens – “[l]ien claimants shall have until July 1, 2017, to file a declaration pursuant to paragraph (1) for any lien claims filed before January 1, 2017.”  (4903.05(c)(2)).

So, what is it that will have to be declared, under penalty of perjury, for all liens, past and future?  Aside from declaring that the lien is not subject to independent bill review and/or UR, AND one of the following:

(A) Is the employee’s treating physician providing care through a medical provider network.

(B)  Is the agreed medical evaluator or qualified medical evaluator.

(C)  Has provided treatment authorized by the employer or claims administrator under Section 4610.

(D)  Has made a diligent search and determined that the employer does not have a medical provider network in place.

(E)  Has documentation that medical treatment has been neglected or unreasonably refused to the employee as provided by Section 4600.

(F)  Can show that the expense was incurred for an emergency medical condition, as defined by subdivision (b) of Section 1317.1 of the Health and Safety Code.

(G)  Is a certified interpreter rendering services during a medical-legal examination, a copy service providing medical-legal services, or has an expense allowed as a lien under rules adopted by the administrative director.

How many times have we had to deal with lien claimants that KNOW they are not in the MPN because this is lien number 3,561 as between Defendant A and Lien Claimant 1

How many times do we have to deal with lien claimants that subjectively understand that they are not entitled to reimbursement but think that they can get SOMETHING just for filing a lien and inflicting litigation costs on a defendant?

Well, those litigation costs might be disappearing soon – if the lien does not have the required declaration, under penalty of perjury, then it SHALL be dismissed by operation of law, with prejudice.  If it does have such a declaration, and you’re pretty sure that the declarant has committed perjury, list the declarant as a witness for trial or depose him or her – perhaps sanctions and costs will be ordered after the lie is exposed.

Current proposed regulations for section 10770.7 will operate to dismiss all liens filed prior to January 1, 2017, by operation of law, if there is no supplemental declaration filed with the WCAB on or before July 1, 2017.

To help lien claimants comply with these new rules, the DWC has prepared a form, but is appears to be only available to JET and e-filers, so it is not linked on here.

So, be wary, dear readers, and hold up this additional hoop for lien claimants to jump through before getting out your checkbook instead.  As for me, I feel that cold, dark heart of mine warming up already.

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WCAB Rules Facebook Profile Should Not Have Been Sent to PQME over AA’s Objection

January 16th, 2017 4 comments

Hey there dear readers – do you love surfing Facebook, Twitter, and all sorts of other social media?  Does your boss tell you that you can’t do that at work because it isn’t work?  That’s lame, maaaaaaan – a real drag!

Well, what if I told you that you can now combine business with pleasure and surf Facebook at work?

In a manner of speaking, if you’re looking to deal with your claims, you almost have to.

Facebook isn’t for college kids anymore – just about everyone and everyone’s mother is on it.  It’s not just for stalking ex-girlfriends and ex-boyfriends anymore either – folks promote their businesses on there.  They find business contacts.  In less professional fields, there is a pretty strong level of marketing and networking that goes on through Facebook groups.

The same is true, to some extent, for just about every other form of social media.

So what has your “injured” applicant been up to lately?  Is he starting a business? Is he competing in weightlifting competitions while on TTD?

What made me think of all this stuff (again) was a recent case that came up – Pecoraro  v. PT Gaming, a panel decision which has a whole lot of issues going on.

Applicant alleged a right shoulder injury as a CT.  After the parties selected a QME and set an evaluation date, defense counsel provided applicant with a cover letter, medical records log, Facebook profile, and sub rosa video which he intended to provide to the PQME.  As the panel opinion discusses, apparently, over applicant’s objection, defendant provided the Facebook profile to the QME.

Applicant then set a hearing and proceeded to trial on the issue, seeking to strike the PQME’s report and requesting a replacement panel.  The WCJ found no impermissible evidence was reviewed and denied applicant’s request for a new panel.  The petition for reconsideration followed.

