Author Archives: Gregory Grinberg

Update on Kuciemba and Civil Liability for WC Covid19

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Happy Monday dear readers!

Here we are again and today the WCAB is back to in-person hearings and trials.  Your humble blogger has reports from the first few practitioners who have had in-person trials again and here is the video with a description of what life is like back at the Board in person:

Thanks to all my beloved readers who managed to attend the COVID19 update last week.  If you missed it and would like an encore for your office, please drop me a line! 

As one attendee pointed out, there is an updated in the Kuciemba case.  As you may recall, the Federal trial judge in the Kuciemba matter dismissed plaintiffs claims, reasoning that California law does not allow an employee’s spouse to sue the employer for negligent COVID19 exposure, instead limiting damages to the workers’ compensation system.

Well, the plaintiffs in Kuciemba appealed, and oral arguments were held on March 10, 2022.  It appears that the 9th Circuit panel is considering a “wait-and-see” approach to hear from the California Supreme Court for guidance.

In other words, the issue of employer COVID19 liability to non-employees is not resolved or certain yet.  We should continue to monitor the situation, but your humble blogger respectfully submits that we, on the workers’ compensation side of things, should be making sure we don’t cut corners that might prejudice the civil side of things.   In other words, don’t let this picture be you!

As if we didn’t have enough to worry about when assessing a COVID19 workers’ comp case, but, to quote Mr. Hyman Roth, “this is the business we’ve chosen.”

Another Shameless Plug…

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Happy Tuesday, dear readers! Your humble blogger is breathing hard trying to recover form his over-indulgence in celebrating Pi day yesterday, and hopefully you got to enjoy as well!

Tomorrow is Wednesday, 3/16 and your humble blogger is giving a webinar presentation with noted colleague H. Douglas Hawkins, Jr., Esq. on the impact of the case of Matilde Ek v. See’s Candies, Inc. and claims handling.

Info and link are below and here’s hoping you will join us!

Please join us for March’s CE webinar!
March 16th – 10:00am
“COVID Update”
A discussion of the See’s Candies decision
and the impact on COVID-19 claims (1.0 CEU – CA Adjuster)

In the case of Matilde Ek v. See’s Candies Inc., the Court of Appeal allowed an employee of See’s Candies Inc. to proceed with her claim for civil tort remedies after she allegedly was exposed to COVID-19 at work and brought it home to her husband. COVID-19 is presenting a new arena of liability for employers and tilts the scales of accepting and settling questionable industrial COVID-19 claims as an economics decision. Managing Partner Gregory Grinberg, Esq. and Senior Associate Attorney H. Douglas Hawkins Jr., Esq. will discuss the impact of the See’s Candies decision and tactics for addressing industrial COVID19 claims with the impact of this decision in mind.

CLICK HERE TO REGISTER!

*If you experience difficulty registering please try to copy and paste the following link into your internet browser (Google Chrome or Mozilla Firefox work best):  https://attendee.gotowebinar.com/register/6774531364777865230

or email Scott@galesutow.com to register.

In Person Trials and Exp. Hearings Resume at WCAB

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Happy Monday, dear readers! Not only that… happy Pi day!

The news making its way around the workers’ compensation community is that the WCAB has restarted in-person trials. 

If your trial date is March 21, 2022 or thereafter, it appears the WCAB will have you attend your trial in person, along with your witnesses.  With the exception of the Eureka board trials, lien trials, expedited hearings, and special adjudication unit trials will be in person, while status conferences, mandatory settlement conferences, and presumably walkthroughs will remain remote.

Now, remember, dear readers, that the current Regulations, allow for electronic hearings, even after March 21, 2022.

For example, section 10815 allows for any matter to be set for an electronic hearing; section 10816 allows any party intending to appear electronically to file a petition showing good cause; and under section 10817, a petition can be filed showing good cause to allow a witness to testify remotely as well. 

The speculation as to the reason for returning to in-person trials is running wild, although the leading reason appears to be the general right of the public to attend and observe trials.  Your humble blogger has seen his share of trials (and tribulations) both online and in person.  It seems like the ability to mute a member of the public attending a trial online is significantly more effective in both allowing someone to observe while not allowing the public to disrupt the trial. 

