As you may recall, dear readers, your humble blogger risked life and limb to bring you the story of Raphael “Noodle” Davis, a (now) ex-Los Angeles firefighter who continued to participate in Mixed Martial Arts (MMA) competitions and brag about his running times on twitter even though he was allegedly “disabled” and couldn’t return to duty as a firefighter.

This defense attorney’s tough exterior shielded him from an impromptu MMA match, but Mr. Noodle’s did not help him avoid prosecution by the Los Angeles County District Attorney’s office.

It looks like Mr. Noodle pled out, agreeing to repay $30,000 in restitution and performing 200 hours of community service.  Mr. Noodle was able to sustain such a sentence, because he developed a tolerance for such punishment as part of his MMA training.  In fact, there is a very painful attack in MMA, called “slap on the wrist,” which closely resembles this sentence.

Doesn’t LA have a problem with its budget?  Is money really flooding the streets of Los Angeles County that they can afford to give a wink and a nod to firefighters, policemen, and any other city and county employees who choose to get a fraudulent pay-day?  The City was effectively paying Mr. Noodle to pursue his MMA career!  Will the $30,000 really cover the cost of investigation, prosecution, and enforcement?

Fraud is hard to detect, and therefore hard to deter.  When you do catch a fraudster like Noodle, you have to throw the book at him so the rest of the workforce will realize it is not worth it.  As it stands, it’s pretty worth it right now in L.A.

WCDefenseCA would love to give a salute to the Los Angeles County D.A.’s office, but unfortunately no salute shall issue.

“Even though you can’t hear them or see their jig, an insurer’s a person, no matter how big.”

Such was the rule articulated in Richard Horton v. Crown Cork and Seal, a recent panel decision from the Workers’ Compensation Appeals Board.

Applicant Richard Horton received a stipulated award for a 2002 injury in 2004, entitling him to indemnity totaling $45,262.50 and future medical treatment.  In 2006, he filed a petition to reopen for new and further disability, including a new injury to the psyche.  The matter was against resolved by stipulation, this time at 66%, up from the previous award of 49%.  This time, applicant’s pay day was an additional $21,760.

Well, between the 2002 injury and the 2006 injury, employer Crown Cork and Seal switched insurers from Travelers Insurance Company to American Protection Insurance Company, so APIC naturally filed a petition for contribution from Travelers.  The petition was referred to arbitration.

The arbitrator decided this case on the term “new and distinct benefits” as used in Rex Club v. Workers’ Comp. Appeals Bd.  Rex Club noted that “[i]f the WCAB determined that SCIF could seek contribution only as to the $200,000 awarded pursuant to the 1994 order approving compromise and release, the WCAB is correct to the extent the order awarded new and distinct benefit.”

The arbitrator interpreted this to mean that APIC was barred from seeking contribution form Travelers because the benefits awarded after the 2006 petition to reopen were not new and distinct from those awarded in 2004.

The WCAB disagreed and granted APIC’s petition for reconsideration.  In arriving at its decision, the WCAB reasoned that “[t]he second award provided benefits for new and further disability arising out of the original injury as well as disability arising from an injury to the psyche as a compensable consequence of the original injury.

Is your boss a jerk? What about your co-workers? Your customers?  Your subordinates?  Apparently bullying at work is becoming the “new thing,” both in it’s happening and its focus in the workers’ comp world.

A new study by Career Builder finds that bullying at work is on the rise, with 35% of employees surveyed reporting that they had been bullied at some point at work.  “Bullying,” as defined by the study, included being falsely accused of mistakes, double standards, criticism, getting yelled at in front of coworkers, and various other “mean” things.

Now, having the pleasure of knowing several of my beloved readers personally, I can imagine more than a few pairs of eyes rolling upon reading this post.  But, like it or not, this is a very real threat to businesses and insurers.

Bullying can be real and serious and haunt an employee even beyond the 9-5 work day.  Bullying can also just be a real workplace with real deadlines and real demands and a real need for employees with a thick skin.  In either case, whether it is perceived or actual bullying, employees are made unhappy employees by it.  Workers who aren’t happy don’t want to return to work, and they don’t mind “sticking it to the man” by filing ridiculous claims.

