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Racial Bias by a PQME?

January 19th, 2018 No comments

Alright, dear, readers, it’s Friday.  You’ve made it once again.  And you are to be congratulated, of course.

You know, when a young man or a young woman sets out on a career in law, we are all prepared to see and hear various things.  We know we will meet people from different walks of life, bringing different cases to our attention.

That being said, there are still certain things that raise eyebrows, even among the seasoned members of the bar such as your humble blogger.

One of these things was recently discussed on Lexis, wherein a neurology PQME had concluded that because of an applicant’s “Negro blood” the PQME had certain expectations for the injured worker’s physique.  Of course, applicant’s counsel sought to strike the PQME’s report and the WCJ granted this request.  The commissioners concurred and the PQME’s reports were stricken and applicant was entitled to a replacement panel.

How, your humble blogger doesn’t like to name names, as we all know, but it’s not that hard to review the panel opinion and find the name of the QME.  I imagine that this particular PQME is going to have some difficulty in future cases where this history of apparent racial bias has been exposed.

However, that being said, we have another case out there – City of Jackson v. WCAB – wherein the Court of Appeal upheld a QME’s apportionment to previously asymptomatic genetic factors causing a spine condition (and/or worsening it).

Now, clearly, there’s a difference between identifying a genetic condition resulting in a more severe impact due to an injury and simple racial bias, relying on racial stereotypes instead of medical findings.

But, as anyone who has read a garden-variety medical-legal report will confirm, even the sharpest medical minds, the steadiest physician’s hands, and the nimblest surgeon’s fingers are of little assistance to the often unintelligible medical reports produced by these great healers and evaluators.

The instant case, Beecham v. Swift Transportation Services, is not decided wrongly.  That being said, it is a warning sign for all of us to make sure that, when necessary, we cure the record to avoid a tongue-tied QME from starting out explaining why a particular applicant’s multi-generational family history of high blood pressure resulted in the permanent disability caused by an industrially injury to be considerably worsened, and thus warranting apportionment… and ending up looking like he’s leading a Klan rally.

Have a good weekend, dear readers!

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Injuries Sustained Driving Back from AME Exam Are Compenseable?

January 17th, 2018 No comments

Happy Wednesday, dear readers!

Your humble blogger hopes you really did get Monday off, but, even if you didn’t, you work in the illustrious field of workers’ compensation – isn’t every day like a vacation?

Right.

Well, allow me to bring you this Pina colada of a blog post to enjoy during your proverbial day at the beach of denying benefits and arguing with lien claimants.

Today’s post is on the case of Minarik v. Del Taco, a somewhat recent panel decision and now writ denied claim, in which the WCJ and WCAB held that injuries sustained en-route to an AME exam on an accepted case were compensable consequences of the underlying injury.

Applicant Minarik was involved in an MVA on her way back from an AME appointment for an admitted injury.  She claimed the injuries sustained as a result of her MVA to be a compensable consequence of her industrial claim, which the defendant naturally disputed.  Defendant relied on Rodriguez v. WCAB, a 1994 Court of Appeal decision which held that injuries sustained from the litigation process were not compensable consequences. In Rodriguez, applicant claimed a compensable consequence psyche injury as a result of the termination of vocational rehabilitation benefits, which the Court of Appeal rejected in that the litigation process is not AOE/COE.

On a personal note, I, as a brave, courageous, and very modest workers’ compensation defense attorney, can attest that the workers’ comp litigation process does give rise to psychiatric injury… at least to the attorneys involved… how often does a father see his child scrape his knee on the playground and involuntarily mutter something like “non-industrial” or “off-duty recreational activity”?

The Defendant also relied on the panel decision in Evans v. San Joaquin Regional Transit District, a 2014 panel decision in which the commissioners rejected applicant’s argument that injuries arising out of an MVA which occurred en route to medical-legal appointment because the medical-legal exam was part of the litigation process for a contested claim.

Well, neither of these cases seemed persuasive to the WCJ or the WCAB commissioners in Minarik.  The WCJ reasoned that because Minarik involved an accepted claim, the medical-legal appointment was more akin to the medical (as in, medical treatment) rather than to the legal (as in, litigation process).

Relying instead on Laines v. WCAB, where the Court of Appeal held, in 1975, that injuries sustained en route to medical treatment are compensable, the WCJ distinguished Rodrigeuz because the compensable consequence injury in that case was psychiatric, whereas in Minarik, the injury claimed was orthopedic.  The WCAB further distinguished the Evans panel case because that case was denied, while the Minarik claim was already accepted.

Naturally, your humble blogger does not like this result?  If we draw a distinction, as the WCAB panel appears to do, between a medical-legal exam to determine AOE/COE and one to determine the extent of permanent disability or the need for further medical treatment, does that mean that injuries sustained to the WCAB for a hearing on those issues should also be held compensable?