After the recon petition, defense counsel appeared before the WCJ to walk through a C&R, presumably with applicant having dismissed his attorney.  The C&R was ordered approved by the WCJ and prompted a second petition for reconsideration.

The WCAB held that sending non-medical information to the PQME over applicant’s objection was a violation of Rule 35(d).  The finding that the PQME did NOT review impermissible documents was rescinded and the matter was returned “to the trial court for further proceedings consistent with the opinion.”

As to approving the C&R, the WCAB noted that the WCJ may have been stripped of jurisdiction to approve the C&R based on applicant’s first petition for reconsideration.   The WCAB also cast doubt on applicant’s dismissal of his attorney and ordered further discovery on this point.

So, a few thoughts on this one.

As to the panel issue, it seems like an objection to non-medical records being provided to a QME does warrant further review by a WCJ, but let’s look at the situation step by step.  If the defense provides objected-to records to the PQME, but the WCJ, at a subsequent hearing, rules that there is no basis to keep this information from the QME, what harm was done by sending the records?  If there is no harm done, why would the PQME be “poisoned”?

What’s more, what possible reason could there be to exclude an applicant’s Facebook profile from the eyes of the PQME?  When applicant shouts from the mountain-tops “X Y Z!” by posting it on Facebook, why can’t the QME review it?

As to the OAC&R, if an applicant has dismissed his attorney, the only possible reason to question this is to suggest that the defense attorney somehow engaged in fraud.  Are we SERIOUSLY getting to the point that we are accusing officers of the court of falsifying documents?  Does anyone think that a defense attorney would risk his career and his reputation (I’ve found that in a small community like Workers’ Compensation litigation, the two are one and the same) to get a single file closed?

And, of course, Facebook is a total goldmine for us.  Whether you decide to send the Facebook profile to the PQME over applicant’s objection or after getting an Order, this is a resource you should not overlook in every file that’s heading down litigation lane or represented road.

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Amazon Makes its First Drone Delivery!

January 13th, 2017 No comments

Happy Friday, dear readers!

Your humble blogger brings you a fascinating bit of news today that had me convinced it was fake until every major news source confirmed it:  Amazon has successfully made its first drone-only delivery.

According to this article from the NY Times the delivery was a test-drive which resulted in a 13-minute delay from order to delivery.  The video is very, very cool:

Now, this is just a test, and it occurred in Merry Old England, but imagine the implications here.  If this could be a regular thing for Amazon and its distribution centers in the United States, we’re looking at less demand for human labor, and lower costs for customers.

From what’s in the video, it looks like the weight limitation will be a very serious consideration for a while, and deliveries will continue to be made by humans.  However, this is a first step to automated delivery.  Eventually, heavier items will be delivered by flying drone (or driving drone) to the point where a growing segment of the current parcel delivery labor pool will be freed up for other work.

What does this mean for workers’ compensation? The same as the rest of it – the world that once called out for workers’ compensation laws as they rare is shrinking, and with it shrinks the relevancy of our beloved system.

Do you think, sometime soon, we will look up and see drones instead of the sky?  To quote Dienekes, then we will litigate in the shade.

Have a good weekend, dear readers!

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WCAB Finds “Ind. Contractor” Truck Driver to be Employee

January 11th, 2017 No comments

Hello, dear readers!

Your humble blogger brings you a post today about the wonderful topic of classifying workers as independent contractors vs. employees. Of course, prior to being hurt, many workers jump at the chance of being independent contractors – higher pay, the prospect of deducting various expenses from their taxes, and the ability to take on more than one client at a time… all of these are wonderful things!

But, like an offended child retroactively withdrawing an invitation to his or her birthday party (at the party, mind you), once injured, many workers want to claim that there was no agreement, no meeting of the minds, no basis upon which to rely on someone’s honor or good word.

Unfortunately, California is one of those states that is all too happy to disregard the intent of the parties at the start of the relationship.  Nor is California inclined to force former independent contractors to repay the extra money they were paid as compared to similarly situated employees.