Allowing members of the public to pour into a tiny, poorly ventilated hearing rooms seems a much more significant interference than allowing members of the public to log onto the posted trial.  But, then again, your humble blogger was not consulted prior to the implementation of this policy. 

Anywho, dear readers, you have been warned.  Act accordingly…

E-Mail Service of QME Reports Regs

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Happy Wednesday dear readers!

Your humble blogger has the kindest, smartest, most diligent readership of any blogger out there.  I was corrected by a reader who told me the proper greeting, when addressing a group of people rather than an individual, was not “howdy y’all” but “howdy all y’all.”  No doubt, this is akin to Usted/Ustedes in Spanish, viy/viy in Russian, Atah/Atem in Hebrew, and likely many more languages that I don’t have the pleasure of butchering with my attempts to speak.

Nevertheless, though corrected and humbled, your humble blogger is still here to bring you an updated regarding medical-legal evaluations.  Proposed changes to Rule 36.7 would make permanent electronic service of medical-legal reports (rather than allowing for this as emergency regulations). 

The regulation, as proposed, would allow any of the parties involved to agree to receive a QME report via electronic service by providing an e-mail address.  It further refines the regulation to place the burden of providing an updated e-mail address to the QME or AME on the party. 

The regulation continues to require a proof of service and maintaining of records, just as before.

Your humble blogger, for one, is in favor of this approach.  How many times have we been plagued by opposing counsel, trying to conceal lack of preparation and diligence by claiming that he or she never received a particular QME report.  Now we will have concise proof (not the presumption of delivery that comes with a proof of service) that the report was timely served and delivered.

If you are at all like your humble blogger, your own e-mail inbox is overflowing (about two weeks ago I managed to get down to 17 e-mails before looking away for a moment to have it fill right back up).  Sisyphus would be proud.  So perhaps law firms and insurers/employers should start designating a specific e-mail for receiving med-legal reports and make sure those e-mail addresses are diligently monitored and routed to the right desk?

Further, now that we will be able to conclusively show when a report was transmitted to the parties, the WCAB can be a bit more strict with requiring diligence to get these files moved along to resolution?

One can only hope, dear readers – one can only hope!

Straight on till Friday!

On When a QME Report is “Late”

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Happy Tuesday, dear readers!  Howdy Y’all!

Your humble blogger is back from his trip to Texas.  So, a few brief updates for you: the NRRDA conference was fantastic.  I highly recommend you attend in the years to come if you can make it.  Despite my best efforts to catch an armadillo, the clever little buggers would make me chase them up hill, then turn into a ball and roll back down until I was exhausted.  The bowling tournament will just have to wait.

Despite not catching an armadillo, I did manage to find something far more precious – some new friends, which is nothing to sneeze at.  After all, one of life’s greatest examples of tragic irony is that pirates spend their lives searching for treasure, never realizing that the real treasure is the friendships they form along the way.

Anywho, since we’re back in reality, let’s talk about a panel decision, shall we?  I bring to your attention, dear readers, the case of Munoz v. Cascade Drilling, recently issued by the WCAB.  This is on everyone’s favorite subject – panel disputes!  Applicant was examined by a QME in the orthopedic specialty for his claims of injury to the right wrist and right upper extremity.  The report was served on the parties on March 9, 2021.

But, just as the good doctor was dropping his report into the mail, applicant’s counsel was dropping an objection into his own mailbox, alleging that the report was not timely and demanding a replacement panel in the specialty in pain medicine.

The parties proceeded to trial on the issue and the WCJ ruled that applicant is entitled to a new panel, AND is entitled to change the panel specialty. 

Since your humble blogger has an overactive imagination, I like to think that at 6:00 a.m. on the 30th day since the exam, applicant’s counsel’s alarm goes off, but he’s already awake. He rips the blanket off himself and is wearing already wearing a suit, clutching the objection letter in his hand.  “I’ve waiting 30 days for this moment” he thinks to himself, “it may as well have been 30 lifetimes.”  As he drops his objection letter into the mail, he roars “evaluate THIS!”

