Author Archives: Gregory Grinberg

New Record for Faintest “Injury” Resulting in Death Benefits Award

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So let me get this straight… applicant-nurse is “attacked” by a teen-aged patient and sustains a scratch and a bruise.  She shrugs it off and goes about her day.  Six days later she has a stroke (arguably caused by her pre-existing, non-industrial hypertension) and then dies more than a year later.  The panel Qualified Medical Evaluator finds her stroke and death to be non-industrial… and somehow the workers’ compensation Judge still comes down on the side of the applicant?

In the case of Amelia Mendoza (Dec’d) v. Workers’ Compensation Appeals Board, applicant nurse was evaluated for her scratch and bruise while she was suffering from non-industrial hypertension and high blood pressure.

The workers’ compensation Judge went so far as to say that the panel QME was a doctor “hired by defendant” and disregarded his opinions as influenced by a “bias in favor of a hospital where he may wish to practice and a defendant who he may wish to do QME work for.”  Still no word on whether chiropractor QMEs can be disqualified for “bias” because they may want to later serve as treating physicians for the applicants they evaluate.

After the trial, the WCJ awarded death benefits when no claim for death benefits had been made and the only issues at trial were Arising out of Employment/in the Course of Employment (AOE/COE) and applicant’s attorney’s fees.

So what did the WCJ base his conclusion on, if not the opinions of the “hired” and “biased” panel QME?  The treating physician – the one who:

(1) relied on the widower-husband’s accounts of the “attacks” who was not present during the time of the attacks;

(2) relied on a report of a head injury (which were not mentioned in any contemporaneous medical reports); and

(3) somehow found a causal link between applicant’s high blood pressure and the scratches she sustained during the “attack” simply because both were observed at the same time.

The Workers’ Compensation Appeals Board, in granting defendant’s petition for reconsideration, held that the WCJ appeared to imply that “when an employee with pre-existing nonindusrial hypertension seeks treatment for a minor industrial abrasion and exhibits concurrent elevated blood pressure, the employer thereafter becomes liable for all treatment and consequences of the employee’s elevated blood pressure.  That is not an accurate interpretation of workers’ compensation law.”

Not easily discouraged, applicant filed a petition for writ of review … which the Court of Appeal denied.

Appeals are expensive and time-consuming, but they are often worth it, especially in cases like these.  The defense stuck to its proverbial guns and didn’t allow its case to get steamrolled.  WCDefenseCA sends its salute to the Huntington Hospital. 

Concealing Car Accident Injury Leads to Felony Conviction for Fired Employee

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Workers’ compensation insurance is just that – insurance meant to provide speedy and practical assistance to workers injured while on the job.  It is not insurance against car accidents or a tool to get back at your boss.  For Yadder Espinosa, of Ventura County, this is somewhat of a rude awakening.

WCDefenseCA doesn’t normally name names, but when workers’ compensation fraudsters finally get the conviction (criminal, not moral) that they earned, your righteous blogger has no hesitation in saving potential-future employers of such criminals from making a hiring mistake.

The basic story is as follows:  Mr. Espinosa gets into a non-industrial vehicle collision and begins treating various body parts.  Some time latter, he is fired from his job and marched off the premises.  He then returns, allegedly to recover some personal items, before stepping on an imaginary banana peel and “falling.”  Refusing medical treatment, he then drives himself to the hospital and claims injury to the same body parts affected by the vehicle collision.

Throughout the claim, while receiving $40,000 thanks to his fraud, Mr. Espinosa didn’t disclose the vehicle collision or even the fact that he was receiving treatment for the injury.

District Attorney Gregory D. Totten is to be credited with securing a felony guilty plea to a violation of Insurance Code section 1871.4.  Mr. Totten intends to seek full restitution of the $40,000 wrongfully obtained by Mr. Espinosa.  In all likelihood, however, the money has been spent, in whole or in part, and there are no funds from which to reimburse the District Attorney’s office for its time, much less the costs incurred by the employer – think of the swarm of liens, the fee-hungry applicant’s attorney, and, of course, the cost of the defense.  The damage is done and defendant will probably never be made whole.

Such is the danger of allowing fraud to go unnoticed, unchecked, unpunished, or undeterred – the employer and the district attorney’s office are to be commended for holding the line in this case and setting an example for the rest of the workers’ compensation community.

