Author Archives: Gregory Grinberg

When the PQME Goes Ex Parte, Who Gets to Order a New Panel?

Posted on by
Reply

WCDefenseCA does not often agree with panel opinions which hand victory to an applicant at a defendant’s expense.  Grudgingly, however, your humble blogger is forced to agree with the panel decision in Darlene Berke v. Bloomingdales.

We all remember how Alvarez threw the workers’ compensation world, applicants’ attorneys and defense lawyers alike, upside down, keeping us guessing as to how trivial or administrative a communication could incur the punishment of an ex-parte sanction.  Subsequent decisions have since clarified this issue, but only a little.

Well, the Berke case did not reach that point.  Instead, it addressed the issue of who holds the right to demand a new panel under Labor Code section 4062.3(f).  Basically, the panel Qualified Medical Evaluator called the defendant’s office demanding payment of a deposition fee two weeks in advance of the deposition, complaining of a history of insurance companies not paying him.

The defense moved to have the panel stricken for ex parte communication – the PQME contacted them in an inappropriate manner (not in writing and not copied to both sides).  The workers’ compensation Judge and the Workers’ Compensation Appeals Board both ruled that the party not involved in the ex parte communication holds the right to request a new panel.

This makes sense, after all – imagine if any time the applicant was unhappy with the panel QME, he need only pick up the phone and talk about the weather for 10 minutes before he could demand a new panel.

However, that being said, if your ever-ambitious and power-hungry blogger should ever get his hands on a black robe and gavel, he could be persuaded that defendant’s position is the correct one under a particular theory.

What is this brilliant theory that your sharp-witted blogger hatched to bring glory to the defense community?  I’m so glad you asked!

In Berke, it was the PQME who initiated the contact and engaged in ex parte communication with a party.  In such a case, it is fair to assume that the PQME, either through ignorance of the law or through reckless disregard of it, has a habit or propensity of engaging in such behavior.  Therefore, if the defense knows that the PQME has engaged in ex parte communication with it, the defense can safely assume that the PQME has or will engage in ex parte communication with the applicant’s attorney.  Sometimes, such communications may go unreported by the other side.

Also, ex parte communication should come with a sanction of some sort.  In cases such as these, the parties are blameless, but the PQME is in the wrong.  Perhaps a loss of fees and probationary QME status is an appropriate punishment.

 

Sacramento CHP Officer Arrested for Fraud

Posted on by
2

Workers’ compensation fraud is always frustrating – and for good reason.  Not only does it make you realize that you have just wasted a fortune in undeserved benefits and unrecoverable investigation and prosecution costs, but it makes you a habitual cynic, mistrustful of seemingly honest and unfortunate injured workers.

This is especially the case when the act is committed by someone in a position of trust.  Firefighters are a good example.  Policemen are another.  But even the state capitol and its guardians are not immune to the corrupting influence of fraud.

Officer Tony Yao, a California Highway Patrol officer in Sacramento has been charged with felony workers’ compensation fraud.  As alleged, Yao claimed he had a back injury during firearms training while at the Academy, and then claimed his back pain was so severe he could not even do the office work offered to him.  An internal investigation revealed unreported past back injuries, completely unused exercise equipment (perhaps the result of a typical new years’ resolution?)

Given that some public employees such as law enforcement and firefighters tend to receive various beneficial presumptions in workers’ compensation, shouldn’t there be some additional penalties for when they commit acts of fraud?  Perhaps a reader more familiar than your focused blogger could comment as to this.

But if reforms are really in the air for the workers’ compensation system, perhaps additional penalties can be drafted into legislation and regulations to be imposed on the fraudsters who breach the public trust.

Grandchildren and Total Dependent Presumptions

Posted on by
Reply

As everybody knows, it is international California workers’ compensation death benefits week.  Much like our friends in France, Japan, and, of course, Brazil, WCDefenseCA is also covering various death benefits matters this week.  So, for today’s post, I have the privilege of presenting to you the panel decision of Vicente Zavala v. Sonoma Compost Company, LLC.

In Zavala, applicant sustained an admitted injury which resulted, unfortunately, in his death.  His widow, daughter, and grandson all claimed death benefits.  His widow easily established total dependency based on the presumption of Labor Code section 3501.  But what of his adult daughter and her child?

Labor Code section 3502 allowed the determination that the daughter was a total dependent, and the workers’ compensation Judge rejected the argument that the public assistance income counts as “other income” to negate a total dependency finding.

