Author Archives: Gregory Grinberg

132a and the Kitchen Sink Subpoena

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Labor Code section 132a allows applicants to sue their employers for “discrimination,” which is normally some allegation of an adverse action taken against an employee because of an industrial injury.  By law, employers may not be insured for 132a claims and must bear the risks of liability and the costs of litigation themselves.  Non-workers’ compensation attorneys often find themselves asked to advise their business/employer clients in 132a matters, thinking this will be no different than contract disputes or employment law litigation.  It is different – save your sanity and contact a workers’ compensation attorney to help navigate the murky, murky, murky waters.

Recently, the Workers’ Compensation Appeals Board issued a panel decision in a 132a case, granting defendant’s petition for removal of a workers’ compensation Judge’s discovery order. (Lidia Borrayo v. Tobar Industries.)

To prove her case of discrimination, or possibly to scare the defendant into settling, applicant’s attorney proceeded on a protective order instructing defendant to produce voluminous records, including trade secrets and information about third-parties (other employees).  The defense lawyer properly sought removal (as opposed to reconsideration) seeking a significantly narrower scope for the discovery order.

Among the information originally sought was the amount defendant pays for workers’ compensation insurance, for its group health insurance, employer profit and loss statements for 2008-2010, balance statements, and a significant amount of information about other employees laid off or hired in the past.

The WCAB correctly reasoned that allowing the discovery order to stand would subject defendant to significant prejudice and irreparable harm, and ordered the case returned to the WCJ to have applicant prove that this seemingly irrelevant information is “reasonably calculated to lead to the discovery of admissible evidence.”

Applicants will often enough serve an employer with a “kitchen sink” subpoena, wanting anything and everything, most of which is completely irrelevant to the 132a claim.  Part of this is because applicants’ attorneys don’t want to waste their time narrowly tailoring a subpoena when there is a chance an uninformed defendant will comply with all of it.  Part of this is because the prospect of burdensome and exhausting discovery compliance can scare up more settlement dollars if the employer is not properly advised.

If you find yourself on the receiving end of these boilerplate subpoenas, have your attorney push back – there’s no reason why a former employee who will likely go to work for a competitor should be provided with your trade secrets.

DIR to Hold Public Forums

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Do you ever get frustrated with California’s workers’ compensation system?  Do you get angry with the ongoing litigation and the ever increasing attorneys’ fees?  What about the way the system turns mildly injured employees into completely system-dependent non-workers, relying on their lawyers to continue pumping unnecessary benefits out of employers and insurers?

Well, if you are frustrated by this and more, there are only so many things you can do.  One option, of a somewhat limited effect, is to start a blog and rant into the internet (you get to meet a lot of nice people that way, actually).  Another, of course, is to bend the ear of the Department of Industrial relations, and tell them: “Now see HERE!”

What’s that? You don’t think the DIR cares what you have to say?  Well, you couldn’t be more wrong – “The Department of Industrial Relations (DIR) and the Division of Workers’ Compensation (DWC) will hold a series of public meetings across the state to provide open forum discussions on the current issues in workers’ compensation and to gather information from stakeholders and members of the public on suggestions for improvements.”

So if you are in Sacramento, Los Angeles, Fresno, San Bernadino, La Mesa, or Oakland (oddly, not San Francisco), don’t miss your chance to attend one of these quasi-town hall meetings.  If your ever-busy blogger can slip away from his desk for a few hours, he will try to sit in on the one in Oakland.  Would anyone care to meet me there?

Testimony will be limited to 3 minutes per speaker, unless the speaker can make his or her testimony rhyme, in which case he or she will receive six minutes and possibly some applause.

I have been personally asked to advise my spirited and passionate readers that pitchforks, torches, huge cauldrons of heated tar, and bags of feathers will not be allowed at the hearings.  

No Work Permit? No Problem!