Judges Doing Their Own Investigating? Not in My California Comp!

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A recent split-panel decision served to caution workers’ compensation Judges against looking for facts outside of their hearing rooms.  Check underneath the chairs, look between the cushion seats, and, if necessary, place a “lost and found” box on your desk, but confine your search for the facts to the four walls of your hearing room.

In the case of Alfonso Ponce De Leon v. Barrett Business Services, the workers’ compensation Judge elected to do some investigating, calling several physicians in defendant’s medical provider network to determine if applicant’s claims as to their availability (or lack thereof) were true.  If this sounds familiar, it may be because you read a post, sometime ago, about a WCJ who did an internet search to get the background of a defense witness.

Basically, applicant claimed that defendant’s MPN did not provide any orthopedic surgeons, within a reasonable geographic area, willing to take workers’ compensation patients.  Applicant (and applicant’s attorney) would like nothing better than to free of defendant’s MPN and pick a treating physician with the appropriate outlook and sensitivity to applicant’s “position.”

To determine if the allegation of a hollow MPN was true, the WCJ did not instruct the defendant to obtain written declarations from each physician’s office listed or request that applicant’s attorney personally speak to each doctor’s staff to determine availability.  Instead, the WCJ took a list of six doctors listed in defendant’s MPN with the appropriate specialty and geography, and picked up a phone.

Two doctors he did not call at all, one did not answer, one declined to take any workers’ compensation patients, and the remaining two offered to do an initial evaluation and establish a treatment plan.  From this, the WCJ concluded that applicant was free to go outside of the MPN “based on the failure of the doctors within the MPN to accept the applicant for treatment.”

The panel did not take kindly to judicial investigation.  Let’s just say that, in the panel opinion, the Judicial Code of Ethics was mentioned.  Nor was the two-commissioner majority persuaded that the fruit of the WCJ’s poisonous tree justified the findings of fact.  Your blogger’s favorite quote?  “Additionally, failing to reach a physician’s office with a single telephone call does not establish the unavailability of the physician.”

The dissent pointed out that the defendant had not raised the issue of the WCJ’s phone calls in its petition for reconsideration.  Also, the dissent interpreted the WCJ’s investigation as merely assisting the applicant in finding a treating physician.

If these were the WCJ’s intentions, circumventing the present conflict by bolstering applicant’s phone inquiries with the booming voice of the Board, then perhaps the action was noble… but no less inappropriate.  If the WCJ did not find applicant credible with respect to his claims, or found his claims unsupported, then such a finding should have been reflected in the conclusion of the proceeding.  But the WCJ did not take applicant at his word.

Defendant’s petition for reconsideration was granted.

Audiologists to Become QMEs

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Let’s say you want to get a qualified medical evaluator to take a look at the applicant’s hearing and determine if there is any basis for apportionment or to argue AOE/COE.  It’s simple, you would just request a panel in with the specialty of audiology, right?  What’s that you say?  There’s no such specialty… not even at the QME database on the Medical Unit’s website?

Well, it looks like there may be a change to that soon enough.  Assembly Bill 1454, introduced by Assembly Member Solorio (D-69th District), unanimously passed through the Committee on Insurance on March 28, 2012 and is on its way back to the Committee on Appropriations.

Some of my readers may recall that Assemblyman Solorio has been mentioned on this blog before, having exerted his influenced in an effort to see the temporary disability cap raised to 240 weeks.

We’ll have to keep our collective eyes on this one – before we know it, we may be fighting off prescriptions for blue-tooth devices and trying to figure out if the new crop of audiologists has an applicant bias.

No Temporary Disability for Fired Employees (Even Those Trying to Save the Beer!)

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Temporary disability payments provide an applicant with 2/3rd of his or her income while applicant can’t (or won’t) work.  What happens when applicant’s employment is terminated for cause while applicant is still “temporarily disabled”?  The obvious answer is a 132a claim, but one can expect allegations of discrimination no matter how egregious the applicant’s conduct was during the time leading up to the firing.

In the case of Ramon Flores v. Wal-Mart Associates, Inc., there was no 132a claim.  However, applicant was a door-greeter at Wal-Mart.  He noticed two individuals trying to leave with boxes of beer and, suspecting them of stealing, tried to stop them.  In a fit of alcohol-thirsty rage, the thieves knocked the brave applicant over and made their escape.  The fall was the mechanism of injury.  While giving his account of what happened, applicant was fired for violating firm policy.