If applicant is claiming an entitlement to TTD benefits and is in an MVA on the way to an expedited hearing, should the defendant be liable because the “litigation process” is limited only to AOE/COE determinations and not to nature and extent of benefits owed?  Should applicants be able to claim a cumulative trauma from all the driving they’ve done to their medical appointments?

Members of the defense community, especially those that have been around through more than one reform, tend to comment with some frustration that the scope of employers’ and insurers’ obligations continues to grow.

The one silver lining from this, and it is so thin you have to squint to see it, is that perhaps defendants can use this case to bolster control of medical treatment.  Sometimes applicants challenge the validity of an MPN because there is an insufficient number of doctors within the 30-mile mark of the applicant’s residence or employment site.  However, other times, applicants seek to treat with physicians 40 or 50 miles away when there are plenty of physicians much closer.

The potential for exposure for injuries sustained en route to these far-off treatment locations presents an argument for denying PTP requests for far-away physicians.

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Happy MLK Day 2018! Today IS a Court Holiday (FYI)…

January 15th, 2018 No comments

Happy Monday, dear readers, and happy Martin Luther King Jr. Day!

Martin Luther King Jr. Day is observed on the third Monday of every January and is a state holiday (at least in California), so, aside from whatever personal observance we might plan, California Rules of Court 1.10, any due date or deadline from today is extended until the next working day, or tomorrow, January 16, 2018.

Now, bear in mind, dear readers, although the courts may be closed today, a lot of folks are still going to be in the office.  I know of some depositions set to go forward today and plenty of employers who are not giving their employees the day off.

For that reason, it’s always important to rely on the official court holiday list to determine if the last day to take a particular action (file an appeal, file an answer, request a panel, etc.) must be done on that day.

For example, did you work on December 31, 2017?  Well, it’s not a holiday according to the courts – only New Year’s Day is (January 1, 2018).

Whenever there seems to be a split in your social and professional circles about whether something is a holiday or not, your humble blogger respectfully suggests you confer with the court calendar to make sure you really do have the day off!

In any case, happy Martin Luther King Jr. day!

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AB1749 – Out-of-California Police Activity to be Compensable

January 10th, 2018 No comments

Alright, dear readers, you remember the story of those Orange County Deputies that sustained serious injuries at the Las Vegas shooting?

Well, Orange County denied their claims on the theory that the injuries were sustained while outside of California, and thus non-compensable.

Well, Assemblyman Tom Daly has introduced an amendment to Labor Code section 3600.2 to include injuries sustained by law enforcement officers within or out of the state (Assembly Bill 1749).

If signed into law, hopefully the fears expressed in this case – that law enforcement officers would hesitate to spring into action while out of the state – would be dispelled.

Here’s hoping that 2018 sees a legislature that is sensitive to the snags and issues we face in the workers’ compensation world and gives us prompt (and thoughtful) amendments to the law.

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Happy (Belated) 2018!

January 8th, 2018 No comments

Hello my beloved readers! And a very, very happy 2018 to you!

Your humble blogger is back, at least for now,

So what’s new in 2018?  Well, here are a few things to look out for.

Minimum wage in California has gone up (of course!) and is now $10.50 ($11.00 for employers with more than 25 employees).  Now, bear in mind, in some places, like your humble blogger’s own, beloved San Mateo County, the minimum wage is as high as $13.50 per hour.  If you have a minimum wage employee currently on temporary disability, there’s a good chance you’ll see a demand for an increased rate.

Speaking of the TTD rate, as the State Average Weekly Wage saw a 3.6% increase, going from $1,164.51 to $1,206.92, anyone paying life pensions may want to calculate an increase based on COLA.

There’s also an increase in the TTD minimum, from $175.88 to $182.29.

What are you hoping to see in 2018? (let’s be realistic folks – from the litigation and legislation cookeries).

My wish list for 2018 includes:

  1. Some binding authority that vocational rehabilitation experts are irrelevant for post 1/1/13 injuries, as diminished future earning capacity is not part of the permanent disability equation;
  2. A reversal of the recent legal trend recognizing any “forceful blow” or any slip-and-fall as a violent act triggering liability for psychiatric compensable consequence disability (permanent OR temporary); and
  3. The birth of a new trend in which the medical unit issues panels with three doctors that set timely (I know this is a long-shot, but we can dream, can’t we?)

But, post important of all, I think we should all find 2018 to be full of success, good health, and happiness.

Let’s get to work!

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ER Pleads Guilty for WC Fraud

December 6th, 2017 3 comments

Alright, dear readers, it’s Wednesday.

As your humble blogger is always looking out for your best interests (even you lien claimants – may these blog pages encourage you to renounce your life of chaos and destruction to pursue more benign efforts) let me give you a bit of practical, every-day wisdom you can carry with you in your pocket.