So, what happens, dear readers?  The QME is serving the report on the same day the applicant is serving his objection.  On the one hand, there is no way applicant’s counsel has seen the report at the time he sends his objection – so any concerns of objecting based on the contents of the report don’t apply.  On the other hand, Labor Code section 139.2(j)(1)(A) provides for 30 days after an exam to submit the initial report, and rule 38 requires that the objection me made prior to the date the evaluator served the report.

The WCAB took up the issue and found that the plain meaning of rule 38 is that an objection has to be made PRIOR to service of the report. So, if both the objection and the report are served on the same day, presumably the objection is late and the report stays in.

It seems to be taken as a given, however, and not commented upon by the WCAB, that a replacement panel due to a late report allows the objecting party to change the panel specialty.  In your humble blogger’s opinion, the proper approach is to issue a replacement panel in the same specialty.  What do you think dear readers?


And here’s another hypothetical question for you from your humble blogger.  The report in this case was served on March 9, 2021.  Since then, the WCAB has adopted rules requiring the parties to accept service by e-mail.  What happens if the report is served by e-mail on day 31 at 8:00 a.m., but one of the parties had scheduled an e-mail objection at 12:01 a.m. that morning objecting to the late report?  At that point, does the objection get “made” before service of the report, consistent with rule 38?  After all, the online panel request system is sensitive to the millisecond – the first electronic panel request after 5:00 p.m. on 16th day wins.

Just something to think about in our brave new world, dear readers.  Till Wednesday…

Another Unscheduled Blog Post…

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Dearest readers, can you guess where your humble blogger is? Well, at the moment, I’m in Texas!

That’s right dear readers, your humble blogger is attending the NRRDA conference this week in San Antonio. If you’re around, please stop and say hello howdy – I’ll be the relatively handsome and somewhat young man in a bow tie (there can’t be two us, right?)

And in the meantime, as your humble blogger is meeting new friends and trying to catch an armadillo to bring home and use as a “smart” bowling ball, he’ll be thinking of what to post next week.

Till then, dear readers!

PsBattle: A balled up armadillo : photoshopbattles

More of the Same from Sacramento

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Happy Monday dear readers!

Here we are, at the very end of February, ready to delve into March (keep an eye on those ides, no?)  So what better way to finish off this month than with a blog post about another horrific piece of legislation brewing in Sacramento.

Aside from the various COVID-19 related presumption laws, shortening investigation periods from the 90 days afforded under Labor Code section 5402 to 30 or 45 days (depending on the applicable section), defendants are already hard-pressed to properly investigate a claim within the time allotted.

Let’s say an employee makes a claim for Monday-morning back injury, and the supervisor was aware that the employee was helping a family member move that weekend.  Cause for suspicion, no?  Well a proper investigation would include but medical and factual inquiries.

If the parties want to go to a QME on the issue, there’s 15 days from the delay notice, another 30-60 days to get an appointment on the books, and then another 30 days or so at least for the report.  Best-case scenario, if a delay notice goes out on the same day the claim form comes in, we’re looking at 75 days for a report.  Realistically, though, the parties will not even have a QME evaluation set for within the 90-day period most of the time.

Aside from this, there is the matter of the factual investigation – a deposition, obtaining records, tracking down witnesses.  To complete a full investigation within 90 days is a challenge on its own.

So now let’s take a look at SB1127, which sounds a lot like SB335, originally discussed in your humble blogger’s earlier blog post.  SB1127, introduced earlier this month, would wreak havoc in a lot of ways:

  • It would increase the maximum weeks of temporary disability from 104 to 240 for post 1/1/23 injuries as found in Labor Code section 3212.1 (cancer and leukemia);
  • It would reduce the investigation period of Labor Code section 5402 from 90 days to 60 days; and
  • It creates Labor Code section 5414.3, which imposes penalties of 5 times the amount of benefits “unreasonably denied” for injuries under Labor Code section 3212 and 3213.2 (firefighters, law enforcement, etc.), up to a maximum of $100,000.  Most importantly, this would apply to all injuries, regardless of the date of the injury or the so-called “unreasonable” denial.

