Author Archives: Gregory Grinberg

Court of Appeal – Defendant Insurer for Stolen Checks

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The Court of Appeal issued its opinion in the case of Barrett Business Services, Inc. v. Workers’ Compensation Appeals Board.  Generally, when there is some sort of authority in workers’ compensation, the applicants’ attorneys and defense lawyers perk our legal ears up and pay attention.  After all, this is a fairly rare thing.

But this case was an example of three levels of missing a point – the workers’ compensation Judge, the Workers’ Compensation Appeals Board, and the Court of Appeal all missed something – the unequal treatment of applicants and defendants.

To summarize the case – applicant filed a claim for various injuries sustained while employed by Barrett Business Services, Inc. and he moved several times during the life of the case.  When the matter came to settlement by way of compromise and release, the defense sent to applicant’s attorney the settlement documents for review having placed an old address on the form.

The applicant’s attorney, after supposedly reviewing the documents, signed for applicant in accordance with the power of attorney granted to him, and walked the documents through.  Defendant sent applicant’s attorney a check for $3,000, and to applicant’s old address sent a check for $17,000.  Someone else found and cashed the check with a cash-checking service while pretending (apparently applicant’s cousin was living at his old address).

Applicant complained that he never got his money – and now the question arises: who is responsible for the $17,000?

Relying on the uniform commercial code, the Court of Appeal affirmed the WCJ and the WCAB in finding that defendant must re-issue a check for $17,000 and seek a remedy from the cash-checking service that allowed the money to be pilfered.

Now, your frustrated blogger understands the position that defendant is not blameless – sure, the wrong address was used and defendant had notice of applicant’s new address.  But applicant’s attorney was on notice too – after all, it is only because applicant’s attorney noticed the new address to defendant that defendant was on notice.

In other words, there were mistakes made on both sides, but it is only defendant that bears the cost of these mistakes.  It was applicant’s attorney’s job to make sure the documents were correct before signing them, and yet he gets to keep his $3,000.

The proper course of action in this case would have been to order the applicant’s attorney to send applicant a check for $3,000.  Then applicant can enjoy a $14,000 check from the defense and a $3,000 check from his attorney.  Now, applicant’s attorney can join the defense in seeking compensation from the check-cashing service.

There was a mistake made by both sides in this case, and for some reason the defense must again bear all the costs.

When Falcons Come Home to Roost – More NFL Drama

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California is home to an impressive array of professional sports teams.  The list goes on and on of the phalanx formed by the Golden State.  Look on our works, ye Mighty, and despair!  And know this – regardless of what happens on the field, the doom of your team shall be had in our workers’ compensation courts!

Previously, your diligent blogger had occasion to cover that point in space where professional sports and California workers’ compensation intersect.  Naturally – there’s no resolution yet as to how to avoid having California squeeze employers for the alleged injuries of their California-visiting employees.

It appears, however, that the Atlanta Falcons are not going to wait for California to develop her self-restraint:  moving with the National Football League, the Falcons are suing former players to force them to litigate workers’ compensation cases in Georgia rather than in California.

An arbitrator in Georgia, much like an arbitrator in Kansas, held that the players must abandon their California cases and pursue the cases in their employer’s state.  The Falcons and the NFL are suing to get a federal judge to order the players to abide by the arbitration ruling.  The arm of the federal government has grown long indeed if it can reach from Georgia to California.

I guess we’ll have to wait and see what happens – but this may set precedent for non-professional sports cases as well.  Perhaps employment contracts can include clauses requiring workers’ compensation claims to be brought in the employer’s state, and then injuries sustained at conferences and training seminars can be dealt with appropriately.

When WCDefenseCA knows more… so will you.

Opt Out of Workers’ Comp? Not in California!

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Maybe this whole workers’ compensation thing isn’t worth it.  After all, the purpose of the workers’ compensation system was a trade-off: employers get caps on their liability, employees get quicker access to benefits, and the variable of fault is no longer part of the equation.  So, slip on a banana peel at the supermarket where you work, and you get benefits, unless you were shopping on your day off, then you’re just a klutz.

