WCDefenseCA

Happy Monday, dear readers!  Let’s take a hypothetical situation – parties convene for an MSC on an admitted injury.  The AME finds WPI which rates to 45% PD, but apportions 66% of that PD to non-industrial factors.  Defendant naturally expects an award of 15% PD, right?

But, horror of horrors, the WCJ finds that the AME’s opinions on apportionment are not substantial medical evidence!  What should the defendant do?

Well, why not ask to develop the record further so that the AME can clarify the given opinions on apportionment?  As my good friend Gunter would say, wo ist deine autoritat?   

Defendant’s bear the burden of proving apportionment, right?  If we can’t get that done at trial, too bad, so sad, and we’re stuck, no?  Well, now we have at least one panel decision to help us argue that, should the WCJ find that a medical-legal opinion as to apportionment does not constitute substantial medical evidence, the record should be developed.

In the recent panel decision of Sutherland v. Gold Trail Union School District, the AME initially issued a report apportioning 25% of applicant’s permanent disability to prior problems with her shoulder.  However, in a subsequent report issued after reviewing medical reports, the AME found that 50% of the permanent disability should be apportioned to non-industrial factors. 

The WCAB wrote that “we see that [the AME] did not explain the basis for the change in his opinion regarding apportionment of applicant’s right shoulder disability, but more importantly, in none of his reports did he explain how and why the pre-existing factors were causing permanent disability at the time of the evaluation, nor how and why those factors were responsible for 50% of applicant’s right shoulder disability.”

The WCAB invoked its authority to develop the record to send the matter back to the trial level and back to the AME to clarify the record!  Your humble blogger is happy enough with the result, but shouldn’t this panel decision be cited going forward?  If defendant does not carry its burden of proving apportionment in that the evidence offered is not substantial medical evidence, defendants should request an opportunity to develop the record as contemplated by the Sutherland panel decision.

Now, before we all get excited and start carrying the humble blogger around on our shoulders cheering his dry wit and bow ties, let’s remember that panel decisions are not binding authority and provide guidance to trial judges only.  Ideally, we will all go into trial with ironclad opinions on apportionment that are clearly substantial medical evidence.  But, should that not turn in our favor, the Sutherland panel provides for development of the record on the issue of apportionment.  What’s good for the goose, after all, is good for the gander.

What do you think, dear readers?

Happy Monday, dear readers!  Your humble blogger has reacted enthusiastically, over the years, to the prospects of automation.  But recently, I came to the realization that it is possible to have too much of a good thing.  We have to draw the line somewhere, and automating attorneys out of their jobs is completely unacceptable.

Fortunately, it may be some time before employers, insurers, and even applicants get to avoid the incomparable pleasure of having to interact with live attorneys. 

CBSNews is reporting that an attorney used ChatGPT to prepare a court filing and ChatGPT just made up cases that don’t exist and cited them for the filing.  The attorney now faces the prospect of sanctions. 

Your humble blogger has dabbled with ChatGPT and found it completely unreliable.  For example, ChatGPT seemed completely unable to explain how Labor Code 132a works.   Julius Young, Esq. of WorkCompZone also had some fun reactions from ChatGPT.

Likewise, ChatGPT is not going to replace adjusters.  While perhaps it can render some basic assistance to a human such as acting as a more versatile search engine, the technology is simply not there yet.

So, we can rest easy, dear readers – our jobs will remain secure for now.

As for those of us to who are interested in leaning on ChatGPT, please be thorough in verifying everything you get from it.  Pretend that you have a new employee, just out of school, that brough a five-year-old to work who is named “ChatGPT.”  While it might be pretty cool to get such crafty ideas so quickly from ChatGPT, trust but verify.

In the meantime, your humble blogger remains the old-fashioned flesh-and-blood-but-lacking-a-heart defense attorney he has always been.

EDIT: 06-05-2023 — reader Hillary S. makes a great point, citing the panel decision of Zenner and the 8 CCR 10205.6, which provides that, absent an agreement between the parties to accept service via any method, but, absent such an agreement, the default would be by first class U.S. mail. However, your humble blogger would point out a few items on this:

1. The regulations cited below still require disclosure of an e-mail address for an attorney as part of a Notice of Representation;
2. 8 CCR 10205.6 predates current 8 CCR 10625 by about 7 years; 10625 appears to be the most recent law and the two regulations are potentially in conflict, although the Zenner case (2022 Cal.Wrk.Comp.PD Lexis 324 harmonizes both by holding that 10205.6 still controls absent an agreement

Thank you to Hillary S for pointing this out!