Then again, you have other cases, where the facts suggest that the worker was an employee in everything but name.  Is it any less dishonorable to take a worker who is not sophisticated and educated in employee/independent-contractor classification and undercut competitors by unfairly classifying the worker at the employee’s expense?

In the case of Lozano v. Universal Logistics System, applicant claimed he was an employee and defendant raised the argument that he was actually an independent contractor.  Defendant argued that when applicant-truck-driver got into a traffic collision in 2014, he was carrying a load for defendant as an independent contractor because when he had first started working for defendant in 2006 he provided his own truck and could decline to take on loads.

But applicant testified that these terms changed in 2009 – he could no longer refuse loads and his truck could not comport with the emission laws for the port he visited.  He was apparently paid in his individual capacity and his checks showed deductions for various related expenses, including insurance and administrative fees.

The WCJ found applicant to be an employee, but defendant sought reconsideration arguing that (1) applicant interrupted his interpreter to answer questions, suggesting he didn’t need an interpreter; and (2) applicant’s testimony about who provided him with a vest (presumably one piece of a uniform) conflicted as to whether it was defendant or the Port where deliveries were sometimes made (or originated).

Ultimately, neither issue persuaded the commissioners to grant reconsideration.  The WCJ was rightly afforded a tremendous amount of weight on credibility issues, and given the state of the law and the natural presumption of a finding of employment, there was sufficient evidence in the record to conclude applicant was an employee.

Recall, if you will, that the applicant in Lozano was completely fine with the arrangement until he wasn’t.  From 2006 until 2014 it doesn’t appear there were any real complaints.  And you know how I know? Because he continued to do the job.

The dispute of independent contractor vs. employee is one that comes up with considerable regularity in California, and the defense needs to be prepared to offer thorough and fact-specific evidence of the relationship.  Simply put, mutual agreement at the outset of the relationship is not enough and employers would be wise, if they intend to retain the services of independent contractors, to properly document the relationship and give due regard to the Borello factors.

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Welcome Back! Some New Laws Effective 1/1/17

January 9th, 2017 No comments

Happy Monday, dear readers!

It looks like we are all, slowly but surely, returning mentally and physically from our holiday revelries.  Those fortunate souls who went on vacation are now returning refreshed and re-energized to their posts.  The intrepid souls that remained at work are ready to continue holding the line without missing a beat or being bogged down in catch-up duty.

2017 is here at last!

And here are a few things we can expect from 2017:

  1. Minimum Wage: California’s minimum wage has gone up yet again – from $10.00 to $10.50 per hour.
  2. Mileage Reimbursement: the IRS has reduced the mileage reimbursement rate from 54 cents per mile to 53.5.
  3. TTD Minimum and Maximum: The range of TTD is now from $175.88 to $1,172.57 per week (up from $169.26 to $1,128.43)
  4. Owner/Officer Comp Coverage: AB 2883 goes into effect, so owners and officers now need to provide additional documentation to be legally excluded from their policies (call your broker!)
  5. Medical Fraud Liens: AB1244 goes into effect, which will hopefully give a bit more teeth to the defense community in dealing with lien claims by parties convicted of various forms of insurance fraud.

There are others, of course, but hopefully those will raise a red flag in all of our minds about new issues to address in this year.  In particular, the new filing requirements for liens warrants its own post (stay tuned, dear readers)

In any case, dear readers, your humble blogger hopes that 2017 will be a year full of joy, peace, and success for all of us.

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Merry Christmas and Happy Hannukah!

December 25th, 2016 No comments

To my dear beloved readers – I wish you a Merry Christmas and a Happy Hannukah!

May this be a season of joy, rest, peace, and good health for each and everyone one of you, and may 2017 overwhelm you with success and good fortune.

As for the undersigned, I remain, even into 2017, your humble blogger.

Happy Holidays!


