Author Archives: Gregory Grinberg

Is a Venue Fight Worth It? Part 2 of 2

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Yesterday, your fearless blogger got on his soapblog and ranted about the reasons why local rules are an evil reality of California Workers’ Compensation practice.  Rather than using this blog to vent my professional frustration upon my poor, unsuspecting readers, this was actually in the context of the greater issue of venue – why it matters, and why it’s worth fighting for.

Now, let’s roll up our sleeves and look at the details of how venue is determined.

Venue is set by statute under Labor Code section 5501.5, at least in terms of where an application can be filed.  Subsection (a) holds that an application may be filed in the county where (1) the injured employee resides at the time of filing; (2) where the injury allegedly occurred, or, in cases of cumulative trauma, where the last alleged injurious exposure occurred; or (3) in the county where the applicant’s attorney maintains his or her principal place of business.

Note that, right out of the gate, the applicant has near total control of venue – by moving, even for a few months in order to establish proper venue, applicant can control the venue.  When my cynical imagination has full run of my waking state, I picture a sinister applicant’s attorney advising the injured worker to move to county X for a few months, file an application, and then move back – guaranteeing a favorable result!

Fortunately, subsection (c) allows the defendant to object, to venue based on the attorney’s place of business alone, and the statute requires venue to be changed to option (1) or (2), the residence or location of injury, so long as the objection is made within 30 days of receipt of the Notice of Application (California Code of Regulations § 10410).

But what if there is no Board office available in the county where applicant resides or was allegedly injured?  For example, if an applicant lives and works in San Mateo, San Mateo County, and sustained her injury there – where is she to file?

Subsection (d) requires the application to be filed in the nearest venue to that county, in this case probably San Jose.

It is important to note that section 5501.5 is not applicable only within the discretion of the Board – the law is mandatory!  (See Domino’s Pizza, insured by State Compensation Insurance Fund v. Workers’ Compensation Appeals Board (Don Kerr).

So applicant has filed an application at the appropriate office, that office now has venue.  (California Code of Regulations § 10408).  And now that there is a proper venue, either party may file a petition to change venue under Labor Code section 5501.6, including for the convenience of witnesses.  Either party has the right to object within 10 days of the petition being made (California Code of Regulations § 10411).  My more steadfast readers will know that, unlike witnesses, the convenience of applicant’s attorney is irrelevant.

Is a Venue Fight Worth It? Part 1 of 2

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The venue of a workers’ compensation case might seem like a relatively unimportant issue for someone outside the workers’ compensation industry.  After all, the case-law, labor code and California Code of Regulations are all state-wide in application right?  Sadly, if the Easter Bunny, Santa Claus, and state-wide uniformity of workers’ compensation law were all helping you paint your house, you would be engaged in a solo project.  All three are, of course, figments of the imagination.

If you are not familiar with the sad reality of “local rules,” I am sorry to be the one to burst this proverbial bubble for you.  Each venue has its own rules as to procedure, filing deadlines, etc.  For example, the accepted custom at Fresno is to have all exhibits filed and served twenty days before the trial.  If there are more than twenty days left until trial, the other side does not want them, and neither does the Board.

On the other hand if you appear for a Mandatory Settlement Conference in Oakland without your exhibits (and an EAMS separator sheet for each one), with copies for the applicant, lien claimant, Board, and curious strangers passing by, you’re not going to have a lot of material to work with come trial.

Just about every administrative director, including the recently appointed Rosa Moran, has sworn to stamp out local rules for the various boards. Although the Workers’ Compensation Community is readily giving of its best wishes, its confidence in such a matter is considerably more shy and reserved.

Aside from local rules, issues such as cost of travel, reputation of judges (sadly, some Workers’ Compensation Judges are known to be more receptive to one side than the other), and availability of witnesses all play into the question of whether it is worthwhile for a party to fight for a change in venue.

So, now that you are thoroughly persuaded that venue does matter, come back tomorrow morning for the procedure and law behind it all.

