Ok dear readers, welcome to Friday!

We’re going strong through the first month of 2022, but I just have to ask… have you updated all your pay rates for the new year?

If not, here are few things to keep in mind:

SAWW increase for 2022 as compared to 2021 is 13.5213%, which means that if you have a file with a life pension that needs a COLA adjustment, make sure you’ve updated your pay rate!

By the same token, TTD rates have gone up as well, with the minimum going from $203.44 to $230.95 and the maximum going from $1,356.31 to $1,539.71.  If you are paying maximum TD more than two years after the DOI, make sure to update the rate as well.

The mileage reimbursement rate has also increased, from 56 cents per mile to 58.5 cents per mile.

Minimum wage has also increased, from $15.00 per hour for employers with more than 25 employees, and $14.00 for employer with 25 or fewer employees.  Accordingly, if you are paying TD based on minimum wage and the date of injury was more than two years ago, you may want to adjuster your TD rate accordingly.

SB331 has taken effect, meaning that any clauses restricting disclosure of various bad acts by employers, specifically harassment, discrimination, or retaliation are rendered unenforceable going forward.  Does your settlement paperwork come with a resignation letter that limits what applicant can say about his or her employer? Time to review that paperwork for statutory compliance…

AB286 was signed into law on October 5, 2021, and regulates various aspects of the food delivery industry, including prohibiting the food delivery platform from keeping any portion of the tips given to the delivery workers or food facility.   That means that it might be time to recalculate average weekly wages, since tips previously kept by your favorite food delivery app may now have to be paid to the applicant instead.

And, of course, there are those new WCAB regulations mentioned earlier on this must humble of blogs. 

Now, you  might be thinking to yourself – what about COVID?  Well, dear readers, as you know, your humble blogger has a severe Golden Retriever complex – nothing makes me happier than making people happy.  But even I can’t keep up with the changing rules on COVID19.  Remember when we were supposed to quarantine for 14 days?  Well the CDC now wants the infected but symptom-free to return to work after 5 days.

And what about SB1159 and all those COVID19 presumptions?  Well those will stay in effect until the end of 2022 unless some legislative action is taken, so there’s nothing new there.

Did I miss any, dear readers?  If so, please let me know.  Best submission gets a free subscription to the blog.

Have a great weekend!

Happy Wednesday, dear readers!

Who is ready for a blast from the past?  Workers’ comp has aged your humble blogger a lot, so while the past might not seem too long ago in the real world, cases from pre-2013 seem like ages ago to your humble blogger.

That being said, who remembers the 15% increase or decrease in permanent disability for dates of injury post 1/1/2005 to pre-1/1/2013?  (Labor Code section 4658)  Back in the day, if an employer with at least 50 employees failed to make an offer of regular, modified, or alternative work on the appropriate form, the permanent disability was increased by 15% for the periods after the 60 days afforded the employer to make the offer.

There were TONS of cases about the application of this rule, often with ridiculous application.  Making an offer in a letter was sometimes insufficient; the burden of proving the number of employees was on the employer; all sorts of craziness too numerous to fully recount.  Fortunately, SB-863 did away with this: the 15% increase or decrease in PD was replaced with entitlement to the voucher, and either a no-lost-time or actual return to regular work negated the need to make an offer.

So let’s take a look at the panel decision in the case of Morales v. AO-Cal Poly Corp.  There, applicant claimed the right to a 15% increase in PD from her 2008 injury.  Defendant contended that there was no basis for the increase because defendant was under the “reasonable, though incorrect belief that applicant had voluntarily left her employment.”  Although the WCJ ruled in favor of the defense, the WCAB reversed, reasoning that the actual offer of work is a prerequisite to consideration of employee-termination of employment – whether actual or erroneously perceived.

Aside from the 4658(d) discussion, the Morales panel decision provides a lot of great guidance on other issues as well.  Citing Kite for the proposal that impairments can be added rather than combined “when substantial medical evidence supported the notion that the two impairments had a synergistic effect where, in effect, the resultant impairment was more than the sum of the two impairments”, adding impairments was rejected in the Morales case when the psyche QME recommended adding impairment to the orthopedic rating – “here, one specialist is suggesting that we add impairments found by her in her own specialty to impairments in a completely different body system found by a different specialist.” 

Finally, the WCAB rejected the psyche QME’s 3% pain add-on, citing Labor Code section 4660’s directive that the AMA Guides (and the 3% pain add-on found therein) are to be used in rating “physical injury or disfigurement.”  According, Morales held that the AMA Guides 5th Edition cannot be used to add impairment based on pain to a psychiatric injury, confining the finding of psychiatric impairment to the GAF score system.

If you get a chance, read the Morales panel decision (feel free to shoot me an e-mail for a copy).  It’s concise and well-reasoned and addresses some of the more reaching arguments being cooked up.

Straight on till Friday, dear readers!

Happy Monday dear readers! And happy new year too!

Here we are in 2020 part two 2022 and ready to bravely face all the new fun and adventure that awaits us.