If you’re like me, when you somehow end up at a party, whether taking your kids to a birthday for a classmate or not declining a friend’s invitation to a soiree in time and now being socially obligated to go, you might struggle with conversation topics.  After going through your list of canned puns and references to The Big Lebowski (great movie by the way), you might struggle for something to say.

So here’s one we should ALL talk about with all of our friends and relatives, especially as we’re all trying to decide which New Years’ Resolution we want to make and promptly abandon.

STOP ENGAGING IN WORKERS’ COMP FRAUD!  A kind and benevolent colleague, tragically committed to the applicants’ bar, sent me this article of a father-and-son team that just recently plead guilty to various insurance fraud charges.

As alleged, these two concealed injuries from insurers, denied medical care and benefits to their injured employees, and lied to insurers about those various variables that are used to calculate one’s premiums.  If that wasn’t enough, the nature of their business was to provide farm labor to farmers in California, allowing their customers to underbid competitors that provided actual coverage and benefits for their employees.

I’ve had applicant attorneys (you know … the three of them that read this blog) chide me at the WCAB for only pointing out injured worker fraud while turning a blind eye to employer-side fraud.  Nothing could be further from the truth.

Your humble blogger regards employer fraud is another evil as well.  Employers who lie or cheat to avoid paying the proper workers’ comp coverage shift the costs onto other policy holders with their insurer or put pressure on honest employers to cheat to keep their prices competitive.

On the bright side, this is a relatively temporary ill.  As automation of labor, especially farm labor, proceeds apace, we can expect to see this issue lose its relevancy – robots can’t claim workers’ comp.

So, again, dear readers – please tell your friends and family (and tell them to tell theirs) that if someone mentions starting a business, remind them that it’s absolutely necessary, in California, to have workers’ compensation coverage for all employees.  And as you shop for fruits and veggies for your next dinner, ask yourself in the difference in price between the selections might possibly reflect a farm that is illegally not paying for workers’ compensation coverage for its employees.

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COA: Writ of Review Denied on Another Forceful Blow = Violence Case

December 4th, 2017 No comments

Happy Monday, dear readers!

Your humble blogger brings you a rather unfortunate writ denied case this morning, that of Greenbrae Management/SCIF v. WCAB/Torres.

This is yet another in those long line of cases where the applicant prevailed on the theory that a “forceful blow” was sufficient to satisfy the “violent act” requirement of Labor Code section 4660.1.

In this case, applicant sustained an admitted injury in 2014 when he fell 20 feet from a tree he was trimming.  The question was, of course, whether applicant should be entitled to increased permanent disability based on the psychiatric injury resulting as a compensable consequence from the fall.

The WCJ ruled that a fall from a tree was not a “violent act” and thus, as there does not appear to be proof that the injury was “catastrophic”, the additional psyche-based PD was barred.  The WCAB reversed and the Court of Appeal has now denied review.

Your humble blogger previously articulated the argument that if a “forceful blow” was sufficient to satisfy the definition of violent act as contemplated by the labor code, then every forceful blow would be an “extraordinary” employment event, as previously defined by the Court of Appeal, so the 6 month employment rule would never work to bar a fall or being hit forcefully.

Here’s hoping that we get some contrary and binding guidance soon.  The WCAB’s reasoning that this doctrine is consistent with legislative intent to limit compensable consequence psyche injuries is weak medicine for defendants, who now see everything short of a cumulative trauma being claimed as either a “violent act” because of its forceful mechanism or “catastrophic” in its effect on the injured worker.

In the meantime, your humble blogger respectfully submits that we should continue litigating these cases.  A forceful blow is not a violent act – at last not according to any binding authority.  If the Court of Appeal had to issue a published opinion concluding that a wet sidewalk is not “extraordinary” on a rainy day, perhaps it will also have to issue a publish opinion clarifying that a violent act, within the meaning of the Labor Code, requires a third-party with intent to do harm (or something of a quasi-criminal nature).

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2 WCAB Dep. Comm. Positions Available – Apply Now!

November 27th, 2017 No comments

Happy Monday, dear readers!

Your humble blogger truly hopes you had a restful and meaningful Thanksgiving holiday.  If you didn’t, I imagine that your inbox is currently stuffed with auto-reply e-mails admonishing you for continuing to work as people got on with Grateful Thanksgiving Thursday, Frenzied Shopping Black Friday, Regret and Shame Saturday, and Gearing-Up-For-Cyber-Monday Monday.

Well, as the saying goes, “Christmas came early” and your humble blogger brings to you news of an excellent opportunity.