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Panel: 5th Amendment or Workers’ Comp Benefits – you can’t have both!

December 19th, 2016 No comments

Happy Monday, dear readers!

Most people with a TV set or a subscription to Netflix (let alone a basic education) are familiar with the concept of the 5th Amendment’s privilege against self-incrimination.  An accused cannot be compelled to offer testimony that might incriminate him or herself.

What happens when such a privilege is asserted in workers’ compensation matters?  Can the privilege against self-incrimination be asserted to avoid testifying at a deposition or hearing?  Can it be used to avoid submitting to a medical-legal examination?

In the matter of Smith v. Action Roofing, a panel case, presented such a situation.  Applicant sustained an admitted injury, but defendant alleged applicant committed fraud by engaging in softball during TTD periods, and lying about playing softball.  At some point, criminal charges were filed against applicant, and defendant sought to go to trial on its petition to dismiss based on fraud.

Applicant objected to proceeding to trial, arguing that as criminal charges were pending, applicant could not openly testify about the facts.

In denying applicant’s petition for removal of the order setting the sole issue for trial, the WCAB reasoned that “[d]efendant has a significant interest in proceeding expeditiously on its petition because defendant is continuing to pay benefits in this case and the continued payment of such benefits would be a significant burden if applicant’s workers’ compensation trial were stayed pending the resolution of criminal charges, which could take years… [a]lthough applicant has a significant interest in asserting his right against self-incrimination and applicant would be significantly burdened as such an assertion would create an adverse inference that applicant’s testimony would favor defendant, on the facts of this case applicant’s interest against self-incrimination is outweighed by defendant’s burden of continued payment of benefits and our constitutional mandate to resolve cases expeditiously.” (Emphasis belongs solely and exclusively to your humble blogger)

Now, I know this is only a panel case, dear readers, but it’s a wonderful result for the defense community.

Let’s put aside all the legal mumbo jumbo for a minute – one of two things is true: either applicant engaged in fraud or he didn’t.  If he did not engage in fraud, he can honestly and fairly testify about the facts of the case at his workers’ compensation proceeding without fear of any adverse effects on the criminal case.  However, if the injured worker must choose between engaging in perjury or self-incrimination, then, although the constitution might spare him a cell, perhaps he is not entitled to workers’ compensation benefits.

What’s the take-away for us?

Various privileges are asserted at deposition and trial.  Have you ever had an injured worker testify that he drove himself to the deposition, but then assert a privilege against self-incrimination when asked for a driver’s license?

Have you ever asked an injured worker if she has the right to work in the United States only to have the attorney instruct her not to answer based on 5th amendment privilege or privacy privilege?

Well, this panel case confirms other cases that allow for an adverse inference from asserting these privileges.

What’s more is that although incarceration is a basis for delaying resolution of workers’ compensation cases, pending criminal chargers are NOT grounds for delaying workers’ comp proceedings.  So if chargers are brought against an applicant, full speed ahead!

Now, it’s perfectly understandable that the more paranoid members of the applicant attorney bar will start crying out “injustice!”  They will see in their collective mind’s eye insurance companies pulling strings with their puppets in the prosecutor’s office to get rid of claims by having false charges brought against poor, defenseless workers.  Rubbish!

It is easier to have a camel pass through the eye of a needle than to get a case picked up by the district attorney or prosecution – probably because there are so many cases that merit prosecution!  The various prosecution offices receive funding from the defense community, but don’t kid yourself – it’s not a voluntary contribution.  The State of California takes what it wants from the employers and insurers and distributes it as it sees fit, often times to fund investigation and prosecution of employers and insurers!

Bottom line, dear folks – we should press this reasoning as much as possible to punish and discourage fraud.  There is no reason why an injured worker trying to decide between perjury and self-incrimination should be collecting benefits during his deliberations.

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Michigan Goes Driverless – A Trend is Your Friend!