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In the case of Felix Nino Mota v. Allgreen Landscape, applicant sustained injury to various body parts, and his claim was eventually resolved with a stipulated award of 89% with future medical care, namely in-home care which his wife began providing.  Mrs. Mota entered the country legally but did not establish she has the right to work in the United States.  She learned how to take care of her husband from his nurses and doctor.

Applicant’s wife sought to have defendant pay the value of her in-home care services.  Defendant countered with an offer to provide 16 to 18 hours of home health services daily with a licensed vocational nurse.  Applicant refused.

Following a trial, the workers’ compensation judge ruled that the Immigration Reform and Control Act of 1986 does not bar applicant’s wife from receiving the “reasonable value of her services.”

In denying defendant’s petition for reconsideration, the Workers’ Compensation Appeals Board held that Mrs. Mota’s services were not subject to utilization review, even though they were never requested by a treating physician, because the services began before Labor Code section 4610 became effective, and because defendant was aware the services were being provided.

With regard to the issue of Mrs. Mota’s work status, the Workers’ Compensation Appeals Board held that applicant’s wife is not defendant’s employee, so the question of federal law does not arise.

The basic result of this case has two equally alarming effects: (1) the defendant is no longer allowed to control treatment, and must allow applicant’s wife to provide in-home care rather than providing a professional of its choice; and (2) the defendant is forced to provide payment to a person who has no right to work in the United States in violation of federal law. In fact, it is possible that the WCAB would force an employer to pay an illegal immigrant to provide in-home services to an employee who was also discovered to be an illegal immigrant.

The WCAB relies on the reasoning that “[i]f applicant had chosen to move to Mexico after his injury for medical treatment and rehabilitation, and if Mrs. Mota had provided exactly the same services, defendant would be liable for those services, and there would be no issue as to her employment status or her right to reimbursement.”  But Mrs. Mota has the right to work in Mexico, and not in the United States.

Perhaps the defendant might consider retaining a lawyer for a federal removal action to see if the federal law is really as undisturbed as the WCAB suggests.  After all, if the federal government can so casually disrupt settlement proceedings with its Medicare Set-aside Analysis requirements, invalidating a WCAB decision should be no problem.  In any case, applicant’s attorneys may have stumbled upon a way to gather income for their clients, regardless of work status, by having non-work eligible spouses provide “home care.”

On PQMEs and Work Restrictions

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Before the Panel QME process became mandatory, a California workers’ compensation defense lawyer faced a different landscape when it came to resolving medical disputes.  Sure, one could always go the Agreed Medical Evaluator route, just as now, but there was a certain honesty and freedom in the way contested disputes were resolved.

Every applicant’s attorney would rent his favorite quack who came with standard-issue Humpty-Dumpty goggles, and every defense attorney would retain a reasonable and qualified physician to offer a medically appropriate evaluation of the applicant’s alleged injuries.  How dare you suggest that your balanced and honest blogger is showing some sort of defense bias?  Nothing could be so wrong or hurtful!

Now, however, the landscape is a bit different – unless the parties can reach common ground with an AME, they are forced to saddle themselves with a PQME.  This gives rise to several problems, but one in particular is the focus of this blog post – work restrictions.

Your typical PQME has a practice treating patients and, to supplement the coffers, accepts PQME evaluation referrals under the state workers’ compensation system.  Dr. PQME knows that no doctor-patient privilege exists because Dr. PQME knows that the applicant is not there for treatment, but for an unbiased evaluation of such issues as causation, impairment, and apportionment.

Imagine a typical PQME – from 9:00 a.m. to 3:00 p.m. the day is stacked with 20-30 minute appointments with treating patients who need the PQME’s opinions to get better: the only one who suffers if the patient isn’t telling the truth is the patient.  After a day of such encounters, the PQME starts his medical-legal evaluation of the applicant.  If the applicant says “I can’t do X” the PQME typically writes down, “applicant can’t do X.”  When the applicant later says “I’m better now, I can do X,” Dr. PQME obliges again, and lifts the work restrictions.

