As we head into the weekend, your humble blogger brings you a brief update on the See’s Candy case. As my beloved readers will recall, in the matter of Ek v. See’s Candies, the Court of Appeal held that plaintiff-widower can proceed in a civil tort action against her employer on a theory that her employer’s negligence caused her to transmit COVID19 to her husband, resulting in his death.
Anywho, all eyes were on the Supreme Court to see if there would be a new floodgate of asbestos-like litigation with employers researching the family tree and domestic living situation of every employee to test positive for COVID19.
Earlier this week, the California Supreme Court declined to review the decision, meaning that the case can proceed rather than being dismissed outright.
And here we are dear readers – your humble blogger’s suggestions stand regarding calling for an increased level of cooperation between workers’ compensation defense teams and civil liability defense teams to make sure the defense of one case does not prejudice the defense of the other.
Ok, dear readers, pop quiz. How do you calculate temporary disability benefits in a full time, regular employee? You’d typically take the average weekly wage for the 52 weeks prior to the date of injury and then divide that sum by 1.5, right? Sometimes you might adjust for increased wages (such as a Union raise) or you might make sure the rate is not below or above the statutory minimum and maximum.
Senator Limon’s bill would add Labor Code 4453.1 to the labor code, which would increase the average weekly wage calculation “by the percentage of disparity in earnings between genders as reported by the applicant’s employer in it spay data report to the Department of Fair Employment and Housing…” if the applicant’s average weekly wage is less than the average weekly wage of the opposite gender.
If the employer made no such report to DFEH, SB1458 would require an increase based on the United States Department of Labor Statistics.
Of course, this added temporary and permanent disability benefit is not going to come out of Senator Limon’s pocket – the legislation would make the employer not only bear the cost of these calculations and open the door for further litigation on the proper TD and PD calculation, but would also make the employer pay the burden of the added benefit.
This legislation, of course, flies in the face of the history of case law that bases average weekly wages on earning capacity. Would a worker injured on his first day on the job be expected to make the same wage as employees who had been at a particular company for several years?
Your humble blogger hopes with all his heart that SB1458 never becomes law, but if it does, the additional burden on claims administration will be significant. Claims adjusters will have to determine the following:
The gender of the injured worker (and your humble blogger is willing to bet that we will see the case where there meaning of the word “gender” is litigated)
The average weekly wages for the applicant;
The percentage of difference between the average weekly wages for the opposite gender,
And the disparity between the two.
Of course, the legislation does not provide for the opposite: if a particular gender is making less than the injured worker, the employer does not get a break by reducing the TD by the disparity.
The bill for having the doors open and the lights on in California just keeps getting bigger, no?
Happy Monday, dear readers! Your humble blogger trusts that the weekend was peaceful and meaningful for his beloved readers.
If you are observing Passover, may your bread-free life pass painfully until the end of the festival. If you are observing Easter, I hope you find all the eggs you hid and that you will not judge your humble blogger for raiding the clearance aisle for all the Easter candy the stores failed to off-load. I’m just buying it for … um… the kids! Yeah, that’s the ticket: those Cadbury eggs are just for the kids and totally not for your humble blogger to eat in reckless abandon for his waistline.
Anywho, aside from observing holidays, let’s talk COVID and technology. More specifically, the FDA has approved a breathalyzer test for COVID19, which reportedly produces results in 3 minutes with a 91% accuracy rate.
As many practitioners did, your humble blogger looked ahead and anticipated the issues that will go to trial over COVID19 and the various vaccine rules. Is an employee engaged in “serious and willful” misconduct by refusing to vaccinate? If an employer’s vaccine mandate is the only reason an injured worker is not being returned to modified duty, is the injured worker still entitled to TTD? Is an employer’s different treatment of unvaccinated employees sufficient to give rise to psyche and stress claims?
Well, perhaps this can be the answer. Instead of requiring proof of current vaccination status, perhaps an at-work screening for COVID19 positivity is a better solution. After all, it is now pretty solidly established that the vaccinated can both catch and transmit the disease, as we’ve seen in some recent examples, so wouldn’t it be sounder policy to breath-test all employees as they come to work to ensure no one is bringing COVID19 to work?