Your humble blogger bids you a happy Friday, dear readers, and hopes this weekend has wonderful things in store for you! 

But, let me ask you a question before you check out for the next few days.  A question which you will undoubtedly have you yelling “not no, but heck no!” into your computer screen (or phone, or tablet ,or what have you). 

Have you ever asked opposing counsel for an e-mail address only to be told “we don’t do e-mails”?  Well, those of us who have been around a while remember when there was some initial resistance to e-mail correspondence, but recently?  With the pandemic?  IN THIS ECONOMY?!?  Just about everyone is on board with e-mail communication.

This is great for a lot of reasons – this saves on costs: paper, postage, clerical labor, and storage.  Also, there is zero doubt as to when the correspondence was sent and received.  It is all upside, no?

Well, recently, I encountered one of those rare hold-outs that refuses to use e-mail for communication related to litigation.  At a deposition of an applicant I asked opposing counsel for an e-mail address and was rebuffed: “we don’t do e-mails!”  Having come to this country as an immigrant, I always harbor some hidden doubt as to my English skills, so at first I thought I misunderstood.  But no, applicant’s counsel doubled down and refused to provide an e-mail address.

Well, as uncle Ivan used to say e-mails “not optionary!”  8 CCR 10625(b)(2) specifically provides that service may be made via e-mail.  If a party may serve via e-mail, other parties cannot refuse to accept service via e-mail, and thus must provide an e-mail for service.

But more than that, representatives appearing before the WCAB must file appropriate Notice of Representation.  8 CCR 10400(b)(3) specifically provides that an attorney’s notice of representation “shall include … the … e-mail address … o the law firm or other entity’s agent for service of process.”

Without a valid e-mail address, presumably, the notice of representation would be incomplete and defective.

What do you think, dear readers?  Are you one of those that refuses to provide an e-mail address to opposing counsel?  If you are… how are you reading this article?  Have you encountered any such folks in your travels?

Let your humble blogger know, and have a great weekend!

Your humble blogger, dear readers, is a big fan of the AMC series Mad Men.  I swear I’ve watched the entire series through at least half a dozen times and enjoyed it every run.  The first episode of the series is called Smoke Gets in Your Eyes, about the main protagonists efforts to create an advertising campaign for Lucky Strike cigarettes.

Now, why is your humble blogger bringing this up?  I assure you, no change in career from law to advertising is being announced, and, rest assured, your humble blogger’s smiling and bow-tied photo will not be replacing camels, cowboys, or any tobacco mascot. 

But while smoking poses dangers, more or less everyone seems to be aware of those now adays.  Yet there is another source of smoke that is getting in the eyes of the workers’ compensation community.  Marijuana is continuing to be an issue for comp.

Whether it is legal or not, there is, after all, some conflict between state and federal law; and whether employers can be compelled to provide to employees, on an industrial basis, marijuana as a form of medical treatment remain open questions in California. 

Unfortunately, we have a new study released by Quest Diagnostics showing that in the US Workforce in general, “testing positive for marijuana following an on-the-job accident increased to its highest level in 25 years in 2022.” 

Are workers just being tested more often than they were before, or is there a higher frequency of use of marijuana than in years past?  Furthermore, is this higher use of marijuana the cause of injuries in the workplace?  If so, Labor Code section 3600(a)(4) provides an affirmative defense to such claims, but the burden of proof remains on the defendant, and offers no defense if one employee’s marijuana-fueled injury causing harm to other employees.

As social attitudes towards marijuana continue to change, employers are placed in a difficult position of keeping employees safe while complying with California’s laws regarding marijuana use.  For example, AB-2188 was signed into law by Governor Newsom in 2022 and takes effect January 1, 2024, makes it unlawful to discriminate based on off-the-job use of marijuana. 

While the law excludes those in the building and construction trades, and also does not “permit an employee to possess, to be impaired by, or to use cannabis on the job” one of the most effective ways of ensuring employees are not under the influence of marijuana while on the job is to decline to hire employees who use marijuana recreationally at all.