So let’s ask a basis question – if the employer has only 60 days to deny the claim, and cannot conduct a full investigation within those 60 days, is a denial on day 59 on the basis that “we have not completed our investigation and are awaiting additional records, reports, etc.” be “unreasonable?”

Your humble blogger imagines that, if SB1127 becomes law, we will see a lot more denials, but also a lot more depositions of claims examiners to build up these penalty claims.

As always, your humble blogger hopes that sense will prevail, and rather than squeeze every last drop out of California’s employers Sacramento will instead focus its efforts on creating a climate in California that allows businesses to thrive. As the saying goes, Hollywood makes entertainment, Silicon Valley makes technology, most of California makes food, and Sacramento makes it difficult.

Bradley vs. Kidd – Revisiting Kite

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Happy Wednesday, dear readers!  Last week, your humble blogger wrote about the Bradley panel decision, in which the WCAB held that a Kite addition was inappropriate as between two different systems of impairment (psyche and orthopedic) because neither reporting physician was competent to comment on whether the two should be added or combined. I also received a bizarre e-mail from the publishers of The Kite Runner (great book by the way!) telling me to stay away from their author and his kites.

One of my beloved readers sent me a copy of the WCAB’s decision in Kidd v. Alameda Contra Costa Transit District, another relatively recent panel decision from September of last year, which appears to go the other way from Bradley (no, dear readers, I’m not Kidding you…)

Applicant Kidd had claimed injury to her head, neck, back, shoulders, and psyche as a result of an MVA while working as a bus driver.  The psyche AME assigned WPI based on a GAF score of 55, and found that 70% of the psychiatric disability was caused by the MVA, 20% by the pain and physical problems resulting from the MVA, and 10% by non-industrial factors.

The orthopedic AME found 26% WPI for the cervical spine, 10% for the right shoulder, and gave a 3% pain add-on, also finding that 100% of the orthopedic permanent disability was caused by the MVA.

When asked, he psyche AME opined that adding the psyche WPI to the orthopedic WPI (as opposed to combining the two) was the best approximation of the disability because the orthopedic injuries diminished motivation to engage in activities, while the psychiatric disability lowered effectiveness of medical intervention. 

At trial, the WCJ added the permanent disability rather than combine it, resulting in an award of 92% PD.  Defendant appealed arguing that the appropriate PD is a combination of the 54% PD from the orthopedic claim and the 38% PD from the psychiatric conditions (this would have resulted in a final PD of 71%.

The WCAB denied reconsideration, adopting the reasoning of the psyche AME and the trial judge.

Your humble blogger of course was not participating in this case at all and is just being a Wednesday-morning quarterback, a back seat driver, an armchair general, etc.  So, of course, I’m going to handle this issue with Kidd gloves.  But looking at the breakdown and the reasoning from the psyche AME, we have 20% causation of the psychiatric permanent disability resulting directly from the effect of the orthopedic injuries, rather than the psychiatric injury directly from the MVA.  We also have the justification for adding permanent disability rather than combining it based on the orthopedic injuries causing withdrawal and less enjoyment in life.

In other words… aren’t all of these psychiatric issues compensable consequence of the orthopedic injury?  After all, we have the “pure” psychiatric injury resulting from the MVA, which is the cause of 70% of the permanent psychiatric disability.  But when you get to justifying the adding of impairment and 20% of the cause of the permanent psychiatric disability… aren’t all of these compensable consequences?

Well, then let’s look at Labor Code section 4660.1(c)(2) which specifically prohibits us from increasing permanent disability for psychiatric compensable consequences absent certain circumstances.  From your humble blogger’s review of the Kidd decision, it does not appear that the WCAB panel, nor the trial Judge, addressed 4660.1 as an argument so it’s not clear if it was raised.  But it would be interesting to try this argument should similar facts come up.