With the grandson, however, it gets a little tricky.  The grandson is a minor, so is he entitled to benefits until he turns 18 under Labor Code section 4703.5?  He wasn’t, after all, the decedent’s son, and decedent was not acting in loco parentis.  Furthermore, Labor Code section 3501(a) specifically excludes minors from the presumption of total dependency when there is a surviving total dependent parent, such as the child’s mother.

In short, the Workers’ Compensation Appeals Board granted defendant’s petition for reconsideration only as to the benefits to be awarded the grandson – he will not be a presumed total dependent.

Firefighter, Fighter, Fraudster

Posted on by
2

My dear readers,

Some of you may not realize how absolutely dedicated your humble blogger is to your continued entertainment and, to a possibly equal extent, to keeping you up to date on all the happenings of the workers’ compensation world.  Not only do I suffer the verbal abuse of applicants, their attorneys, lien claimants, and judges in defending the endless onslaught of claims… I am also willing to suffer the physical abuse that will no doubt follow this post.

A Los Angeles City firefighter was arrested recently for allegedly filing false workers’ compensation insurance claims.  After claiming he was unable to do his job as a firefighter, he continued to compete in various mixed martial arts events, winning a good number of them.  In fact, on March 7, he tweeted “[j]ust finished running 2.5 miles in 16:44 min.”

This is one of the more blatant examples of fraud in our system, but such stories are both good and bad for the industry.  On the bright side, the story highlights that fraud does happen; that it happens amongst some of the more highly regarded and respected members of the community (including police and firefighters); and that some people are just plain cheaters.

But such stories also have a negative effect.  They take away from the fact that most fraud isn’t this high-profile or blatant.  Most fraud includes subtle theft – claiming an injury prior to retirement; sitting at home instead of working while collecting disability checks; claiming a recovery from an injury to return to work, only to cause oneself greater impairment.

In this case, the fraudster (who is probably on his way over here to beat me up right now) screamed his deceit from the mountaintops – most of the parasites unlawfully draining the resources of California’s employers, insurers, and government entities are not so easily caught, nor their apprehension so widely broadcast.

Single Partial Dependent: $25k or $40k in Death Benefits?

Posted on by
Reply

*** UPDATE*** Court of Appeal has denied a petition for a writ of review.

An interesting panel decision sided with the defense on the issue of death benefits, and your ever-informative blogger is eager to share it with his ever-informed readership.  (The case is Devon Davis (Dec’d) v. Harrison & Nichols Trucking).

Employee-driver dies in as a result of an industrial injury, and his widow and minor son petition the Workers’ Compensation Appeals Board for death benefits.  Following a trial, the workers’ compensation Judge awards $250,000 to the decedent’s son and $25,000 to the widow.  The WCJ, however, reserves jurisdiction to determine if the son will be considered mentally incapacitated at age 18.

Both sides petition for reconsideration.  The widow claims that Labor Code section 4702(a)(2) allows, in cases of one total dependent and one or more partial dependents, a death benefit of $290,000, with $250,000 going to the total dependent.  Under her theory, she gets the remainder of the pot, which is $40,000.  The Judge, however, rightly rejected this argument in favor of Labor Code section 4703, which caps the recovery of partial dependents at $25,000.  The WCAB affirmed this decision and denied applicant’s petition for reconsideration.

Defendant’s petition for reconsideration, however, had to do with the WCJ reserving jurisdiction to determine the son’s dependency when he should join the age of majority.  The WCJ reasoned that it would be premature to make a determination as to the son’s capacity to work.  Here, the WCJ ran afoul of Labor Code section 3502, which requires determinations of dependency to be made at the time of injury of the employee.

Of interest here is that the WCAB, in dicta, noted that there was no evidence in the record to establish the widow’s dependency, but that the issue was not raised by the defense.  There are explanations for this – prior agreements between the parties, defects in the record, or simply an administrative gap between the record and the documents delivered to the WCAB.

In any case, it serves to point out that the issue of dependency should not be taken for granted – the Death without Dependents unit certainly yields no ground on this point lightly – nickels, dimes, and dead men’s shoes are all fair targets.  Well, neither should you – there is no reason why the defense should presume dependency, even if the Board and the applicant’s attorney are rushing to do so – there are all sorts of living arrangements with secondary income, cash jobs, etc.  A little snooping can go a long way.