But, legally, the PQME has a duty to both parties – no longer the pocket expert of one attorney or another, the PQME must protect the injured worker from future injury, in that the PQME must impose work restrictions, but also protect the employer in that the PQME must not clear the applicant for work that could aggravate the injury.

What your humble blogger is suggesting is that PQMEs must make more effort to objectively, and personally, evaluate the work restrictions that are appropriate.  It appears there are far too many cases of restrictions imposed and described simply to increase the applicant’s recovery based upon the subjective complaints.

PQMEs are not in the position of the personal physician and should not treat medical-legal evaluations as regular doctor-patient meetings, trusting applicants at their respective words regarding work restrictions.  Rather, PQMEs should follow medically objective standards instead of allowing the applicant to write his or her own work restrictions (and impairments too).

And when PQMEs let subjective complaints and the applicant’s pen decide work restrictions?  The applicant collects higher permanent disability pay-outs before miraculously “recovering” and enjoying lighter work restrictions.  Only by relying on objective signs of impairment can a PQME independently verify applicant’s statements – those that inflate impairment and those that release work restrictions.

Perhaps this is just empty ranting, but your forward-looking blogger hopes that every reform begins with a blog post from an angry workers’ compensation defense attorney.

Jealousy and Death on the Job

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When workplace violence occurs, and when employees are injured, who has to pay?  Well, the answer, often enough, lies not in the “who” but in the “why” – what was the motive for the violence.  As we saw in a previous post, sometimes the motive for a workplace murder remains a mystery, and in those cases the applicant’s surviving dependents can usually recover a death benefit, the workers’ compensation system giving them the benefit of the doubt.

In one recent case, Mariela Paredes (Deceased), Efren Caprio v. Ralph J. Maiello DDS, Inc., applicant’s mother was murdered by her widower when he came to the dental office where she worked and opened fire, shooting four people and killing her.  You may have even seen this one in the news.

The decedent’s widower, the one pulling the trigger, discovered that she had been having an affair with a co-worker, having been informed by family members who worked with the deceased.  His own investigation revealed over 5000 minutes of cell-phone conversation between the two and one nude photo sent by his wife to the man she was having an affair with.

Decedent’s widower made threatening phone calls to the phone number on the cell phone records, and repeatedly made comments to the effect he was going to come to her office and do something.  Decedent persuaded her co-workers that he was not actually going to do anything, but was just blowing off steam with empty talk.

After decedent’s murder, the applicant’s guardian ad litem pursued a claim for death benefits, claiming that the death was sustained in the course of and arising out of employment.

The attorney for the defense argued that the death was not a result of anything work-related, but was purely personal in nature, a position with which the workers’ compensation Judge agreed.

The bottom line in this case is that the connection to the employment was pure coincidental – decedent’s widower had tried to catch her in the act away from work, but was not able to do so.  Because there is no real connection between the injury/death and the employment, other than an accidental stage, the injury itself is non-industrial.

But what about the three other shooting victims?  If they have no connection to decedent’s widower, are their claims industrial? We’ll have to wait until we see those claims come forward.

Marguerite Sweeney Appointed to WCAB

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The world of California workers’ compensation is a buzz with news of Governor Brown’s new appointee to the Workers’ Compensation Appeals Board.  Filling one of three vacancies, Governor Brown’s website announced on St. Valentine’s Day that Marguerite Sweeney, of Redding, would be appointed to the WCAB, pending Senate confirmation.

Soon-to-be Commissioner Sweeney is an applicant’s attorney and has received words of praise from former chairman of the WCAB, the Honorable Doug Moore, who calls Sweeney a “straight shooter.”

Commissioner Sweeney, WCDefenseCA will temporarily forgo its customary cynicism to congratulate you, and to hope that your tenure will be one remembered for justice for both applicants and defendants, crushing and punishing defeat for lien claimants, and speedy access to the final resolutions so often sought and so commonly delayed by the workers’ compensation system.

Law firms, lawyers, and all other participants eagerly await to see Commissioner Sweeney in action.