This is a device and method worth watching, as it may offer a relatively pain-free solution to the animated (and sometimes violent) debate we’ve seen played out nationally and internationally about the balance of rights and responsibilities in public.
So what’s going on in the world of workers’ compensation? Well, just before we head off into our weekend, your humble blogger thought it might be wise to inform you that the proposed regulations previously discussed here, are now in effect and have been adopted.
What do you think, dear readers, will you be receiving your QME reports via e-mail?
On another note, tonight is the start of Passover, so your humble blogger wishes his beloved readers a hearty Hag Sameach. Always eager to inform, I’m going to let you in on a little secret that is not widely known. There is actually an 11th plague that we endure every year, to this day:
You know, if writing blog posts about horrible proposed legislation was a full time job, your humble blogger would demand overtime pay after doing it for 32 hours per week. Does that sound like gibberish? Well, it should…
Allow me to direct your attention to Assembly Bill 2932, introduced by the California Legislature last month to cap full time at 32 hours and make overtime pay mandatory for all work done in excess of 32 hours per week. If that sounds familiar, it should – your humble blogger respectfully drew your attention to a federal proposed bill, H.R. 4728, that would have a similar effect.
The California bill would apply to those employers who have more than 500 employees, although the plain language of the bill does not appear to limit that number to California employees. Presumably, an employer with 10 employees in California but 500 employees globally would have to start paying overtime at 32 hours for its California employees.
Another bizarre component to the bill is that it prohibits employers from reducing an employee’s regular rate of pay to end up with the same weekly wage at 40 hours.
Should AB 2932 become law, much like with H.R. 4728, we can expect increased AWW calculations, including for those employees who worked more than 32 hours per week prior to going out on temporary total disability.
Here we are again, slugging through our beloved swamp of California’s workers’ compensation system. Your humble blogger brings you a panel decision today which touches on everyone’s favorite subject: panel disputes! Indeed, when the California legislature deemed fit to strip parties of their rights to retain their own experts as part of the SB-899 reforms, the car-salesman pitch was a savings in costs. I wonder how much money the system is saved having to litigate every panel request and specialty.
Anywho, let’s take a look at the panel decision in the case of Ceballos v. Access to Independence of San Diego. The issue here was, of course, yet another panel dispute. Applicant was evaluated by a psychology PQME in 2019. When defendant tried to set a re-evaluation in December of 2020, the QME advised she was only willing to engage in a remote, telemedicine evaluation.
Defendant requested a replacement panel on two grounds – the first that because the QME was unwilling to do an in-person evaluation, and the second because no appointment was available within 90 days of the request as per rule 31.5(a)(2).
Applicant’s counsel objected to the replacement panel request and filed a DOR, and the matter eventually proceeded to trial. The WCJ held that defendant was not entitled to a replacement panel and the WCAB concurred. Relying on Rule 46.2 the WCAB noted that the rule provided that a party cannot be unreasonably denied, and that the remedy for an alleged unreasonable denial was to file a DOR and bring this to the WCAB for a hearing. The WCAB noted that a replacement panel was not the appropriate remedy, but rather a hearing by the WCAB.
The WCAB also held that the time limits for an evaluation in rule 31.5 apply to an initial evaluation, and not subsequent re-evaluations.
So, a few thoughts on this. First off, your humble blogger agrees with the WCAB opinion in Ceballos of course that agreement to telemedicine cannot be unreasonable denied. But, with that in mind, what is a reasonable basis upon which to object to telemedicine? If the QME can observe the applicant via the computer screen and hear the applicant via the audio functions, what would be the hesitation. Now, your humble blogger would be among the first to object to a telemedicine QME evaluation for an orthopedic issue – a doctor cannot effectively take measurements of range of motion or check for Waddell’s signs of magnification over a ZOOM conference. But with a psyche evaluation, telemedicine seems appropriate.