There is just so much to go over that it won’t fit in a blog post, possibly not even ten blog posts, but let’s do our best and see how far we get.

Most urgently, the WCAB announced new regulations effective on January 1, 2022, in terms of procedures to be observed before the WCAB, which can be viewed in full here.

I would suggest everyone, attorney and adjuster alike, review these new rules, but here are the big takeaways, at least according to your humble blogger:

1. Attorneys and hearing representatives must now list their e-mail address in any notice of representation, and service can now be effected by e-mail, even without prior consent, but a proof of service must reflect the e-mail used for service;
2. The WCAB has authority to make any hearing an electronic hearing, including trials and expedited hearings, and Notice of Hearing must reflect whether the hearing will be electronic or in-person.  If a party objects to a trial or expedited hearing being conducted electronically, it must make an objection and the presiding Judge should make a ruling on the issue.  A party may request to appear electronically for an in-person hearing by filing a petition to that effect and citing good cause;
3. Parties must meet and confer BEFORE a mandatory settlement conference occurs, and should have a completed Pre-Trial Conference Statement ready to be filed before the end of the hearing.  Further, each party must have a person available with settlement authority at every hearing and defendants must have a Benefits Printout available for inspection at the Mandatory Settlement Conference.

So, what does your humble blogger recommend?

When the claims department gets a notice of hearing, THAT is the time to provide your attorney with a current benefits printout and to make sure that there is settlement authority, or at least schedule a time to talk to your attorney to provide settlement authority.

There also needs to be someone prepared to address settlement at every hearing.  This means that adjusters must adopt similar procedures to their attorneys – if you can’t be available on the day of the hearing by phone, someone else needs to be.

In determining whether to ask a hearing be held in person or electronically, one of the issues to consider is whether credibility is at issue, and what is the best way to allow the trial judge to assess credibility.  While electronic trial allows the Judge to see the witnesses without a mask, variables such as camera quality and internet connection might make that determination less effective as compared to in-person testimony with a mask on.

Buckle up, dear readers, the fun is just beginning!

Happy Wednesday, dear readers! 

A question for you – in school, did you learn about the Great Chicago Fire of 1871?  Well, as legend has it Mrs. O’Leary’s cow knocked over a lantern, starting a fire that spread throughout most of the city.  The damage was devastating, including loss of life and property damage, but the aftermath was astounding as well.  Chicago, founded roughly 100 years prior to the fire, was now rebuilt as one of the more modern cities in the world.

Fast-forward to today.  In March of 2020 we all went into lockdown, and suddenly a large section of the labor force was working remotely – not as an exception, a gimmick, or an accommodation, but as the norm.  Almost two years later, many of California’s tech firms that once attracted labor with promises of catered lunches, massages, and celebrity appearances at the employer’s campus are now considering whether those offers are still competitive against offers to work remote permanently.

In a lot of ways, remote working is fantastic.  Time spent commuting can now be spent for other purposes, work can be done in comfort, safe from the illnesses that rampage through crowded workplaces, and, as Californians can appreciate more than most people in the country – an opportunity to live somewhere with a lower price-tag. 

But, this far out from our black swan event, we are seeing more and more consequences of shifting from being at work with other people every day to being at home with a computer screen all the time.  According to this article, a study from the American Psychiatric Association study of 1,000 people shows a majority reporting isolation, loneliness, and other mental health impacts as a result of working from home.

Now forgive me, dear readers, but your humble blogger can’t resist the urge for a shameless plug for a presentation about defending injuries allegedly sustained while working from home.  Let your humble blogger know if you’d like a presentation in your office on this subject!  Each presentation comes with free dad-jokes from your humble blogger.

Anywho, the sample size is small and self-reported, so let’s not assume that this is an epidemic within a pandemic, but it’s not beyond the realm of possibility that working from home is going to change the landscape of the workers’ compensation industry. 

Logic dictates that office jobs tend to be a bit less extreme than non-office jobs: your typical injuries will be strains, sprains, carpal tunnel, perhaps some psyche?  Of course, there is the occasional workplace violence, but the more physically arduous jobs, those that cannot be done remotely, will yield more frequent and significant injuries. 

But now that the novelty of working from home has long ago worn off, I think we can expect to see an uptick in injuries that will result from such a set-up: poor ergonomic work stations and the psychological effects both of limited social interaction that naturally occurs at work, for better or for worse, and even those effects from the lack of bodily movement that comes with preparing for and enduring the commute. Recall, dear readers, that the AMA has recognized obesity as a disease all the way back in 2013.  

What about the psychological effects of erosion of the boundaries between “work” and “off work?”  What is the psychological effect of being “always on” for calls, e-mails, zoom meetings, etc.  From personal experience, your humble blogger always being prompt to respond to work e-mails and phone calls, regardless the hour, I can attest that it certainly is not for everyone.  Lawyers, to some extent, are trained to do this and expect it as part of the job, but many traditional fields did not have such an understanding.

Chalk this up as just more fallout from the “new normal.”

Till Friday, dear readers!

Happy Monday, dear readers! Your humble blogger has a short post for you that serves as a cautionary tale for all of us with our eyes on deadlines!