Messele to Apply Prospectively

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The Workers’ Compensation Appeals Board has issued yet another en banc Messele case, this time deciding that its prior decisions will only apply prospectively, and not retrospectively.  You can read the full opinion here.

In other words, if you were used and abused by the Medical Unit in the past, stuck with an improperly issued panel, you have no recourse but to try to reason out some valuable life lesson to be gained from the experience.  But in the future, at least in theory, the Medical Unit will be required to abide by the strict timeline outlined by the WCAB.

Aside from my cynic compulsion to doubt the happy endings promised at the start of every endeavor, I honestly don’t see much changing in how the Medical Unit does its work.  In six months, the medical unit will again start issuing panels without reviewing applications and say that they simply have too high a volume to review and reject wrongly filed requests.

Then, defendants and applicants will each get a panel and the defendant will have to file a Declaration of Readiness to Proceed to Hearing in order to get the applicant’s attorney’s improperly made request for a panel out.

In other words, learn the new dance, same as the old dance.

Employer as Nanny

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I hope my dear readers had a wonderful Thanksgiving.  I wish I had a great decision to show you on this welcome-back-to-work morning.  But, sadly, all I have for you is more pocket-picking of a California employer.

The Court of Appeal recently declined to review the decimation of Bridgestone Firestone in the case of Bridgestone Firestone v. Workers’ Compensation Appeals Board (Ronald Fussell).

Applicant, a diabetic, was a territory manager for defendant-employer when he sustained an industrial injury to the left ankle.  Following two surgeries and the use of a custom ankle brace, applicant eventually returned to work, only to have his condition worsen.  Ultimately, applicant underwent an amputation of his left leg below the knee.

The Workers’ Compensation Judge found applicant to be 100% disabled, and awarded over $220,000 in attorneys fees to his attorney, and COLA payments beginning in 2004 (the WCJ’s award predates the Supreme Court decision on proper calculation of cost of living adjustments).  In doing so, the WCJ rejected the opinion of the treating physician that 40% of the disability was caused by applicant’s “non-industrial non-compliance with activities of daily living …  non-compliance has every thing to do with choices that the patient makes on his own, despite knowing that he is not following the doctor’s recommendations.”

The basis for this rejection was applicant’s testimony that, because he lived in a second-floor apartment and there was no elevator, he had to “hop” on crutches to get up the stairs, and could only use the doctor-recommended wheel chair while actually in the apartment.  The WCJ reasoned that the defendant could have built an elevator for applicant or, in the alternative, relocated applicant.  Therefore, it was all defendant’s fault and no apportionment is called for.

I suppose the image of a cackling adjuster comes to mind, smoking a cigar and smiling sinisterly at the thought of the poor applicant not being able to effectively use his medical equipment.  The more likely scenario, of course, is that applicant said nothing to his doctors, employer or the adjuster until it was too late.  There was likely never an opportunity for defendant to act, because there was no knowledge of a need to act.

Medical apportionment based on applicant’s pre-existing diabetes was likewise rejected, on the grounds that applicant had never sustained trauma to his left ankle before the industrial injury that was the subject of this case.  The opinions of applicant’s treating physicians, concluding that the diabetes had slowed the post-surgical recovery process, did not sway the WCJ or the WCAB.

Before defendant could blink, a simple left ankle injury resulted in an amputation and a 100% PD award.  The only parting advice I could offer from this case is to obtain accurate living conditions information from the applicant, such as where he lives and his domestic set-up.  This can be done through a deposition or through a written questionnaire (although a deposition is preferable).

With this information, it is possible to keep the treating physicians apprised of whether their recommendations are feasible given the applicant’s circumstances.

Happy Thanksgiving!

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A pessimist will tell you that circumstances couldn’t possibly be any worse, and an optimist will tell you that they most certainly could.  On Thanksgiving day, even your humble cynic, your loyal pessimist blogger, knows it could all be worse.  Though times can be rough, skies cloudy, and the future uncertain, we all have much to still be thankful for.

So enjoy the video, remember to say thanks, and have a great Thanksgiving!