My loyal readers may recall a similar case from the early days of this blog, where another employee exceeded his express duties of serving to “observe and report” by trying to catch bandits and sustaining an injury instead.

At trial in the Flores case, the defendant offered evidence that applicant as fired because he violated the company’s policy regarding shoplifting – a couple of cases of beer are not worth getting injured over, and they are especially not worth an employer paying the costs of a workers’ compensation claim.

In fairness to applicant’s position, your humble blogger must confess that the thought of perfectly good beer being kidnapped by thugs and eventually meeting a cruel fate in some horrid alley or parking lot triggers a considerable protective instinct that is hard to resist.  Nothing would bring me greater joy than riding to the rescue of said beer and enjoying the sweet rewards such libations have to offer.  Sadly, though, I am aware that we must all resign ourselves to helping the prosecution build a case against shoplifters and some amount of alcohol must be sacrificed in the process.

The workers’ compensation Judge ruled that applicant was entitled to temporary disability payments.  The defendant filed for reconsideration and the Workers’ Compensation Appeals Board granted, reversing the WCJ.  The reasoning in this case is key – citing Gonzales v. WCAB, the Board noted that temporary disability is a benefit which is paid while a worker is unable to work because of a work-related injury.  Here, applicant was unable to work, but not because of a work-related injury.  Instead, applicant was unable to work because he had violated a company policy and lost his job.

Wal-Mart deserves credit for having a clear company policy, regularly explained to the employees, and consistently enforced.  If another worker had received a medal for trying to stop shop-lifters, Wal-Mart would have been paying temporary disability and 132a supplemental benefits as well.

On Setting Up an Medical Provider Network (an Attorney’s Perspective)

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Mark Walls, manager of the Work Comp Analysis Group on LinkedIn, has an interesting article out about the pros and cons of medical provider networks.  The MPN is a subject oft-touched on by your humble blogger, and generally in a fairly approving tone, as it can be a very effective tool to cut costs.  However, as Mr. Walls points out, there are dangers to a creeping increase in costs.

Often the story begins with a pitch.  A slick, sharply dressed salesman or woman from an MPN will make a presentation about all the money that can be saved by switching to his or her MPN.  The doctors are great, efficient, and honest – they will not let sympathy or prejudice influence their medical opinions.  The MPN cuts costs like a civil war surgeon, hacking and slashing.  And how is this possible, the pitch continues… because the volume of “patients” allows less to be charged for each visit, treatment, etc.  So everybody wins!  The employee gets fast, effective treatment and the insurance company or self-insured employer gets a smaller bill.

But there are other costs that need to be weighed.  Mr. Walls points out that some MPNs tend to increase the frequency of visits, trying to make their money back in a different type of volume of business.  But there is another, larger cost as well.  Litigation.

As pointed on this blog again and again, the MPN must be done right, or not at all.  If the MPN is not properly set up and properly defended, then the applicant will run up a medical bill outside of the network and the defense will be end up writing larger and larger checks.  The MPN must include enough treating physicians of every type in every area an employee is likely to be (this includes chiropractors, unfortunately.)

The MPN must also have proper notices to the employee – multiple languages, regular updates, notice at hiring, injury, etc.  If your MPN salesman doesn’t know these rules or can’t detail how the MPN will provide these services, then perhaps more investigation is necessary.

Here is a suggestion – whether you have in-house workers’ compensation counsel, a panel of defense attorneys to pick from, or an outside firm that handles all your workers’ compensation matters, pick a veteran attorney who knows MPNs through and through, and have him or her sit in on the sales pitch, taking notes and asking questions.  After all, the odds are high that two years down the line, this lawyer will be fighting off non-MPN lien claimants or driving back the applicant’s attorney insisting that a shoulder surgeon in Washington is reasonable for an employee living in San Francisco.

Time and again, the lien claimants and the applicant’s attorney have tried to knock the MPN wall down, and with a few exceptions, it stands still (at least in California).  I would say it’s absolutely worth having an MPN if you can have one set up, I would just suggest having a workers’ compensation defense attorney you trust help from the start.