But what if you’re an employer and you’re fed up with this ridiculous system!  You’re tired of applicant’s attorneys demonizing you to your employees; you’re tired of paying insurance companies or defense lawyers or being audited again and again by the state just for self-insuring?  What if you could just opt out?

What if an employer could opt out of the workers’ compensation system?

That’s not the thinking in California, but it is in Oklahoma.  Having passed the House and the Senate of the state where hard work still conquers all, the law now awaits calibration between the two houses of the state Legislature before going to the Governor’s desk.  Texas already has an opt-out process for workers’ compensation, but in typical Texas fashion, was the only state to do so (until now).

One of the stated purposes of House Bill 2155 is to “[a]ssist the state in attracting and retaining business, thereby contributing to the overall economic development and well-being of its citizens.”

But where would Oklahoma, as a state, attract business from … except other states?  Perhaps other states like … California?

Sacramento – the rest of the Union is out to poach California businesses.  Please don’t make it easy for them to do so by driving every employer off.

$8.9 Million Settlement in Workers’ Compensation Case

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What’s the highest settlement in a California workers’ compensation case you’ve ever heard of?  If you’ve been getting your news somewhere other than WCDefenseCA (and shame on you for that!) then you’ve seen the recent headlines regarding the $8.9 million settlement secured for a young applicant who claimed injury in the form of depression, cognitive deficits, anxiety, psychosis, self-mutilation and a diagnosis of multiple personality disorder.  Interestingly enough, there were no objective signs of a brain injury (negative MRI and CT scans).

The story, available on Yahoo Finance as well as other sources, had some interesting comments from the applicant’s attorney.  Specifically, the attorney commented on his practice approach – fewer clients and more time spent with each client.  In a time when the deposition may be the first time an applicant’s attorney meets his client, or perhaps the Board waiting room where the applicant’s lawyer will walk around shouting his or her name, this approach is refreshing – perhaps there is hope for the applicant’s bar after all?

Even if the panel process of Labor Code sections 4062.1 and 4062.2 doesn’t allow parties to get their own Qualified Medical Evaluator, when the stakes are this high, it may be worth it to retain an expert to help navigate the waters, even if the defense can’t compel an evaluation or get the report admitted.

Perhaps cases like these will help persuade workers’ compensation Judges to start holding applicant’s attorneys to the same standard of file review and case preparation as they do defense lawyers.

WCJ to Applicant: Pick up Your Burden!

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Apparently, they’re not handing out Order Granting Applicant’s Petition to Reopen, (or Ogapr, as your sentimental blogger’s great-grandma used to say) at some of the Board venues anymore.

In the case of Seb Baghoomian v. Workers’ Compensation Appeals Board (writ denied), applicant filed a Petition to Reopen for New and Further Disability and the workers’ compensation Judge, the WCAB, and the Court of Appeal were all having none of it.

Applicant was employed as a foreman in 2003 when he was attacked by four thugs while filling up gas on a work-related trip between Pasadena and San Francisco.  He was unconscious for five minutes during the attack but eventually returned to work for about two months before he quit.

Applicant sought treatment for neck pain and left-sided numbness and weakness, also filing a claim for injury to the back, head, and psyche.  The claim was settled by way of stipulation in December of 2007.

In July of 2011, applicant filed his petition.  The matter went to trial but the WCJ denied applicant’s petition, reasoning that applicant had failed to carry his burden of proof as set out in Labor Code section 3202.5.

At trial, applicant presented several PR-2 reports from his primary treating physician, but offered no narrative reports or reports of any kind from the treating physician to actually support the theory that he had sustained new and further disability.   The WCJ also rejected applicant’s efforts to allow him to develop the record, citing the Elias case mentioned on this blog some time ago.

Perhaps the burden of proof still falls on the applicant now and then, which is not something this cynical blogger can object to with any conviction.

Is 15 Miles Too Long to Drive for an Evaluation?