If you’re the boss, keep an eye out for this sort of behavior, especially in your own actions.  No one wins when workers, injured in fact or injured in their imaginations, are on the war path for a place they feel has mistreated them.

It’s much cheaper to just be a decent human being than to face the psyche claims and increased workers’ compensation costs.

And if you don’t, I’ll find out about it and take your lunch money…

Today’s post has to do with a narrow area of the law for most of us California comp people.  The Longshore and Harbor Workers’ Compensation Act is a Federal law which functions as a workers’ compensation of sorts for dock workers.  So if you’ve got employees unloading ships in the Port of Oakland, there’s a good chance you’re dealing with this draconian system on a regular basis.

Now, I won’t bore you with the details, but apparently there is no CIGA equivalent under Longshore – only a requirement that, when an employer’s insurance company becomes insolvent, the employer must continue paying benefits in place of the insurer.  However, in cases where the insurer and the employer are insolvent, there is a Special Fund that might step in.  But that’s not particularly comforting to the (insolvent) employer.

So if a California employer has a federal Longshore claim on one hand and an insolvent insurer on the other, can it knock on CIGA’s door?  The recent panel decision (and ultimately a writ denied case) of Kohn Koch v. R.E. Staite Engineering, Inc. says it can.

Applicant was a commercial diver for Staite and sustained an injury that was accepted by Staite’s insurer.  Applicant pursued a Longshore claim and, just three years later, Staite’s insurer was placed in liquidation.  Staite continued to make payments to the unfortunate Mr. Koch, but then sought reimbursement from CIGA.  CIGA naturally had a problem with this, and made its objections, which looked something like this:

In any case, the workers’ compensation Judge found that the matter had already been resolved and collateral estoppel applied.  After all, the exact same issue had been resolved in the case of Roy Rogers v. CIGA, a 2007 case in which the exact same facts presented with the only difference being Roy Rogers instead of John Koch (Staite was the employer in that case too!).

The Workers’ Compensation Appeals Board took a different approach to the same conclusion.  Reasoning that the injured worker can pursue California workers’ compensation benefits AND Longshore benefits, but is precluded from a double recovery, the WCAB found that CIGA would be liable if applicant pursued California comp benefits as well.  Given this, CIGA would be on the hook for those California benefits, and Staite should receive credit for those benefits paid under Longshore, to the extent they would be available under California law.

There was a dissenting opinion to the panel decision, which noted that just because something could have happened, such as the filing of a California comp claim, does not mean that a judicial determination should be made on that “could-have.”

In any case, employers – if you may fall under the Longshore Act, it appears that CIGA, willing or not, has you covered.

Well, well, dear readers – welcome back!  As we recover from our Labor Day shopping, road trips, and other celebrations, we are greeted by a new law of the land.  That’s right, dear readers – SB 863 has passed both the State Assembly and the Senate, creating a tidal wave of momentum as it is rushed to Governor Brown’s waiting desk.  In case you’re wondering, Governor Brown has been pushing for SB-863, and popular speculation counsels that today’s early morning sunshine will show his signature adorning the bill.

SB-863 gives us plenty to talk about: 170 pages of reform and a new frontier for attorneys to litigate.  But it appears that most of the changes will take place for injuries on or after January 1, 2013.  That’s not long to wait, admittedly, but if you’ve got a few filing cabinets full of pre-2013 injuries, the cavalry will be coming only slowly.

Despite its many wonderful changes, one of the disappointments with this bill is found in section 1, subsection (c): “it is not the intent of the Legislature to overrule the holding in Milpitas Unified School District v. Workers Comp. Appeals Bd. (Guzman).”  But perhaps there is a silver lining: has the Legislature said something else in this declaration of legislative intent?  After all, there are two cases dealing with rebutting the AMA Guides and skirting their strict interpretation:  Almaraz and Guzman.  Guzman III offers us considerably healthier language.

So here’s a thought – if the Legislature expressly states that it does not mean to overrule Guzman III, we know that despite the Legislature’s various limitations, it is able to articulate those cases which it does not wish to overrule.  Can we, then, assume that the Legislature does intend to overrule Workers’ Compensation Appeals Board decision in Almaraz II to the extent that Almaraz II differs from Guzman III?