As if California’s employers did not have enough to contend with, the growing instance of marijuana related injuries and the state of California’s restrictions on addressing that trend certainly don’t make things any easier.

Puff, puff pass, dear readers… straight on till next time!

Happy Monday, dear readers!

Your humble blogger would like to wish you a solemn and reflective Memorial Day, 2023.  As we know, Memorial Day is a time to commemorate those patriots that sacrificed their lives in the service of our country, the United States of America. 

While days off from work are wonderful, BBQs are lots of fun, and sales are very exciting, let’s do our best not to lose sight of why we are celebrating and what we are commemorating.

Now, for the folks keepings score at home, Memorial Day counts as a “holiday” for workers’ compensation purposes.  CalHR recognizes Memorial day, as does Government Code 6700 and the California Supreme Court.  Accordingly, a deadline to any action a party would have to take on Monday, May 29, 2023, is extended to Tuesday, May 30, 2023.

Your humble blogger will see you here, bright and early, Wednesday morning for another blog post.  But hopes that your Monday can be meaningful as well as restful.

Well, my beloved readers, we made it to another Wednesday.  I know, I know, you woke up this morning wondering if your humble blogger was going to hit you with a reference to Wednesday Addams, or perhaps a camel for hump day?  But such trivialities are not appropriate for such a serious, and august blog, be it ever so humble.

So, instead I will just make a casual reference to Woden and leave it at that. 

But you’re clearly not reading this blog for an etymology lesson.  You’re reading it for updates on California workers’ compensation world (either that or you noticed that I have disabled and removed the “unsubscribe” button so now you’re stuck with me).  So, let’s get to it!

Today’s post is on the split panel decision Hernandez v. Ventura Post Acute.  The WCJ relied on the PQME’s opinion to award 45% PD after applicant sustained a fall.  However, applicant sought reconsideration, demanding the WCAB instead find her permanently and totally disabled based on an Ogilvie rebuttal of the PDRS.

Applicant offered evidence from her vocational rehabilitation expert that she was not amenable to rehabilitation and totally precluded from the workforce.  The WCAB majority granted applicant’s petition and substituted a new award for permanent total disability.

The majority was persuaded by the analysis offered by applicant’s vocational rehabilitation expert as to the work restrictions.  The way those restrictions were interpreted, applicant argued, there was no feasible job available – even a sedentary one.  For example, the VR expert interpreted the QME’s prohibition on bending and stooping as precluding any job, even sedentary, that would require the occasional bending to reach a low filing cabinet or pick up a dropped item.

Even though the QME assigned apportionment, 67% non-industrial, the WCJ rejected that opinion at trial, so the VR expert’s opinion was not challenged on apportionment grounds either.

The dissenting opinion pointed out that a preclusion from bending, stooping, or twisting referred to precluding any job that required these activities, as opposed to the occasional and incidental movements along those lines.

Just imagine how much whiplash this case must have caused?  To go from a PQME report that rated 15% PD ($14,645.00) after apportionment on its face to having the apportionment rejected at trial and facing an award for 45% PD ($68,440.00) to having the WCAB issue a permanent total disability award…

Now your humble blogger has no inside knowledge about this case, and it’s entirely possible that the following was explored, but generally speaking, there are a few things defendants can consider.  For starters, if the QME is offering apportionment of permanent disability, and applicant is seeking VR evidence, one can ask the QME if the specific work restrictions, rather than just the permanent disability, are caused in part by non-industrial or prior-industrial causes.

Furthermore, if defendants feel that the restrictions offered by the QME are being exaggerated or misinterpreted by the VR experts, a supplemental report can be sought from the QME to comment on the VR report and ask if the interpretations of the QME’s restrictions are correct or if they need to be rephrased. 

Neither of these options were discussed in the WCAB’s majority opinion, nor in the dissent, so perhaps they were attempted and came to naught.  But, in any case, this opinion should make us defendants mindful of how quickly a case can decay from a 15% PD rating to a permanent and total disability award.

What are your thoughts, dear readers?

Happy Monday, dear readers!  Your humble blogger has a question for you… a riddle if you will.  What is a pirate’s favorite part of California workers’ compensation?