Court of Appeal Rules on Sudden and Extraordinary Case

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Your humble blogger was at his post yesterday, diligently fighting off claims and liens, when he suddenly received an alert of extraordinary nature.  The Court of Appeal, in an opinion posted only yesterday afternoon, has rendered its decision in the case of State Compensation Insurance Fund v. Workers’ Compensation Appeals Board, granting the relief sought by the defense.

In short, falling from a tree or ladder, while sudden for everyone and extraordinary for some professions, is not an extraordinary event for fruit pickers (avocados are fruit, right?)

Applicant Rigoberto Garcia had been working for his employer picking avocados from 35-foot-high avocado trees, using 24-foot ladders for roughly two months, when he suddenly fell from a ladder, sustaining various injuries, including an injury to the head. All aspects of his claim were admitted… except for the psyche claim.  The defendant raised the Labor Code section 3208.3(d) defense to psyche injuries claimed by employees with a less-than 6-month tenure.  This defense has been explored a time or two on this blog as well.

Applicant offered his own testimony at trial on the issue of the defense, claiming that he had never seen any other workers fall from a ladder with this employer, and was not warned at any time that this risk was common.  Defendant offered no evidence.

The workers’ compensation Judge found the injury was sudden and extraordinary, and the defendant filed for reconsideration.  The question that went before the WCAB was whether falling from a 24-foot ladder was a common risk to 35-foot avocado tree pickers, much like burning one’s hand while working as a drycleaner.

A split panel denied reconsideration, with the majority taking issue with defendant’s failure to present any evidence at trial as to the common occurrence of such falls.  In all fairness, the defense failed to carry its burden of proving the existence of gravity – the lawyers no doubt cursed themselves for failing to invest in apple orchards.

But, as all things that go up must come down (and there is nothing extraordinary about that), so, too, with applicant’s luck in the courts.  Defendant petitioned the Court of Appeal for a writ of review, arguing, again, that applicant failed to carry his burden in proving that the mechanism of injury was extraordinary.

The Court of Appeal, having watched the biography of Isaac Newton just the night before, granted defendant’s petition and reversed the WCAB.  The reasoning was, primarily, that common sense dictates that the injury-causing-event experienced by applicant was the exact type of injury one would expect would happen in applicant’s line of work.  Had applicant been attacked by a bear, the “extraordinary” element would have been much easier to prove.

So, the defense is now back to bearing the burden of proving common sense – what kind of injury can we expect from the following job duties…

Is a Hairstylist an Independent Contractor? WCAB Says “Yes.”

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Yesterday’s post covered proposed legislation to amend the definition of an independent contractor, repealing current Labor Code section 3353 and providing, instead, a list of factors to consider in determining whether a worker is an independent contractor or an employee (determining, also, if the principal must provide workers’ compensation insurance).

A recent writ denied case addressed this very issue.  In Margarita Aparicio v. Workers’ Compensation Appeals Board (2012), the WCAB had denied applicant’s petition for reconsideration of the workers’ compensation Judge’s ruling that she was an independent contractor and not an employee.  Applicant worked as a hairstylist at Unisex Barber, and claimed she had sustained a plethora of injuries during her 20 months as a hairstylist with defendant.

Defendant denied the claim on the grounds that applicant was an independent contractor:  she was not supervised, set her own hours, and provided her own tools.  Apparently, at the time that the professional relationship began between applicant and defendant, which applicant no-doubt, at least for the purposes of her claim, considered the “time of hire,” applicant had told defendant that she had a cosmetology license, although one was never actually produced.

Applicant failed to appear at a hearing and the WCJ issued a finding and award, finding that applicant was an independent contractor.  The fact that some supplies were provided to applicant during her work and that defendant had insured some of its employees did not seem to sway to the WCJ to a finding in the non-appearing applicant’s favor.

The testimony from the defendant at the hearing showed a typical hairstylist-hair salon relationship.  In some arrangements a barber or hairstylist will pay rent and pocket all the money paid by his/her clients, while in this case the hairstylist kept a portion of the money paid by her clients and was provided with a place to work and some supplies.

Under AB2373, perhaps the analysis would have been different?  After all, some of the factors in AB2373 would have worked in applicant’s favor:  she (at least by the time of her claim) believed she had entered into an employee-employer relationship, the services were integrated into the principal’s business operations, and several other factors might make it harder for a workers’ compensation Judge to find for the defense.

A written agreement may be of some use in such cases, to avoid future misunderstanding.  Perhaps requiring the contractor to purchase workers’ compensation insurance for him or herself would not be a bad idea either.