Horseplay Defense Fails Yet Again

Posted on by
Reply

More and more, the horseplay defense appears to be no defense at all.  In the case of Robert Baeza v. Federal Express, the Workers’ Compensation Appeals Board denied defendant’s petition for reconsideration of the workers’ compensation Judge’s finding that the defense did not apply.

Applicant was collecting paperwork when a co-worker came into the office and “bumped” into him.  At trial, the co-worker testified to a playful bumping, horsing around.  Applicant was not amused.  Citing a general dislike for the co-worker, applicant shoved him back hard, intending to show displeasure but not to play around.  Applicant, apparently, bit off more than he could chew and ended up in the hospital, later claiming an injury to the left eye, bilateral upper extremities, left hand, and left knee.

The WCJ held that, because applicant himself was not engaged in horseplay, the horseplay of other employees can not provide a defense to the self-insured employer.

This case may sound familiar, and it should.  These facts are similar to those in the case of Sergio Nufio v. Bridge Hospital, LLC.  If two employees are horsing around, and one gets hurt, what’s to stop the hurt one from saying that he wasn’t having fun?  Unfortunately, the horseplay defense seems far too easy to defeat, and an overwhelming amount of evidence, usually from co-workers, will be needed to defeat an applicant’s version of the events.  But are you really going to find a lot of employee witnesses eager to testify against a co-worker?

More Employers Opt Out of Texas Workers’ Comp; Calif. Employers Stuck

Posted on by
Reply

One of the stories making the news around the internet is that Walmart has elected to opt out of the workers’ compensation system in Texas.  Now, now, before you get all excited about escaping a system that leaves every possible participant dissatisfied (except the occasional lien claimant), California does not allow its employers to opt out of workers’ compensation.  Texas and Oklahoma do.

Why is this relevant to California?  More and more businesses in California are finding the Golden State to be a bit too expensive for their business-blood.  When big-name employers like Walmart (and Target) decide the workers’ compensation system is not worth it, it makes waves in the news world and posits the question to California businesses – is California worth it?

As a defense lawyer, I am very well aware that my entire practice depends on employers staying in California and, ideally, growing in California.  Insurance companies understand this as well – the client, the customer, the almost-business-partner, is the array ranging from the solo practitioner who wants to get insurance for himself to the Walmarts of the world (but not Texas) buying insurance for their thousands of employees.

Applicants’ attorneys and labor unions don’t seem to understand this – even the settlers of Easter Island eventually realized that you can only cut down so many trees before there aren’t any left.

This blog has made the point before and will, with all decorum, make the point again:  unless something is done to cut the costs of the workers’ compensation system, Texas employers will continue to opt out, and California businesses will become Texas businesses.

What Happens When the Defense Goes Along with an Improper Panel Request?

Posted on by
4

A recent panel opinion discussed the issue of waiver in the context of workers’ compensation.  Your gadfly blogger will quickly run through the facts so he can begin yet another angry rant against the workers’ compensation system.  (The case is Israel Granados v. Barrett Business Services).

Applicant saw a number of treating physicians within defendant’s MPN for a variety of alleged injuries, including injury to the hand, arm, wrist, upper extremity, psyche, and in the forms of a sleep disorder and headaches.  So what’s the problem with humpty-dumpty?  He decided the treating physicians weren’t giving him a high enough rating and he elected to go outside the Medical Provider Network.

When the workers’ compensation Judge ruled that the extra-MPN reports were not admissible (see Valdez).  At that point, applicant demanded panels in various specialties, psyche amongst them, citing objections to the MPN treating physician reports.  This was a puzzling development, given that none of the MPN physicians had yet issued an opinion with respect to applicant’s psyche claim.

Defendant went along with the dance, striking one psyche qualified medical evaluator from the panel, requesting the remaining PQME address certain issues.  But, after reviewing the report, objected to the psyche QME as improperly obtained.  The WCJ and the Workers’ Compensation Appeals Board both found that defendant had waived his objection to an improperly requested panel (“we will deny reconsideration because by failing to object to the section 4062 and 4062.2 process until it was complete, the defendant invited any error and waived any objection.”)

The same treatment, however, does not often extend to applicants and their attorneys.  If you are reading this blog post somewhere with privacy, go ahead and raise your hand if you’ve had a Judge allow an applicant to get a second panel because he or she became represented after the first panel QME didn’t award total permanent disability for a paper cut, even after there was an evaluation and report.