As you may recall, on Columbus day I offered this post, which pointed out that while the California Courts consider Columbus Day a holiday, the state of California does not.  Well, we now have a very recent and fresh panel decision from the WCAB on this very point!  Your humble blogger is trying his best not to be hurt by not being cited as an “authority,” but such is life.

Fun fact, dear readers, did you know that The Big Lebowski is citeable authority, should you for some unimaginable reason need to appeal to the authority of that piece of movie gold?  You can read about it here.  There, dear readers, that’s a thing you know now…

Anywho, the decision is in the case of Vanlandinham v. American Services & Products, Inc.  In that case, the WCJ issued a decision on September 16, 2021, but the petition for reconsideration was not filed until October 12, 2021.  The 25^th day was October 11, 2021, which was Columbus day.  The WCAB then rejected the petition as untimely because “[a]lthough Columbus Day was observed on Monday, October 11, 2021, the Appeals Board was open for filing on that day.”

The attorneys appear to be likely safe from a malpractice claim, as the WCAB also noted “[i]f the petition had been timely, we would have denied it on the merits” but this case is a cautionary tale for all of us down in the trenches of the WCAB.  Columbus Day is being treated as a regular working day for purposes of the WCAB.

But, let’s take it one step further – had this been an appeal filed with the Court of Appeal from an adverse decision on Reconsideration, would it have been timely?  Well, it certainly appears that the filing party would have gotten the extra day under the California Rules of Court.

So, to all those venturing into the workers’ compensation swamp from the sunny lands beyond, your humble blogger can only say “hic sunt dracones”

Happy Monday, dear readers!

It’s beginning to look a lot like Christmas – Mariah Carey’s “All I want for Christmas is You” is blasting from every store and radio station, Amazon boxes are piling up on porches, and e-mail auto-replies are outnumbering actual messages.  What a wonderful season!

Now, while the above is the norm now adays, the workers’ compensation system has a strong opinion on what is normal and what is… extraordinary.  That’s right dear readers!  This is a post about the sudden and extraordinary exception to the 6-month employment rule of Labor Code section 3208.3(d).

The basic rule is that there is a bar to psychiatric claims for employees with a tenure of under 6 months, but not if the psychiatric injury is the result of a “sudden and extraordinary employment condition.”  The case law is fascinating in this field because we get an interesting peek at to what is considered normal and what is considered extraordinary.  For example, a wet sidewalk is not an extraordinary condition (it does rain, after all). 

The case law has also established that it is applicant’s burden to prove that the employment condition was extraordinary, and that it is the employment condition that must be extraordinary, not the catastrophic results of the injury.

So now consider the case of Emery v. Hertz Corporation, a recent panel decision.  The WCJ determined, after trial, that applicant’s psychiatric injury was caused by a sudden an extraordinary condition, defeating the 6-month employment bar.  The mechanism?  An irate customer yelled at applicant over the phone, threatened to sue, and then also threatened to come to her worksite and teach her a lesson about customer service.  Applicant also claimed the caller threatened to “shoot” her or “hurt” her. 

Generally speaking, workplace violence is an “extraordinary” event, with the exception of some professions that deal with violence regularly, but what about threats of violence?

The trial Judge found that a credible threat of workplace violence qualified as “extraordinary,” relying on the standard set out in Matea v. WCAB  — “the types of events that would naturally be expected to cause psychiatric disturbances even in a diligent and honest employee.”  If you got a call from an angry customer threatening to come to your workplace and shoot or hurt you, would that be likely to cause a psychiatric injury?

The WCAB affirmed the trial judge’s determination that 3208.3(d) does not bar the psyche claim. 

So, the takeaways from this claim?  A remote (telephone, email, etc.) threat of workplace violence that an employee subjectively finds credible, in a profession where workplace violence is not expected will likely be considered a “sudden and extraordinary” employment condition.

Ho, ho, ho, dear readers!

Welcome to December, dear readers!  We’re finally in the last stretch of 2021! 

And what better way to start December than to relate the story of another workers’ compensation fraud conviction? 

Douglas Satre of Santa Rosa slipped up when he allegedly suffered a slip-and-fall injury (see what I did there?) in the bathroom of a telecom company before seeking workers’ comp benefits and receiving TD and treatment through the system.  An investigation revealed he was working for another employer while collecting TD benefits and, apparently, exaggerating his symptoms to his physicians.

Now-convict Satre plead guilty and was ordered to pay $14,000 in restitution, fines, 30 days in jail, probation, and community service.

Your humble blogger sends his salute not only to the investigators and prosecutors who brought this conviction home, but, doubtless, the sharp and diligence claims adjuster who took the initiative to investigate the claim and find evidence of the side-job.

We should all be vigilant.  When symptoms are not improving as expecting, something isn’t right.  A lot of the time that just means nothing more than the body is not recovering as fast as others.  But sometimes it means that the symptoms are exaggerated and something nefarious is afoot.  At those times, it’s important to take action and reveal the fraud.

Onwards and upwards, dear readers!