Giving Even Less Credit Where Credit Is Due

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A recent case (Sompo Japan Insurance Company of America v. Workers’ Compensation Appeals Board) popped up on my radar as an employer tried (and failed) to contract around workers’ compensation benefits.

Gerald Lark was employed by Canon Business Solutions when he allegedly sustained an injury to his back, left shoulder, psyche and internal system.  A few days after the date of injury, applicant entered into a “severance agreement and general release,” by which the employer would pay applicant 44 weeks of wages.  When applicant was released to work roughly a month after his date of injury, there was no job to return to.

Applicant filed a declaration of readiness to proceed to an expedited hearing, claiming he was owed temporary disability.  The Workers’ Compensation Judge concluded that applicant was entitled to ongoing temporary disability payments and that defendant was entitled to no offset or credit for the 44 weeks of severance already paid.

The Workers’ Compensation Appeals Board denied defendant’s petition for reconsideration, adopting the WCJ’s report and recommendation.  The WCJ argued, in his report and recommendation, that reconsideration should be denied because the severance agreement was not reviewed by a Workers’ Compensation Judge.

But… applicant got the money.

Temporary disability is paid out at 2/3rd of an applicant’s income, for up to two years.  Here, applicant is receiving his entire paycheck for 44 weeks (or 57 weeks of temporary disability), presumably all at once.

Yet, defendant is somehow not entitled to credit for money already paid.  Does it really matter what we call it?  Severance, temporary disability, get-well-soon fund, it shouldn’t matter.  Applicant received a benefit from his employer and, pocketing the money, now wants more.

Sadly, the Court of Appeal denied defendant’s petition for a writ of review, and thus declined to correct this injustice to an employer.

Hunting and Workers’ Compensation

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The King of Sweden was out hunting, hoping to bag a big moose.  As he walks through the woods with his servant, he comes to a clearing where he sees another hunter.  Upon seeing the King bearing his shotgun and obviously out for a moose hunt, the hunter raises his arms and loudly says “Don’t shoot, I’m not a moose!”  The King, wasting no time, shoots the unfortunate hunter.  When the King’s servant asks, in a shocked and shaken voice, why the King shot the hunter, after the hunter said he wasn’t a moose, the King cleared his through, and in his most regal voice, explained:  My good man, I believe you misheard him.  He did, in fact, say “Don’t shoot, I am a moose.”  It doesn’t really matter who heard right because, after all, moose, even in Sweden, can’t speak.

So why, on the Tuesday before Thanksgiving, do I relate this story?  Because of a different story I read recently (although the story itself is from 2009).

It appears that, while on a turkey hunt, a man under suspicion of committing workers’ compensation fraud saw the man investigating his claim.  Intentionally or accidentally, the man shot the investigator, there conducting surveillance.  That ought to give the next investigator some pause before checking up on an applicant’s limitations.

I know this story is old and takes place in New York, but with Turkey Day two sunrises away, I couldn’t resist telling my patient and forgiving readers about it.

Gobble Gobble!

On the 240 Week Bar to Death Benefits

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There are times when, as a California Workers’ Compensation defense attorney, one can’t help but sigh in frustration.  Now, I don’t sigh in frustration when I need to put in extra hours on a case, when an issue is challenging, or when opposing counsel decides to go by Dick instead of Richard.  These are just parts of the job and, after all, “this is the business we’ve chosen“.    What makes your overworked and underfed blogger sigh?

Imagine reading through a file, and realizing that the procedures up to this point were handled flawlessly by a dedicated and knowledgeable adjuster, the law is clearly on the side of the employer, and the defenses are all mustering to protect the defendant from liability.  Then you hear the voices…

First there is the voice of applicant’s attorney “blah.. blah… blah… injustice… blah… blah.. unfair… blah… blah… my fee!”  Then there is the voice of the Workers’ Compensation Judge: “Well, Mr. Grinberg, don’t you think it’s unfair to deny a poor widow her husband’s death benefits over some mere technicality?”

In the case of Kathleen Brezensky (widow) and Chester Brezensky (Dec’d) v. Workers’ Compensation Appeals Board, that “mere technicality” was the statute of limitations under Labor Code section 5406(c).