1. Labor Code 4662 (because of all the hooks and eye patches, etc.);
2. Lien litigation (because of legalized piracy); or
3. IM… wait for it… Arrrrrrr!

The answer is obviously C, but I would have also accepted U… wait for it… Arrrrr!

Now that you’re done rolling your eyes at me, let’s take a look at how IMR is doing.

The CWCI has a new report on IMR out, and the results are pretty favorable to the defense community.  IMR volume peaked in 2018 but has steadily declined to an all time low since the program started as part of SB-863.  In 2022, there were 127,215 requests for IMR as compared to 184,735 requests in 2018.  The cost of IMR is $345, so imagine the savings to defendants represented by the drop in IMR requests – almost $20 million!

And, of course, that’s just the cost of IMR alone, not to mention all the unnecessary treatment that defendants were not forced to pay for.

The other interesting statistic is the IMR uphold rate – 2022 saw an uphold rate of 91.1%, down from 92% the year before.

What does this mean?  Well, as the system stands right now, odds are very high (as in 91.1% likelihood) that a UR determination will stand.  That is why it is so important for defendants to conduct timely and technically effective utilization review of RFAs, which includes not only timely responses but also proper and timely communication of the results to the parties involved (AA, requesting doctor, etc.)

What else does it mean?  Sacramento sees a fortune of costs being avoided by employers and insurers and is working diligently to prevent those savings, or, at the least, curtail them as much as possible.  Efforts are under way in Sacramento to require all UR physicians to not only be licensed in the relevant specialty as required for the RFA, but also to be licensed in California. 

There is clearly no purpose to this other than to make UR more expensive for employers by limiting the pool of physicians available to conduct UR.  Likewise, as discussed previously on this most humble of blogs, Sacramento is attempting to increase TTD for those 8.9% of IMR results that reverse the UR determination, extending TD beyond the 104 week cap for periods spent awaiting an IMR reversal.  At present, there is little enough incentive for AAs to request IMR, let alone litigate any technical deficiencies in the IMR results, knowing that less than 10% of those decisions will be reversed.  The prospect of an extra 2 months of TD will provide plenty of such incentive. 

SB863 went into effect more than 10 years ago now, and while it failed to eliminate Ogilvie explicitly, and, sadly, failed to eliminate Almaraz/Guzman as well, limiting the jurisdiction of the WCAB to reverse UR and instituting the IMR process is likely proving to be one of the biggest cost-saving measures for California’s employers.

Avast ye mateys!  Wednesday ahoy!

There are all sorts of parties we might encounter in our day-to-day lives, dear readers; political parties, birthday parties, graduation parties… the list goes on and on.

But, in our beloved swamp of workers’ compensation the “party” is pronounced “par-tay” and the type of par-tay that gets everyone excited is the ex parte. 

But we’ve had a long history of deciding what is and is not ex parte communication.  Originally, ex parte literally meant only communicating with one party.  But, as the same sick and distorted evolutionary track that yields the platypus, nature’s joke, ex parte in workers’ compensation means so much more than it should.

When touching on ex parte communication with a med-legal examiner, AME or QME, ex parte is defined under Labor Code section 4062.3 which details the procedures for what constitutes ex parte communication and what does not.  For example, sending medical records to a QME at the same time as to opposing counsel could constitute ex parte communication, if it is before an examination.

But there are certain communications with medical-legal examiners which are NOT ex-parte.  For example, 4062.3(f) holds “communications … relative to nonsubstantial matters such as the scheduling of appointments, missed appointments, the furnishing of records and reports, and the availability of the report, do not constitute ex pate communication in violation of this section unless the appeals board has made a specific finding of an impermissible ex parte communication.”

So, let’s look at a recent panel decision, Reynolds v. Hostess Brands, a recent panel decision.  The WCAB adopted the WCJ’s report so we don’t have much guidance from the commissioners, but the facts present an interesting scenario with some concerning implications.

On its face, the Reynolds question asks – is correspondence regarding the payment of the AME or QME’s bills “nonsubstantial” as contemplated by Labor Code section 4062.3(f)?  Therein, the AME requested pre-payment for a deposition, which defendant paid.  However, when applicant’s counsel “sought to travel out of state to enjoy the MLB World Series” and requested a change in deposition date, the AME would not agree to refund the amount paid.  Applicant’s counsel then claimed the amount paid for the deposition was “in excess of fee schedule” and, according to the WCJ’s opinion on reconsideration, “in no uncertain terms accused Defendant of paying fees in excess of the fee schedule to attempt to sway [the AME] to provide a more favorable opinion.”