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The panel Qualified Medical Evaluator system certainly has its advantages – less doctor-shopping, less doctor and deposition fees, etc.  On the other hand, it has the ridiculous effect of sticking parties with a list of three (effectively two, once the other side uses its strike) choices in who the panel QME will be.  After all, the physician may not be actually qualified or may have an applicant’s bias (“What do you mean it’s NOT industrial? There is no such thing!”).

Parties will try every trick in the proverbial book to get out from under a bad panel.  The recent case of Sharon Frink v. Shasta-Tehama-Trinity Joint Community College is no exception.  The basic point of this case was that applicant was evaluated by a PQME in Anderson, California.  The PQME then moved his office to Redding, California.  The two offices were 15 miles apart.

Naturally this warrants a new panel, because the doctor was obviously “unavailable” under California Code of Regulations section 34(b).  Applicant’s attorney moved for a new panel and the defense filed a petition to compel attendance at the PQME’s new office in Redding.  Reading the plain language of the rule, the workers’ compensation Judge ordered the Medical Director to issue a new panel.  It may be just your beloved cynical blogger’s observations, but it seems that asking a WCJ to apply the plain language of a rule or statute is usually a fruitless effort when done by defendants.

Defendant promptly petitioned the Workers’ Compensation Appeals Board for removal.  Dear readers, if you are wondering why this issue was not the subject of a petition for reconsideration instead, might I suggest you glance at the “Reconsideration or Removal?” posts.  In granting the defendant’s petition for removal, the WCAB held that “the Legislature intended to prevent the AME/QME selection process from restarting where there is a reasonable possibility that the injured worker return to the same medical evaluator.”  This policy “both minimizes medical-legal costs and thwarts attempts to doctor-shop.”

In other words, a 15-mile-drive is not an unreasonable burden for the applicant to undertake.

WCDefenseCA is 200 Posts Strong!

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WCDefenseCA is happy to celebrate it’s 200th post!  Thank you to my dear readers who have subscribed, e-mailed, called, visited, re-visited, and declined to note the obvious.  (You call this a blog?  Where are the pictures of cats doing funny things?  Isn’t that what the internet is for?)  WCDefenseCA’s readership is somewhat of a (very well informed) club.  To celebrate, today’s post is about another kind of club…

One of the stories making the news is that of a state correctional officer who claimed his gunshot wound, sustained while in a San Francisco “sex club,” was industrial in nature.  (Honestly, folks, I don’t make these up!)

The correctional officer, while engaged in his duties as a prison bus driver, was spotted by a parolee, a violent felon, who then proceeded to shoot the officer.  At least, that was the officer’s theory.

The prosecutor in the officer’s attempted perjury case had a different one – the officer was engaged in a… well… in an act with another club patron’s “female companion,” while that club patron was engaged in what was likely a similar act with the officer’s wife.  An argument broke out and the result was the officer’s injury.  Not exactly industrial, even if the shooter was never caught and the cause of the shooting was “mysterious.”

The jury found both the officer and his wife guilty of attempted perjury.

Thanks for reading!

The WCAB is Consistently Inconsistent

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If today’s blog post appears to be the product of an attorney, fiercely committed to the defense of his clients, but tragically suffering from vertigo, that attorney hopes you will forgive him – one of the more recent Workers’ Compensation Appeals Board panel decisions has left his head spinning.

A little background – we all read the Breanna Clifton v. Sears Holding Corporation case where three WCAB commissioners unanimously held that “a defendant may satisfy its burden of proving it has a properly established and noticed MPN by asserting that it has an approved MPN and requesting judicial notice of the inclusion of its MPN in the list of approved MPNs on the [Administrative Director’s] Web site, and by offering unrebutted evidence that it provided the required notices.”

It was all so simple – and now it’s not.  (Are your spider-senses tingling yet?)

In the recent case of Juan Carillo Matancias v. Milk Maid Dairy, applicant sustained an injury to his knee, when a birthing milk cow pushed him through a fence.  He was treated by a physician within the Medical Provider Network and then released from care seven months later.  At the time of the injury, applicant was provided an explanation of the MPN and a link to a website listing all of the MPN doctors.