What’s more, telemedicine presents a feasible opportunity for the defense community to test its rights to send a nurse case manager to observe the evaluation, and see if interpretation of the law can be forced to allow recording of a psyche exam by the defense, as discussed here.
But, on to the other point by the WCAB. Is the limit of 60-90 days to set an evaluation really only for the initial examination? Can the parties really be held hostage by a QME who won’t re-evaluate applicant for a year or two? The WCAB’s decision in Ceballos focused on the language in 31.5(a)(2), specifically “a QME on the panel issued cannot schedule an examination for the employee within sixty (60) days of the initial request for an appointment” (emphasis added) and cited the panel decision of Cienfuegos v. Fountain Valley School District, a 2011 panel opinion. This same reasoning is applied in the 2019 panel decision of Gustafson v. City of Mountain View.
So, what is a party to do when the QME cannot or will not set a re-evaluation within a reasonable time? Well, section 31.5(a)(6) does provide a catch-all: “the evaluator who previously reported in the case is no longer available.” Granted, it’s bit of a stretch, but if the WCAB interprets 31.5(a)(2) to apply only to initial evaluations, then perhaps a QME that refuses to provide a reasonable re-evaluation date is “unavailable” under section 31.5(a)(6).
What do you think, dear readers? Does this interpretation violate the California constitution’s requirement to “accomplish substantial justice in all cases expeditiously”?
Don’t be shy, dear readers… tell me what you really think!
I hope my little April Fools’ joke was taken in good spirits and forgiven. Given the news of the day, your humble blogger could hardly resist. Well, why don’t we let sleeping dogs lie and move on with what’s going nowadays.
As you may recall from my earlier blog post, the WCAB recently ruled that the 5-day mailbox rule, at least for workers’ compensation matters, applies to all manner of service except personal service: mail, facsimile, or e-mail. The rules of the civil world, that provide two days extra time to act for e-mail service, don’t apply to workers’ compensation matters.
Well, we recently received more guidance, although this time from the Court of Appeal, on service rules. So first a bit of background – California Labor Code section 4062.2 allows a represented party to request a panel 10 days after a delay notice is issued by the employer. Of course, as we know from the en banc series of Messele opinions, the mailbox rule applies to the trigger of the panel process, so it’s actually 15 days for in-state service.
What happens when the party receiving the delay notice is in California, but the party sending the delay notice is not? If XYZ Insurance Co. sends the delay notice from Alabama to an applicant in California, is the service time 5 days or 10? After all, 8 CCR 10605(a)(2) provides for an extension of ten days “if the place of address and the place of mailing of the party, attorney or other agent of record being served is outside of California…”
You might think it obvious, but there is clear disagreement on this point. In the recent case of Trigueros v. Gonzalez Ag, Inc. the trial judge found one way, the WCAB commissioners found the other way, and the Court of Appeal reversed the WCAB!
Applicant, a resident of California with California-based attorneys, filed a workers’ compensation claim and the employer’s insurance company responded by mailing a delay notice from its office in Missouri. Applicant requested a panel on the sixteenth day from service of the delay notice, and defendant objected, arguing that since the insurance company mailed the delay notice from outside of California, service as 10 days and not 5 – applicant’s panel was premature.
At trial, the WCJ found that the panel was valid and not premature, but the WCAB reversed, interpreting section 10605 to mean that if either the sender or the recipient is outside of the state of California, the time for service is 10 days rather than 5. Just a side note, dear readers, if this is the correct interpretation, then what would be the proper service time if both the sender and the recipient are outside of the State of California, but both within the same state? If a California applicant moves to the same state where his employer’s insurer keeps its office, would that mean that we’re back to down to 5 days?
Well the Court of Appeal, in an UNPUBLISHED opinion, reversed the WCAB, interpreting section 10605 to only apply to the recipient: “the location where any triggering mailing originates from is … irrelevant.”
Now, of course, since the California prohibits citation to unpublished opinions, your humble blogger urges you not to march into court waiving this opinion around. However, this provides further guidance on when to request a panel and when to (or not to) cry foul.