Applicant sustained an industrial injury in 2002, and died in 2009.  An application was filed in 2010, and defendant raised the statute of limitations defense.  The WCJ concluded that the case could proceed and the statute of limitations defense failed because applicant did not know, until after the death of her husband, that the industrial injury of 2002 was the (theorized) cause of his eventual death.

Defendant petitioned for reconsideration, and the Workers’ Compensation Appeals Board rescinded the WCJ’s order and issued a “take nothing” order for the applicant-widow.  Relying of a California Supreme Court case, the WCAB found that there can be no claim for death benefits if the death occurs more than 240 weeks after the alleged death-causing injury, regardless of applicant’s awareness of what caused the death.

In other words, the 240 week limit applies even without any knowledge on the part of the applicant.

One of the benefits of operating in a system where anything can happen, is that… well… anything can happen, including the proper application of the law, without passion or prejudice, even in the cases of sympathetic applicants.  Fortunately, the defendant in this case chose to go the distance and petition for reconsideration.

The Court of Appeal subsequently denied applicant’s petition for reconsideration.

Your humble blogger has, at times, been called many less-than-flattering names for his refusal to side with poor widows and orphaned children in such cases.  All my sympathies go to those poor people injured, unable to work, or grieving for a lost family member.  But when one’s heart overflows with sympathy, we send flowers and a card – we don’t rob a blameless victim, like the employer.

Not Giving Credit Where Credit is Due

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Do you remember Tommy Jenkins?  He was your annoying friend in fifth grade.  He would sit next to you at lunch time, wanting to “share” your fruit snacks.  Of course, as soon as your fruit snacks were gone, Tommy would reach into his lunch box and pull out his chocolate covered wafers.

The nerve!  The gall!  THE CHUTZPAH!  Here is this kid enjoying the fruit snacks of your labor, the ones you begged your mom for and endured steamed vegetables to get.  And now you can’t even get a share of his chocolate treats.

Well, Tommy grew up, and eventually filed a workers’ compensation claim.  This time, however, he was not content with the money in his employer’s cookie jar, and wanted what was under its mattress as well.

In the case of State Compensation Insurance Fund v. Workers’ Compensation Appeals Board, defendant had advanced over $11,000 for a 2003 injury.  Following the enactment of SB899, the Workers’ Compensation Judge, awarded roughly $6,300 for the 2003 injury and $4,800 for the 2007 cumulative trauma.  (There was also a 2000 cumulative trauma, but that did not play an important role in this case).

Defendant sought credit, which the WCJ allowed.  But at that point, applicant petitioned for reconsideration. Recognize the chutzpah?  Already, applicant has gotten more money than he is entitled to, and now he wants to go deeper into the defendant’s pocket and get more!

In a decision based seemingly on some warped perception of “fairness,” the WCAB granted applicant’s petition, reasoning that defendant should not get the benefit of both apportionment and credit.  (Folks – I’m not making this up, this was the reasoning!)  The WCAB also expressed concern that an alternative result would leave the applicant with no “new money” for his 2007 injury.

I can only hope that this was just a “bad day at the Board” situation, and we won’t have to see similar decisions again.  Of course, hope and four quarters will buy you a dollar’s worth of lobbying money with which to change the law.

More Fraud and Loathing in Buena Park

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Some time ago I blogged about Sim Hoffman & Company, accused of committing vast amounts of fraud by billing for services never rendered to applicants and other schemes.

It appears that although Justice is coming, it is riding the California High Speed rail and thus taking its sweet time.

The case has been continued again, this time delaying the arraignment until January 6, 2012, according to adjuster.com

There are plenty of defendants out there who still have active liens from Advanced Professional Imaging and Better Sleeping Medical Center who need some sort of decision from the criminal fraud aspect of this case before they can decided whether they should pay or not.

In any case, dear readers, hopefully when Justice does deal with this case, it will be to the benefit of the workers’ compensation defense community.

As always, when I know more, so will you.