This policy of waiver applies more evenly or fairly the higher one goes in the chain of appeal, but on the ground level, far too often there is leniency afforded to applicants and their attorneys that would get a defense attorney sanctioned.

In any case, the defense bar will just have to look at this as a training tool – under these conditions, we are always at our very finest in order to get the job done.

Judge Gene Lam Appointed Presiding Judge in Oakland

Posted on by
Reply

Word around the proverbial water cooler has it that Judge Gene Lam, of the San Francisco Board, is heading to Oakland to take over as presiding judge (effective April 16, 2012).  No doubt Judge Lam will be greeted every morning by the charming sight of Oakland’s finest protestors “occupying” Frank H. Ogawa Plaza (just yesterday morning, your ever-busy blogger witnessed city workers cleaning up the latest “art work” left behind by these fine, young people.)

In any case, WCDefenseCA congratulates Judge Lam on his new post and wishes him a smooth transition and a productive stay.

Serious and Willful Misconduct Filed by Tommy Jenkins

Posted on by
Reply

You remember Tommy Jenkins, don’t you?  He was your classmate in eighth grade who used to brag about how fast he could run.  When you didn’t believe that he was the fastest kid in school, he offered to prove it by pinching the neighborhood dog and outrunning him to the safety of the tree house.  Naturally, when Tommy got a cramp from all the candy he had been eating and ended up being bitten by the dog, he blamed you for putting him in the situation…

Tommy grew up and tried out for the Los Angeles Fire Department.  In the case of Michelle Mapstead v. Workers’ Compensation Appeals Board (writ denied), applicant filed a claim against the City of Los Angeles for her injuries sustained while involved in a firefighter training course.

Apparently she fell during an “up and over” exercise drill, sustaining injury to her back, chest, and respiratory system.  Although her case-in-chief settled, she continued to press her Serious and Willful claim against the City.

Serious and Willful misconduct, government primarily by Labor Code sections 4553 and 4553.1, requires the meeting of a fairly high standard for an applicant to meet in order to increase the amount of applicant’s recovery by 50%.  Basically, the employee needs to prove that the conduct of the employer, manager, or supervisor amounted to “an intentional act or an intentional failure to act, either with knowledge that serious injury is a probable result, or with a positive and active disregard for the consequences.”  (Johns-Manville Sales Corp. v. Workers’ Comp. Appeals Board)

Evidence presented at trial reflects that applicant had qualified for the firefighter program in 1994, but was put on the wait-list due to a hiring freeze.  She stopped keeping herself in that level of physical fitness about a year later, already giving up hope of ever being admitted into the program.  In 1998 she was offered enrollment into the program and she happily accepted, beginning the rigorous training program.

On the day of her injury, she was engaged in various drills, including the “up and over” drill.  As the various drills continued, she began to grow tired and feel weakness in her hands, although she kept this fact to herself and didn’t tell her supervisors.  Eventually, while climbing a 70-foot ladder as part of the drill, she fell and sustained her injury.

Her theory on the serious and willful claim, which probably had just enough merit to it to avoid a countersuit for malicious prosecution, was that the screening tests (like the one she passed in 1994) were inaccurate and that the Fire Department staff didn’t properly observe her to note her fatigue.

The workers’ compensation Judge, the WCAB, and the Court of Appeal all sided with the defense, reasoning that the conduct of the defendant was not malicious or reckless or intended to cause harm.  Applicant simply could not make the cut – she had done the same drill 18 times before, but was worn out by a mixture of other drills.

But let’s look at the other side of the argument.  Your humble blogger recognizes that as an attorney, his work does not often have the effect of life-and-death (there are rare moments when my expertise is sought to resolve knife-fights based on confusing Law and Order episodes, however).  But this is not the case for a firefighter – citizens depend on firefighters to protect their lives and property.  Firefighters depend on each other to get in effectively and get out safety.

Applicant failed to keep herself in proper physical shape to perform the job.  She failed to disclosure the physical limitations that developed between her physical screening and her entry into the academy.  She concealed her growing fatigue from her fellow trainees and instructors.

Had she, by some cruel twist of fate, become an active firefighter, who knows the lives and, of lesser importance, property that could have been lost through her unwillingness to communicate her limitations to her fellow firefighters.  And, after all this, she has the nerve to accuse the defendant of serious and willful misconduct.  Tommy Jenkins, alive and kicking.