Chins up, dear readers, the week is just beginning!
Before we all check out for the weekend, I think it only fair to report to you that, at long last, we have new guidance on the meaning of the word “violent” when it comes to post-1/1/13 compensable consequence injuries for psyche add-ons, thanks to a recent Court of Appeals decision,
As practitioners from the pre-SB-863 days will remember, every single orthopedic injury came with sexual dysfunction, sleep loss, and psyche compensable consequence claims in an effort to frivolously drive up exposure and litigation costs. SB-863 sought to put an end to that by eliminating permanent disability for such claims, limiting permanent disability in such cases only to psyche claims, and then again, only when the injury involves (1) being a victim of a violent act; (2) being exposed to a significant violent act; or (3) a catastrophic injury. (See LC 4660.1)
For years, violence was defined as one would expect – a criminal act intentionally committed by another person. However, as early as 2016 the WCAB expanded the scope of a “violent act” to include a forceful blow, such as falling on a hard floor. Well, almost every slip-and-fall case became a “violent act” in that sense.
Well, just yesterday afternoon the Court of Appeal for the 4th District issued its published decision in Christrock Entertainment v. WCAB (Smith). In the Smith case, applicant was a fight promoter who had recently started living in the Bel-Aire neighborhood of Los Angeles and attended a show as part of his job duties. Inexplicably, he became emotionally distraught at some of the performance. The next morning he noticed he had a sore back and significant bruising on the palm of his right hand, which he attributed to the poor ergonomic set-up of the audience seating. He filed a claim for orthopedic injury to his low back (the bruising on his hand resolved shortly thereafter) but also filed a psyche claim as a compensable consequence, alleging that he felt that the impact of observing the show was so violent towards him that he was entitled to additional compensation for his psychiatric trauma.
At a psychiatric PQME evaluation, the evaluator noted that applicant was making wild claims that he had been recruited for an organization who is tasked with keeping the existence of extra-terrestrial visitors to the planet Earth a secret. He also made bizarre claims that the Earth was going to be attacked on Independence Day but that he was prepared to help defend it.
The WCJ and WCAB both rejected the claims for additional PD based on psyche, relying on LC 4660.1 and noting that an act of violence, though watered down by including any “forceful blow,” did require some sort of strike or impact: even a slap. But on applicant’s petition for a writ of review, the Court of Appeal reversed!
Citing recent theories from such academic institutions as UC Berkeley, the Court of Appeals noted that there was a growing consensus that speech, and in some cases the lack of speech, can be construed as violence. Accordingly, if subjective feelings are sufficiently hurt, the “violent act” requirement of 4660.1 can be satisfied. All that is required is credible testimony on the part of the applicant. The Court cited a list of other cases that recently came to the same conclusion.
Late last night, upon hearing about the Court’s decision, applicant made the following statement: “When this case started I felt I was being treated like one of the bad boys, but now I feel like a real prince!”
The employer, Christrock, has already stated it has no intention of seeking an appeal, which is bad news for defendant everywhere who would like to see this wrong righted.
Here we are again, still slugging our way through our beloved swamp of California’s workers’ compensation system, and your humble blogger is here to curate the culture clash between old and new, the past and the future, the traditional and the modern that plays out in our workers’ compensation system.
I bring you the panel decision in the case of Aguilar v. Vanitas Manufacturers, Inc. for two reasons. For one, it is a defeat for a copy-service lien claimant, which always warms the cold, hard heart of your favorite defense attorney (that’s me, right?) The other? Well, we have more guidance about the effect on deadlines of different forms of service.
In Aguilar, a WCJ’s trial decision was e-mailed to the lien claimant, which then took the full 25 days to file a petition for reconsideration (20 days plus 5 for mailing). Defendant and the WCJ both opined that the petition for reconsideration was untimely because the time to act was 20 days plus 2 days for e-mail service.