Furthermore, and, again, looking at the Bradley decision from last week – is the psychiatric AME competent to comment on the “synergistic” effect, or lack there of, between orthopedic and psychiatric disability?  Bridges only work if they connect both sides, so while the psychiatric AME might be in a good position to conclude that the orthopedic injuries increase the psychiatric burden, what is the evidence that the psychiatric impairment is increasing the burden on the orthopedic injury?

Recall please, the original Kite decision had to do with a panel QME concluding that the impairments assigned to each hip should be added instead of combined.  The same PQME had examined applicant for both hips and was competent to comment on hip impairment.  Kidd is taking it a step further.   In other words, to the Kite is the mommy goat, then Kidd is the… well… the Kid. 

Seeing how your humble blogger has exhausted his supply of both Kidd puns and comments, here’s hoping to see you on Friday again, dear readers!

Happy Presidents’ Day!

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Happy Monday, dear readers, and happy Presidents’ Day!

What originally started out as a day to honor the birthday of the American Cincinnatus eventually evolved into Presidents’ day.  In California, Presidents’ Day is a holiday according to the Rules of Court as well as Government Code 6700, which, for some reason, doesn’t refer to it as “Presidents’ Day” or even “George Washington’s Birthday” but only as “The third Monday in February.”

I imagine that one day children will ask their parents why the third Monday of February is such a special day, to which parents will answer “no one knows, sweetie, it’s a mystery lost to time…”

Anywho, any deadlines that would fall on today are extended to Tuesday, February 22, 2022.  Your humble blogger hopes that today is a day of rest for his beloved readers, and that instead of catching up on work, you are afforded an opportunity to celebrate, spend time with friends and family, and reflect on the rich heritage and history of the United States and the public-spirited nobility of its first President.

Till Wednesday, dear readers!

SB213 – More Brilliance from Sacramento!

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Happy Friday, dear readers!  Looks like we made it another week, although I’m sure many of us are already checked out, mentally and/or physically, for the 3-day weekend!

So, for those still with us, let’s do a quick pop quiz to get our minds working.  What weighs more, a pound of gold or a pound of feathers?  Now, you might instinctively say that they are equal in weight, but I assure you that a pound of feathers weighs much more.  You see, a pound of gold is just a pound of gold, but carrying around a pound of feathers also means carrying around the guilt of what you did to those poor birds…

Well, for those of you who are still with me and haven’t decided to banish me from your life forever, may I respectfully direct your attention to the latest poison slowly emanating from Sacramento?  To wit, Senate Bill – 213. 

SB213, the latest in Sacramento’s bizarre crusade to make access to a solvent hospital in California a thing of the past, would define “injury” to include infectious disease, and such an injury would be granted a rebuttable presumption of industrial causation for any “hospital employee who provides direct patient care in an acute hospital.”  Among the conditions that would be so presumed includes methicillin resistant staphylococcus aureus skin infections, bloodborne infectious diseases, tuberculosis, meningitis, and COVID19.

The proposed legislation would also create a presumption for a variety of types of cancer, musculoskeletal injuries, PTSD, and respiratory disease.

In other words, if SB213 becomes law, hospital employees’ skin and contents will be presumed to be injured on an industrial basis, shifting the burden on the defendant to prove that the injury is not industrial. 

Hopefully, SB213 wakes up to find itself on “bad-ideas-that-will-never-become-law Island,” and it will certainly not want for friends.  At some point, the legislature needs to stop thinking of employers as some endless piggy-bank to be looted.

Many of California’s employers might look at SB213 and think that hospitals are a special case and that such an attitude of turning employers into involuntary general health insurers will not affect them, but this is not true.  California already has various presumptions for law enforcement, firefighters, and corrections officers.  We saw a widespread COVID19 presumption apply to all employers in the case of outbreaks, with efforts already growing to delay the sunset of that law. 

Unless Sacramento’s behavior is put in check, the scope and breadth of presumptions will continue to grow, or, at least, your humble blogger, occasionally called the WC Oracle by the handsome man in the mirror, thinks so.

Have a good weekend!