The WCAB, probably tired of having to shovel petitions for recon and removal out of their way to get to work, has announced openings for two deputy commissioner positions.  The pay looks good and if you’re a practicing attorney now, you might get to shift your focus from scorched Earth applicant’s practice or delay-and-deny defense practice to craft some meaningful guidance for the workers’ compensation community.

Seriously guys – there are empty seats for the commissioners’ bench and two vacancies for the deputy commissioners.  Perhaps it’s time someone took a break from litigating panel disputes and calculating interest on $294 in unpaid TTD to make a positive change.

We could use some decisive rulings on whether post 1/1/13 injuries still allow for vocational rehabilitation reports and rebuttals, or whether compensable consequence psyche allows temporary disability benefits in non-violent cases.

If you’re ready to make a change, submit your application before the deadline (December 4, 2017).

As for me, aside from doubting my own qualifications for the job, no doubt I would have to surrender my cheerful and witty commentary as part of the position, and so I shall remain, as I ever have been, your humble blogger.

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Happy (Early) Thanksgiving!

November 17th, 2017 1 comment

Happy Friday dear readers!

As the Thanksgiving festivities are coming up, your humble blogger, ever the wise and learned counselor, reminds you to buy a turkey NOW before it’s too late!

In any case, as it appears a growing number of people are taking all or most of next week off, I wish you a restful Thanksgiving, one that is detached enough from our daily labors and trials to allow reflection for how much worse things could really be, and how fortunate we all are to have what we have.

Despite our daily protestations of the cruel burdens the workers’ comp system places on employer and employee alike (and, let us not forget that most tragic of victim — the workers’ compensation attorney), overall, things are pretty good, and the fact that they might be better in no way dulls the fact that they could be far worse.

All the best, from your most humble of bloggers!thanksgiving3

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COA: Knowledge of WC Rights Precludes Need for Claim Form (Unpublished)

November 15th, 2017 No comments

Happy Wednesday, dear readers!

Your humble blogger hopes your week is proceeding at a quick pace, and that you are clearing off that to-do list so that you can have a restful and meaningful Thanksgiving Holiday.

In the meantime, your humble blogger brings you an interesting if unpublished decision (it’s interesting to your humble blogger, anyway).  Remember folks – if you cite an unpublished decision in California you will be thrown in a gulag and will get no potatoes this winter!

The matter is that of Bolanos v. WCAB and Jimenez.  Mr. Bolanos was a building owner who hired a certain gentleman, Aragon (not to be confused with Aragorn, King of Gondor, one the last of the Numenor and heir to Isildur), who had an otherwise valid contractor’s license but had allowed his workers’ compensation insurance to lapse.

When an employee, Jimenez (“applicant”), sustained injury during the work being performed for Mr. Bolanos, Jimenez sought benefits from Aragon, who later declared bankruptcy, and then from Mr. Bolanos, who was the technical employer by operation of law.

Now comes the fun part – While applicant filed an application for adjudication some 3 months after the date of injury, he did not actually sue Bolanos until 2011, around the time when Mr. Aragon declared bankruptcy.

Furthermore, even though an application was filed shortly after the injury in 2003 naming Mr. Aragon as the employer, and UEBTF was joined less than a year later in 2004, Mr. Bolanos was not joined as a party defendant until 2009!

Mr. Bolanos then asserted that latches and the statute of limitations barred any claims against him.

The WCJ ruled in favor of applicant on the statute of limitations defense, arguing that just because the attorney knew that Mr. Bolanos was the property owner, did not mean that he knew Mr. Bolanos would be the ultimate employer.

Mr. Bolanos’ petition for reconsideration also did little to help his case, as the split panel concurred with the WCJ.  The dissent, however, reasoned that allowing this claim against Mr. Bolanos to proceed now, joining him some six years after the date of injury, would encourage more stale claims to be presented.  Also, because applicant had an attorney that was aware of Mr. Bolanos’ position in the case, the claim should be barred by the statute of limitations.

The Court of Appeal granted review and in an unfortunately unpublished decision reversed the WCAB majority and the WCJ.  The Court then went on to apply a 1-year statute of limitations.  Citing McGee Street Productions v. WCAB (2003), the COA noted that a new defendant cannot be added after the statute of limitations has run.

Furthermore, the statute was NOT tolled because more than a year prior to adding Mr. Bolanos as a party, applicant was aware of his rights to file a workers’ compensation claim as evidenced by the fact that he pursued these rights by filing a claim against Aragon.

Here’s my favorite part of the ruling, however.  UEBTF argued that Mr. Bolanos was required to provide applicant with a claim form.  The Court of Appeal ruled that a claim form must only be provided “where the employee does not know of his right to file a claim… Here, although Bolanos never complied with section 5401, Zapata’s filing of a timely workers’ compensation claim demonstrates he was not ignorant of his rights.”

Happy Wednesday!

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