To start, let’s talk e-mail vs. snail mail. As we all know, mail service can take up to five days depending on how quickly the USPS can process the letter and deliver it. E-mail, however, is instant (or nearly so). Under California Code of Civil Procedure section 1010.6(a)(4)(B), when a document is served by e-mail the deadline to act on that document is extended by two days. By contrast, California Code of Civil Procedure section 1013 provides that service by U.S. Mail in the same state increases the time to act by five days. Accordingly, one would think, looking only at the CCP, that the means of service of a document affects the number of days remaining to act.
But one would be mistaken, according to the Aguilar panel.
Citing the en banc WCAB opinion of Messele v. Pitco Foods, Inc. for the proposition that “the WCAB’s Rules govern service if they differ from CCP section 1013”, the panel applied that reasoning to CCP 1010.6 and cited 8 CCR 10605 which increases the time to act by 5 days for service by mail, fax, e-mail, or any other method besides personal service. Presumably, carrier pigeon service would work as well?
The interesting thing is that this rule is a little disconnected from reality. Fax and e-mail arrive immediately, much like personal service. Further, a respondent who is out of state gets extra time to act but while out-of-state addresses take longer to reach by U.S. Mail, distance is of no relevance to e-mail or facsimile.
So, as reaffirmed by the Aguilar decision, service by e-mail in a matter before the WCAB provides an additional 5 days to act if the street address on the official address record is within California.
But that’s about where it stops going well for the lien claimant. Though the petition for reconsideration was ultimately ruled timely, the WCAB affirmed the trial Judge’s analysis. Copy service lien claimants bear the burden of proving that there was a contested claim, that their services were to address the contested claim, and that their charges were reasonable. Defendant’s failure to do bill review does not serve as a waiver of any sort.
Welp, it’s Wednesday, dear readers, and your humble blogger is here for you with yet another blog post.
Fortunately, this post is good news – another successful decision reached thanks to the efforts of the attorneys at State Compensation Insurance Fund!
Before we get into the meat of the issue, your humble blogger would like to voice an additional objection to this whole “adding instead of combining” disabilities trend. When your humble blogger was just knee high to a grass hoper, I was full of opportunity and promise, just like everyone else. Potential was a plenty. It seems truly unfair now that the WCAB seems to be inclined to impose upon us the very thing we hoped to avoid by going to law school: math!
Accordingly, your humbleblogger hopes we can return to the magic of the combined values chart rather than the pain of the adding of impairments. Nevertheless, on to the panel opinion!
The panel decision is Martinez v. Sousa Tire Sevice, insured by SCIF. Applicant’s impairments on an accepted case were rated as 77% PD for orthopedic injuries, 62% for CRPS, and another 26% PD for psychiatric disability. While the orthopedic and CRPS were combined to yield 91% PD, the psychiatric impairment was added to reach 100%. Had the 26% PD for the psyche been combined with the 91% for the orthopedic and CRPS, of course, the result would have been 98%. Now, you might be thinking, dear reader, that there isn’t much difference between 98% and 100%, but your humble blogger could not possibly disagree with you more. While 100% includes a life pension at the TD rate, 98% is significantly less, or at least it can be depending on the circumstances.
Anywho, the psychiatric treating physician wrote a report expressing support for adding the psychiatric impairment to the orthopedic impairments, “given tat the psychiatric impairment does not overlap with his orthopedic impairment.” The panel rejected this opinion. Distinguishing the Kite decision, the panel noted that in Kite, the two body parts being “added” rather than combined were both within the reporting physician’s expertise, and the two impairments caused a “synergistic” effect, justifying the addition. The panel continued: “[i]n contrast, here one specialist is suggesting that we add impairments found by her in her own specialty to impairments in a completely different body system found by a different specialist.” The case was sent down to the trial level for a new finding of PD and attorney fees.
Does this reasoning sound familiar? It will to my most learned and diligent readers. This was the same logic used to rejecting adding impairments in the panel decision of Bradley v. State of California.
Certainly good news for the employer in this case, but on a broader scale this should encourage us to challenge those Kite ratings and not shy away from litigating the issues.