Did defendant’s payment of the deposition fee constitute an impermissible ex parte communication because the payment was not copied to applicant’s counsel?  Or was this a “nonsubstantial matter” as contemplated by Labor Code 4062.3(f)?

Well, the WCJ found that payment of a deposition fee is NOT “insubstantial” and applicant’s counsel should have been copied on the communication for payment.

The WCAB denied reconsideration and incorporated the WCJ’s opinion, with then net result of defendant having to pay for a whole new med-legal. 

What can we take away from this?  Well, for starters, it appears the WCAB is signaling to us that communications involving payment of bills, especially deposition fees, must be communicated to the other party.  However, as the WCJ’s opinion notes, the parties are well within their rights under California Code of Civil Procedure section 2034.450(a), to issue payment at the commencement of the deposition, regardless of the polices of the med-legal. 

Pursuant to CCP 2034.430(b), it is the party desiring to depose the expert that shall pay the expert’s reasonable fees for the deposition.  Accordingly, if applicant’s counsel wishes to depose the med-legal, applicant must first pay the med-legal costs for the deposition and then seek reimbursement from the defense.

Well, when applicant’s counsel sets the deposition of a med-legal, can defendant claim impermissible ex-parte communication if applicant’s counsel fails to bring a copy of the check to hand to defendant at the same time as to the medical expert?

Furthermore, in this Reynolds case, it appears that applicant’s petition to strike the AME was copied to the AME.  What happens when an applicant attorney accuses the med-legal of being bribed by the defense, but fails on the petition to strike?  If the WCAB rules that there was no impermissible ex parte communication, applicant’s counsel is in a position to demand a replacement anyway – as the well is now poisoned for making the allegations.

This is not far from a man accused of murdering his parents asking for leniency as, after all, he is now an orphan!

The net result of the Reynolds case has serious implications for a seriously flawed med-legal system as it is.  If the WCAB does not punish this behavior, we can expect to see more of this tactic.  We can also expect to see more litigation regarding what constitutes “impermissible ex parte communication.”  If the med-legal sends his bill for a deposition only to the defendant, do we need to get a new med-legal?  If applicant’s counsel is not copied by defendant’s interpreter vendor sending a confirmation notice, is that sufficient to strike the QME?

Perhaps it really is time for the workers’ compensation community to take stock and review whether the 2005 creation of the QME panel system, rather than allowing parties to retain their own experts, has shown to be a net positive or a net negative. 

What do you think, dear readers?

Happy Wednesday, dear readers!

Your humble blogger has the misfortune of reliving, frequently and without reason, some of his more awkward moments.  Some as early as my formative years, some more recent.  It’s never a pleasant experience and I would rather not – but awkward is as awkward does. 

Like those awkward memories, COVID19 is going to remain with us, and make us fairly unhappy, for years to come.

When defending a COVID19 case, though, the most obvious argument against compensability is that the exposure and infection occurred outside of the workplace, no?  Given that employees naturally have privacy rights, trying to establish exposure outside of the workplace can be a challenge, certainly.

What better way to get the information about applicant’s non-work activities than to ask those living with applicant?

Well, that is the subject of the panel decision in Labella v. Marathon Petroleum, a panel decision issued by the WCAB late last month.

Applicant alleged injury in the form of COVID19 related illness while employed by defendant.  Defendant then sought to compel the testimony of 3 witnesses who all, as claimed by defendant, lived with applicant.  The petitions alleged the depositions were necessary “to obtain details of [applicant’s] possible exposure to COVID at home.”

Sounds reasonable, no?  If one of the witnesses testifies to coming home with COVID19 from a trip several days before applicant showed his first symptoms, wouldn’t that be relevant to the AOE/COE determination?  Likewise, if no one at home had COVID19 symptoms prior to applicant showing his symptoms, wouldn’t applicant’s counsel be chomping at the proverbial bit to have those witnesses testify under oath and state this fact?

Well, the WCJ denied the petitions, reasoning “this court is unaware of any basis or jurisdiction for compelling a non-party to appear for deposition.”  Defendant then sought removal.