Perhaps… time will tell.

Happy Labor Day!  As everyone knows, Labor Day commemorates the crazy antics of John S. Labor (pronounced: le-bore) who, through the coordinated use of bulls, peanut butter, and a feisty parrot, managed to tame the Wild West…

I hope my beloved readers are enjoying a very well-earned day off.  As always, your humble blogger is busy at his desk, which looks something like this:

Now where did I put my red stapler?

If you’re in the office, working hard or hardly working, feel free to drop a line and say hello!

The internet seems obsessed with the pending reforms included in Senate Bill 863, which received yet another amendment (its sixth) just yesterday.  Coverage extends to all aspects of the bill, from the hired protestors outside of Senator Kevin de Leon’s office to speculation that Governor Brown is supporting the reform in exchange for some slack from the business community in getting Proposition 30 passed.

And the comments… oh the comments!  Every online article is loaded with comment after comment of pure venom, with claims ranging from “the reform bill will prevent attorneys from representing injured workers” to critiques of a subsection which will require the euthanasia of injured workers with a predicted treatment cost over $75.36 (I made that one up, but it wouldn’t surprise me to see a commenter make a claim to that effect).

Your humble blogger is inclined to take a more relaxed approach.  If these reforms become law, we can all review them and plan accordingly for the new claims that arise.  If the reforms do not become law, then all of this frustration and furious typing away our respective hopes and fears will be for nothing.

While the world focuses on the real life imitating a certain television series, your humble blogger has another story for you, small in its significance but of considerable utility in its duplication.

A small claims court Judge has ordered Michele Marquez, a (former?) Hacienda La Puente Unified School District child-development teacher, to pay $5,000 in restitution to the district.  Claiming an injury in September 2010, she was placed on disability leave but was discovered to be working another job by the school district’s investigator.

Bear in mind, dear readers, this occurred in May of 2012, but the internet is a large place, and your humble blogger has only discovered this occurrence now.

California Small Claims Court is available for claims under $5,000 for any entity (not a natural person).  And, any number of claims under $2,500 may be filed in a calendar year.  Perhaps this is a venue that should be considered by insurers and self-insured employers alike?

After all, temporary disability caps out at just over $1,000 per week, so each claim could possibly reflect each payment made through the applicant’s fraud.

Sometimes the local law enforcement is not interested in pursuing fraudster workers – they are occasionally focused on uninsured employers or, sometimes, violent crime (who would a thunk it?).  That doesn’t meant that an employer or insurer can’t attempt to recover their losses through other means.  (No, dear readers, this is not an invitation to hire thugs and inflict new impairments on your workers.  Let’s stay inside the law, shall we?)

Has anyone out there tried this crazy idea?  Has there been any luck enforcing 104 small-claims court judgments for every payment of temporary disability ever made?

In any case, WCDefenseCA sends out a big “Huzzah!” to Hacienda La Puente Unified School District in refusing to eat unreasonable costs in this case.  Employers and Insurers state-wide would do well to follow suit.

If you listen closely, dear readers, you will hear the furious typing and exciting writings of the workers’ compensation community, with all the big experts giving their interpretations and predictions for the constantly changing “reforms” of Senate Bill 863.  Even as Senator Kevin de León faced the wrath of hired protestors, speculation continued for what the reforms will be when (and if) the bill is signed by Governor Brown.

At the risk of swimming against the stream, allow your humble blogger to report to you another development in the law of workers’ compensation, this one with more binding authority than the wishful thinking of the workers’ compensation community.

We’ve had a few conflicting panel opinions on the issue of Labor Code section 4658(d), among them Hisato Tsuchiya v. County of L.A., which held that the 15% increase/decrease does not apply in cases where the injured worker missed no time; and Wendy Audiss v. City of Rohnert Park, which held that it does.

Now, the Court of Appeal has pronounced judgment, ruling that in cases where the injured worker has not missed any time from work, section 4658d does not apply.  The case is City of Sebastopol v. Workers’ Compensation Appeals Board.  Defendant-employer made an offer of regular work less than sixty days after applicant William Braga was declared permanent and stationary, even though Braga had lost no time from work and was happily at his task even after filing his claim for hearing loss.