Applicant was unhappy with being discharged to return to work and sought additional treatment from a non-MPN physician.  After the trial and conclusion of the case-in-chief, lien claimant sought to have its $15,000 bill paid by the defendant.

But the defendant had Clifton.

Raising the MPN defense to the lien, the defense had to sustain an adverse ruling from the workers’ compensation Judge who found that it is the defendant’s duty to prove the MPN is valid, even it the lien claimant does not raise it as an issue at trial, and the fact that the MPN is listed on the AD’s website is “weak sauce,” as the kids are known to say these days, without the defendant presenting that evidence at trial.

Nor did the defendant obtain relief from the WCAB, with two out of three commissioners holding that the MPN defense fails because there was no proof that defendant informed applicant, at the time of his discharge, that he could challenge the release from care or that the lien claimant was not in the MPN.

But even if we were to concede these facts, the lien claimant KNEW that it was not entitled to payment.  The lien claimant, a repeat player, built its business model around charging ahead with providing treatment, and then litigating the costs to recover payment.  After all, even without the lien claimants experience with other cases, the objection letters from the defendant came early and came often.

In any case, perhaps, dear readers, we must do the MPN dance at trial, regardless of the facts.

 

Man/Woman Who Attacked Defense Attorney Sentenced

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Andre Torres, now a female, was recently sentenced to 11 years to life in prison for the brutal 2010 knife attack against a workers’ compensation defense attorney in Los Angeles.

WCDefenseCA is known for making sarcastic jokes and poking fun at the more insane aspects of California’s workers’ compensation system, but this story is not a source of amusement by any means.

Torres, a man at the time of the attack, overheard that the victim was a defense attorney with the same firm that resisted Torres’ workers’ compensation claims some time ago.  The victim had never actually worked on Torres’ case.

Torres stabbed the victim from behind with a butcher knife and the victim and a passing-by good Samaritan eventually managed to subdue Torres’ long enough for law enforcement officers to arrive.

California’s workers’ compensation system is one riddled with frustration and difficulty for  all parties involved.  Defense attorneys, adjusters, and employers must always be on their guard for situations such as these.

Although there were no threats made in this instance, if any are made they need to be dealt with seriously and immediately – violent attacks such as these can and do happen.

Be safe out there, dear readers, and your determined blogger will endeavor to do the same.

Paying for Surgery Twice – Problems with Medicare Set-aside Agreements

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What happens when Medicare Set-aside Agreement treatment occurs before the approval of a Compromise and Release?  That is what appears to have happened in the case of Carolyn Christian v. TJ Maxx, as covered excellently by Jennifer C. Jordan, Esq.

Medicare Set-aside Agreements are a paralyzing element in California workers’ compensation.  Applicants’ attorneys and defense lawyers must send away for an agreement as to the future medical treatment of an applicant prior to settling, and wait for various amounts of time before approval by the federal government.  Perhaps because workers’ compensation benefits are so often used as a supplement to retirement income at the end of a workers’ career, MSA problems are close to the top of the list of problems with the system.  WCDefenseCA has had occasion to cover this topic a time or two before.

In Christian, applicant entered into a compromise and release agreement with defendant which included an MSA.  One of the items listed on the MSA, which defendant was including in the compromise and release amount, was knee replacement surgery.  Well, after starting the MSA process and before getting approval of the compromise and release agreement, applicant had the procedure performed, and was looking forward to receiving the same benefit twice – both the treatment and the cost of the treatment.

The defense had other ideas about how this works.  Seeking to have the C&R set aside as either the result of a mutual mistake (at best), or the product of fraud (at worst), the defense met with resistance from the workers’ compensation Judge and the C&R was not disturbed.

The WCJ reasoned that applicant might need a second knee replacement surgery in the future, but the defendant appealed, and the Workers’ Compensation Appeals Board ordered additional hearings on the matter.

Perhaps we should begin including terms in our compromise and release agreements to the effect that the amount due after approval shall be reduced by the amount of MSA contemplated treatment received before the date of approval?