The WCAB granted removal and sent the matter down for further development of the record, but did not reverse the denial of defendant’s petition out of hand.  So, unfortunately, we do not have the fiery and affirmative right to depose family members regarding COVID19 cases.  However, the commissioners did provide some guidance.

The commissioners referred the parties to Labor Code section 5710, which allows the appeals board to cause the depositions of witnesses who need not be parties to the case (“a workers’ compensation judge, or any party to the action or proceeding, may … cause the deposition of witnesses residing with or without the state…”).   The opinion rejects the theory that only the employer’s employee witnesses may be so compelled.

The opinion further notes that the WCJ is empowered to issue protective orders, but that generally the WCJ and the WCAB can order non-party witnesses to sit for deposition.

So, while not definitive or controlling, it does signal that at least 3 WCAB commissioners appear inclined to allow defendants to depose family and co-habitants of COVID19 claimants.

Your humble blogger would add some more food for thought – when we go down this road, we will inevitably run into issues of spousal privilege.  Whether communications between spouses can be offered into testimony, or, more importantly, being called as a witness at all (see Evidence Code 970).  But, we don’t only live with our spouses alone.  Children, roommates, grandparents, parents, etc., do not qualify for the privilege under EC 970. 

Although, hopefully, cases of COVID19 infection become less frequent, and the litigated cases related thereto become less frequent still, we will continue to see these cases crop up now and again.

Till next time, dear readers!

Happy Monday, dear readers!  It’s another beautiful week in paradise.  We’ve celebrated Cinco de Mayo, and, as we are clearing away signs of those festivities, we are getting ready for Mother’s day this Sunday.  In this world of uncertainty, dear readers, you cannot expect another reminder that Mother’s Day is coming up this Sunday, May 14.  It might already be too late, but do try to make those lunch reservations, order those flowers, and set aside time to give your mother a call. 

I think if our dear friends and family members were to visit us in California, they would expect to see certain things.  If they were here for a week without Sacramento trying to crush another swath of California’s businesses, they’d feel like they missed out.

So, it only makes sense that we take a look at Assembly Bill 1213, which just passed through committee at the end of April.  What does AB1213?  Well, what doesn’t it do?!?

A lot, to be fair, but primarily AB1213 exempts any periods of TD pending IMR review of treatment (and eventual overturn) from the TTD cap of Labor Code section 4656.

So, let’s take a scenario.  Applicant has a DOI of 1/1/2020.  He goes on TD and his TD would be exhausted by 1/1/2022, as per 4656(c).  Well, if applicant’s PTP submitted an RFA on 3/1/2020, and UR came back with a denial on 3/6/2020, all the periods from that 3/6/2020 denial to the IMR overturn would not count towards the 104-week cap.

What do we need to do if AB 1213 becomes law?  Well, in every file, we set reserves and value cases based on a range of exposure, factoring maximum exposure of course.  How can defendants adequately set reserves or value cases for settlement when there is almost a perpetual TD range?

It’s not all doom and gloom, of course – in 2021, IMR upheld 92.8% of UR denials.  The ultimate impact is going to be limited.  But this isn’t the only squeeze California’s employers and insurers are feeling from Sacramento.  There seems to be pressure from every end to make $100 in payroll more and more expensive for businesses in California. 

Now, if life was fair and California was interested in seeing justice for both employer and employees, when IMR denies a method of treatment, and the PTP has no other suggestions that are likely to change applicant’s condition substantially in the next year, as contemplated by 8 CCR 9785(a)(8), then we would also have regular findings that applicant is P&S retroactively to the date of a UR denial, once the IMR appeal has been exhausted.  We would also have TTD overpayment credit as a matter of right, rather than judicial discretion. 

What is good for the goose is good for the gander, after all, no?

But instead, we see a continuous stream of policies and rulings that disproportionately favor applicants at the expense of defendants in Workers’ Compensation.  My beloved readers, the secret to youth, I have found, is to maintain that adolescent naivete which objects to injustice and life being unfair.  That is how your humble blogger maintains feeling like a 20-year-old.

Like so many other recent results from Sacramento, AB1213 seems worthy of watching.  But, likewise, we can watch the cost of doing business in California as it continues to rise.