EAMS to Allow e-Filing and Paper Filing

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Are you an EAMS e-filer?  Why not?  If you’re not an e-filer, you have to file everything on paper, let the Board choose a hearing date for you, and have very limited access to those documents already filed.  Until recently, though, you had one decisive advantage even if the system failed- you could still file by paper.  EAMS was an all-or-nothing system in which the entire firm had to e-file or paper file, but not both.

Well, it appears the Electronic Adjudication Management System is moving to a new stage.  Workers’ compensation attorneys, both defense and applicant, will be allowed to both e-file and paper file, as they like.  In other words, you can sign up to be an e-filer, reap the benefits of online access to filed documents and choosing your own hearing date, and yet still file by paper whenever you like, at least according to this release by the DWC.

In order to become an e-filer, parties will still be required to go through the EAMS training and register.

So, have you made the switch to EAMS?  Do you wish you could switch back out?

A Very Special Valentine’s Day Blog Post

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One of the most romantic things a man and woman can ever do is to get married in a spur-of-the-moment event with the overarching goal of avoiding being forced to testify at a deposition in the other’s workers’ compensation case.

Applicant, in the case of Ricardo Mota v. Cast Aluminum & Brass Corporation, testified at a deposition to having, in the past, had a drug abuse problem.  When pressed for details, he testified that his “wife” knew about them.  Defendant’s investigation revealed that Mr. Mota’s “wife” was actually his long-term girlfriend, and so objected to applicant’s raising of the marital privilege against having this “wife” testify against applicant.

Defendant noticed applicant’s “wife’s” deposition, setting if for October 20, 2011.  On October 19, 2011, at 4:31 in the afternoon, defendant’s attorney’s office received a license and certificate of marriage showing that applicant and his wife were now married (as of October 12, 2011).

The workers’ compensation Judge declined to issue an order compelling the new Mrs. Mota to appear and testify at her deposition, citing Evidence Code section 970.  The Workers’ Compensation Appeals Board also declined to grant defendant’s petition for removal, incorporating the WCJ’s report and recommendation.

It looks like the rules of Evidence do apply in workers’ compensation (sometimes).  In any case, your still-cynical blogger is happy to report that love is alive and well, even in the workers’ compensation system.  Happy Valentines day!

Going and Coming Rule Fails

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The “going [to work] and coming [from work]” rule is a subject that surfaces now and then in the world of workers’ compensation.  After all, injuries can happen anywhere, so why not while going to or coming from work?

The defense generally provides that an employer is not liable for workers’ compensation benefits for injuries sustained in transit between home and work or work and play.  But the defense is not a stone wall, smooth and solid and impenetrable, but rather a chain-link fence, with plenty of gaps, patches, and weaknesses.

In the case of Jesus Felix Castro v. State of California, Department of Forestry and Fire Protection, applicant was a seasonal firefighter, who sustained a devastating injury as a result of a catastrophic car collision while he was on his way to work.  The attorney for the defense naturally raised the going and coming rule – on the way to work means on the way out of the California workers’ compensation system, generally speaking.

But the defense failed.

Applicant presented several witnesses, Mr. Castro’s co-workers, who testified to the effective requirement of bringing one’s own car to work.  There was more than one fire station to staff, and a firefighter never knew where he or she would end up working that day.  As such, employees had to bring their own car to work to get from Station A to Station B, as necessary.

The workers’ compensation Judge and the Workers’ Compensation Appeals Board both held that the injury was compensable.

Bear in mind, learned readers, this holding is not new or off-the-cuff.  This holding was also issued in Smith v. Workmen’s Comp. App. Bd. (1968) “Surely in this day of a highly motorize society we cannot cast the going and coming rule as a protective cloak over the shoulders of the employer who, for his own advantage, demands that the employee furnish the car on the job.”

But this case does serve to remind employers, especially those in the private sector, that there is no such thing as a free lunch – money saved in shifting the cost of the travel between work sites to the employee can cost a lot of money in the form of an otherwise barred workers’ compensation claim.