Naturally, the City took a 15% decrease in permanent disability payments, and, surprisingly, applicant was perfectly agreeable to this – all parties just wanted their compromise and release agreement approved.  But the workers’ compensation Judge rejected the settlement agreement, reasoning that the 15% decrease does not apply in cases where the applicant missed no time from work.

Unfortunately, the Court of Appeal has agreed.

Now, bear in mind, dear readers, that a good portion of the workers’ compensation community finds this a good decision, but your humble blogger does not count himself among them.  Through diligent adjusting efforts, employers who found workers with no missed time following an injury enjoyed a benefit in the form of a 15% decrease in permanent disability indemnity.  And this made sense – if the injury is so minor that a worker did not miss any time, then the PD really should be decreased.

Now, however, that benefit is no longer available to the employers and insurers, and the best adjusters have one less way to distinguish themselves.

I have some great news for those of us who keep our calendars handy and our fingers nimbly extended for the purpose of counting.

So you’ve received your panel of QMEs, and, as usual, the panel is stacked 2-1 with employer-hating, insurer-despising, pill-happy, surgery-generous, Almaraz-Guzmaning “qualified” medical evaluators.  Applicant’s counsel quickly strikes the one good QME and you’re stuck with choosing between bad and worse.

Then, of course, Christmas comes early!  The PQME misses his deadline of providing a supplemental report within 60 days of the request, as required by California Code of Regulations section 38(h).  So, naturally, you make your objection to the PQME, providing a copy to opposing counsel, and submit a request to the Medical Director for a new panel, or at least a replacement QME on the same panel.

But the report came in eventually, and applicant wants to proceed on the report.  What result?

Perhaps your recall an earlier post in which an applicant objected to a late report, knocking the PQME out of the running and obtaining a replacement.  But that was an applicant invoking the rules and wanting to play it by the book – can a defendant pull off the same crazy stunt?  Is it at all possible that what is good for the workers’ compensation goose is also good for the workers’ compensation gander?

http://www.youtube.com/watch?v=kYT79rBqjrA

(In case you’re wondering, that’s about what a day at the Board looks and sounds like)

Submitted for your approval, dear readers, the panel case of Aida Lopez v. C&S Wholesale Groceries, in which the Workers’ Compensation Appeals Board denied applicant’s petition for removal form a workers’ compensation Judge’s order to have the medical director issue a replacement QME or a replacement panel.

The WCJ found that a supplemental report was requested, 60 days had passed, defendant objected and requested a replacement panel, the report came in, applicant wanted to proceed based on the supplemental report.

The Court of Appeal wasn’t too impressed with applicant’s position either, and denied her petition for a writ of review.

Here’s a thought – if you want to keep the QME, and the deadline is coming up, then perhaps you ought to write a letter explaining the deadline and the need for the report.  QMEs don’t become QMEs to get disqualified and would probably welcome the reminder.

Your humble blogger has gotten his hands on a copy of a draft of proposed reforms, this time as part of the possible legislation.

There is a lot to get through, folks, a lot to comprehend and a lot to imagine as it would be applied.  But on an initial reaction, this chronically cynical and typically pessimistic defense lawyer is feeling cautiously optimistic.  It appears that some of the proposed reforms are meant to address specific instances of insanity in the workers’ compensation system (Alvaraz, I’m looking at you!)  In fact, if the reforms go through un-mutilated, the new Labor Code section 4062.3, subsection (f) would specifically exclude “nonsubstantial matters such as the scheduling of appointments, missed appointments, the furnishing of records and reports, and the availability of the report” from the presently all-embracing scope of “ex parte communication.”

Another wonderful reform is found in (hopefully) the future Labor Code section 4064, subsection (c), which would allow employers to file applications on behalf of unrepresented employees in order to grant the WCAB jurisdiction.  The reformed subsection would eliminate the liability for applicants’ attorney’s fees for the entire case, and limit it to any attorney fees related to a filed declaration of readiness to proceed.

There’s plenty to look forward to, but as the old Russian saying goes: “May we have everything, and not have to take anything for it.”  Your humble blogger will keep you posted!