December 16th, 2016 No comments

Bear with me dear readers – your humble blogger knows you’re only interested in news from California.  In fact, rumor has it that when some of you see a discussion on these hallowed pages regarding anything other than this great state, you may consider plugging your ears and going “la la la la la – I can’t hear  you – la la la la la” until the discussion returns to California.

This behavior is decidedly odd, of course, because this is a written publication, so you can really just not read it… there’s no sound involved…

Anyway, Governor Rich Snyder of the Great State of Michigan (although not as great as California) has signed into law a bill that would allow driverless cars on its roads.

Just think about it, dear readers – this process is happening and, absent a real-life Terminator-style scenario, more states are likely to follow suit.  In fact, given the inherent federal nature of roads and highways, it would not be surprising if, before long, there was a universal federal law in the United States permitting driverless cars.

The implications are astounding, of course – so many jobs would be automated.  Not only would the pool of labor being covered by workers’ compensation policies decrease, but we might see other benefits to the defense community: providing transportation for a worker to medical appointments, QME examinations, depositions… these things can get expensive.  Not every injured worker is willing to take Uber and get a reimbursement.

In those cases, how much cheaper will it be when a professional driver need not be hired for the day, but a driverless car can be dispatched?  Injured workers unable to drive will also have a cheaper claim for in-home care.

In the same way that once, long ago, the common mode of transportation was on horseback, and automotive ownership was an expensive luxury, perhaps owning cars and driving cars through human hands will be considered a skill-based luxury.

Have a good weekend!

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QMEs Must Do Exams in Person – No Emoticon Reports!

December 14th, 2016 No comments

Hello dear readers!

Your humble blogger bids you a very happy Wednesday, and hopes all is well in the world of the blog readers.

One of the wonderful charms of practicing workers’ compensation, at least in the San Francisco Bay Area, is that there appears to be a shortage of court reporters from time to time.  On a few occasions, y our humble blogger has observed trials and expedited hearings being postponed because no court reporter is available – sometimes none are present at all, and sometimes the only ones available are taken by other matters.

To relieve this pressure, the WCAB has started using remote court reporters with the aid of speaker phones and web cameras.  So your trial in San Francisco might be documented by a court reporter in Los Angeles or San Jose.  Fairly decent audio and visual technology has allowed an idle court reporter to fill a need in another part of the state.

As my readers will recall, the same technology, to a very limited extent, is being applied to address QMEs.  The issue of telemedicine was addressed briefly on this blog before but has come up again in Gonzales v. ABM Industries, where applicant declined to be examined by a QME using “telemedicine.”  From the case facts, it appears that the PQME would have examined applicant (presumably) by video and audio, with a local chiropractic QME to do the actual measurements.

Applicant sought to have the panel replaced on the grounds that without having the specific QME listed on the panel perform the face-to-face examination himself, he’s denied a meaningful choice from the panel.

The WCJ ruled that the telemedicine consent form allows applicant to refuse a QME exam through this means.  The WCAB denied removal.

So, just a few thoughts on this issue, dear readers:

How many applicants actually object to a pain management QME with an assist from a chiropractic QME?  Isn’t that an applicant’s dream team?  Perhaps there is more at work here than what is available from the facts of the case – if applicant is continuing to receive TTD benefits (remember, dear readers, that applicants already get practically full control over which PTP they will see), perhaps there is a tactical benefit to delaying the resolution of the file?  Just as easily, could a defendant decide to delay resolution of a file by objecting to telemedicine?

Additionally, while relief was sought on removal, aren’t panel disputes now valid grounds for reconsideration?

Finally, perhaps we need to revise the laws regulating medical-legal examinations.  If a QME exam really is conducted over both audio and video tools, how easy would it be to have the examination recorded?  Everything that was said (and everything that wasn’t said) would be evident to all parties, as would the actual results from any measurements taken.

Your humble blogger submits, once again, that there would be tremendous benefit to legitimately injured worker and the employers and insurers that pay all the bills to have such transparency.

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