New Legislation to Define “independent contractor”?

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What is an independent contractor?  Presently, Labor Code section 3353 defines an independent contractor as “any person who renders service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which result is accomplished.”  Independent contractors are a different animal than employees – and workers’ compensation insurance isn’t necessary for independent contractors.

Assembly member Chris Norby (R-72nd Assembly District) introduced Assembly Bill 2373, which would provide a detailed list of factors to consider in determining if a person is an independent contractor or an employee.

Here is the list of factors currently proposed:

“(a)  The extent to which the principal controls and directs the manner and means of rendering the service.
(b)  The extent to which the principal provides training to the person rendering the service.
(c)  Whether the service rendered is integrated into the principal’s business operations.
(d)  The method by which the principal provides recompense.
(e)  Whether a continuing relationship exists between the principal and person rendering the service.
(f)  Whether the principal established the hours of work of the person rendering the service.
(g)  The amount of time required for the person to rendered (sic) the service.
(h) Whether the principal or person rendering the service provides the instrumentalities and facilities necessary for rendering the service.
(i)  The extend (sic) to which the person rendering the service is required to report to the principal.
(j)  The extent to which the person rendering the service has unreimbursed business expenses or investments in the business of the principal.
(k)  Whether the person rendering the service is engaged in a separate occupation or business or makes his or her service available to the general public.
(l)  Whether this kind of service is usually rendered under the direction of the principal without supervision.
(m)  Whether the parties believe they are establishing an employer-employee relationship.
(n)  The length of time for rendering the service.
(o) The extent to which the service pertains to the regular business of the principal.
(p)  The skill required to render the service.
(q) Whether the principal or person rendering the service have a right to terminate their relationship.”

This bill would provide a lot more for attorneys to work with when the question of worker status comes to litigation.  Perhaps the question of workers’ compensation should factor in as well – does the worker have insurance for him or herself?  Does the principal cover the worker?

One thing is certain – clear guidelines are very necessary in this regard.  One could hire a “contractor” to do work, and suddenly the contractor is an employee and the principal is suddenly in breach of the law by failing to insure his or her “employee.”

Tommy Jenkins Returns – and Files a Lien

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Do you remember Tommy Jenkins?  He was that annoying fifth-grade friend of yours.  He was that kid that was always the center of the world – everyone was just out to get him.  No matter what happened, it was all part of some effort by someone who “hated” him, especially the teacher (she was out to get him, you see).  As you know, Tommy grew up and became a lien representative in California’s workers’ compensation system.

In the case of Paul Allgood v. County of Los Angeles, the lien claimants, represented by Green Lien Collections, filed a petition to have the workers’ compensation Judge disqualified for bias.

At this point, your ever-realistic blogger must point out that everyone has a bias against lien claimants, including WCJs.  After all, lien claimants and WCJs are naturally enemies, just like lien claimants and applicant’s attorney, or lien claimants and defense lawyers, or lien claimants and other lien claimants.  If your garden variety bias served to disqualify WCJs, there would be no WCJs left to adjudicate these cases, and we would have to resort to picking champions and settling things via duels.

Basically, the matter was set for trial, and the WCJ ordered the matter continued and also ordered the doctor performing the services that were the basis of the lien to appear and testify at the continued trial.  The lien claimant petitioned for removal of the order and the order removal was granted.  The parties then returned for trial but the WCJ fell ill, so the trial was continued again.

The lien claimant was not fooled – he knows bias when he sees it!  The so-called “illness” was certainly a clever ploy to prejudice the lien claimant, because everyone knows that WCJs are impervious to injury and, having already waited for the case-in-chief to resolve, any further delay to lien claimant results in total destruction of its interests – lien claimant really needs that “355989” to keep the doors open.  (Apparently the lien is unclear as to whether the amount in question is $355,989.00 or $3,559.89.)

REAL bias is not a couple of continuances, as was the case here – the WCJ fell ill on the day of trial, what are you going to do?  In any case, the lien claimant’s efforts to have the judge disqualified only further delayed the matter by necessitating that the continued trial be cancelled and await resolution of the petition to disqualify.

Lien claimants are already establishing the image of actors pursuing frivolous actions or abusing process to shake down a settlement – now they are setting themselves up as cry-babies as well.  Say hello to Tommy Jenkins for me.