Happy Friday, dear readers!  It’s the end of another beautiful week here in California and as we wrap things up I just can’t help but share another cool new piece of technology that is so nifty that it’s likely the sign of yet another shrinking of the workers’ comp world.  After all, the more automation and the fewer jobs around that result in injury, the fewer files for us all to administer and litigate, no?

When California is mentioned to non-Californians, they typically think of things like Hollywood, marijuana, “high” tech and high-tech, horrible – just absolutely horrible – roads, and a generally liked character on The Office. 

A huge sector of California’s job market is in agriculture, and always has been.  That remains the case now, and there is no shortage of injuries that can occur in that line of work.  From horrific farm equipment mangling of limbs to cumulative traumas wearing out joints and bones to chemical exposures from pesticides and herbicides, the agriculture business is a cruel mistress, no mistake.

So, anything that can replace back-breaking human labor with automation is a win-win, right?  Employers have fewer injuries to cover and workers have fewer injuries to suffer through. 

Hence, your humble blogger thinks it’s pretty cool that Carbon Robotics has a self-driving robot that kills weeds with lasers. 

The machines are already available for sale and have been deployed to several farms, but the real test will be year-after-year of productivity.  What could this mean?

More food produced at lower costs, less soil depletion from weed grown, and, most importantly, fewer toxic herbicides which means fewer chemical exposures and less manual labor for farm workers.  In other words, fewer workers’ compensation claims.

In other words, every wins!

Here’s to hoping you have a great weekend, dear readers, and your humble blogger hoes this blog post started that weekend off with a positive though.

Hey there dear readers and happy Thursday! 

I know, I know, you usually don’t see a blog post from your humble blogger on Thursday, but today is a must.  Why?

It’s because today is Veterans Day!  So, WCDefenseCA wishes a happy Veterans Day to all of America’s finest and a very deep thank you for your service.  For all the practitioners out there, Veterans Day is a California Holiday, so any deadline or duty that falls on November 11 will be extended to November 12.

Since we’re on the topic of veterans and ways to say thank you for their service, here’s something to consider.  Veterans, especially combat veterans, return home with all sorts of injuries.  After the parades and ribbons comes the day-to-day life which can be challenging or appear almost impossible for those that has suffered in mind and body in the service of their country.

There are several organizations that can help, but they all need help themselves, whether through volunteering or through donations.  One such organization is Operation Surf, which uses water and surfing instruction and exposure to help veterans suffering through their injuries.

If you have it within your means to donate time or money to this organization in honor of Veterans Day, your humble blogger will think the world of you if you do.

Happy Veterans Day, dear readers!

This guest post is brought to you by Rachel Cohen, Esq.  She is a partner with Gale, Sutow & Associates and is in their Cypress Office.  Aside from practicing in the field of workers’ compensation law for more than 20 years Rachel enjoys all things aquatic and is a huge fan of SciFi.  Rachel can often be found pondering such questions as: Did Han shoot first?;  How is “42” the answer to the question “what is the meaning of life?”; and What does “Wibbly Wobbly Timey Wimey” actually entail?  

Happy Monday, Blog Readers! With the recall behind us and New Year rapidly approaching we have seen a host of bills signed into law by Governor Newsome.  Among them is Senate Bill 331 which we should all take a look at as the holiday rush to settlement is among us.

SB 331 AKA The Silence No More Act has been signed and is now the law of the land.  This act expands the host of “Me Too” legislation signed over the past year or so, adding to the list of provisions of settlement documents which would be considered against public policy and unenforceable.

In Short SB 331 amends California Code of Civil Procedure section 1001 and Government Code section 12964.5 to render unenforceable any provisions within settlement agreement that would prevent or restrict the disclosure of factual information regarding specified acts related to a claim filed in a civil action or administrative action related to harassment, discrimination or retaliation of any kind.  This acts as an expansion of the prior rules which were limited to sex related claims.  As of January 1, 2022, SB 331 now extends this prohibition to other acts of workplace harassment or discrimination not just those based on sex. 

You can see how easily this could dovetail with Workers’ Compensation Claims given the types of allegations we frequently see when litigating psyche claims (work place harassment of all flavors), 132(a) wrongful termination claims, etc.

Oftentimes, when settling a claim by way of Compromise and Release, an addendum is attached which will seek agreement of the injured worker to keep confidential the terms of the settlement.  Entering 2022 we will all need to review any confidentiality agreements we have as part of those addenda to ensure that we do not run afoul of SB 331. While non-disclosure agreements and confidentiality clauses in workers’ compensation have little teeth and Judges are often loathe to enforce those clauses even when they are allowed, we will now need to be certain that such provisions do not prevent an injured worker from discussing information about unlawful acts in the workplace.   This does not apply to items such as amount of settlement or things such as trade secrets. 

This may get trickier when an employee separates from employment concurrently with any settlement.  Where there is a separation agreement and settlement injured workers cannot be prohibited from discussing the unlawful acts noted herein but a provision specifically stating “Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful” must be included.

As we approach the New Year I would encourage all to speak with their colleagues, clients and insureds to identify your approach to the inclusion or removal of such confidentiality or non-disclosure agreements.

Haaaaaaappy Friday dear readers!  Here we are again, rounding out another week with Saturday and Sunday beckoning us on.  But I would be doing a grave injustice to my elite and selective readership if I let you start the weekend without somewhat good news.

Do you have any bills or liens from Dr. Amir Friedman or New Age Pharmaceuticals, Inc.?  EAMS shows about 29 liens for Dr. Friedman listed.  Anywho, CBS Los Angeles reports that Dr. Friedman has been sentenced for bribery charges.  The prosecution had alleged that he accepted “$788,140 in bribes and kickbacks in a conspiracy to defraud insurance companies.” The sentence is 14 months in prison.

Another example of compound drug fraud in California workers’ compensation system.

So one more fraudster caught and prosecuted, which is great, but if there’s documentation of almost $800k in fraud paid to Dr. Friedman, how much more money was stolen from insurance companies, and, by extension, the businesses they insured?

Often enough, we on the defense side of the community have to hear the petulant tirades of representatives for lien claimants and injured workers about how the evil insurance companies, what with their bill review, utilization review, and medical provider networks are just trying to deprive injured workers from desperately necessary medical treatment.

How many injured workers was Dr. Friedman helping when he defrauded his victims?  How many honest workers are told there is no money for increased wages when the costs of operating a business are inflated by fraud such as this – fraud that typically goes undetected and unremedied?

Just something to think about over drinks this weekend, dear readers!  And on that cheerful note… see you next week!

Alright folks – real talk.  How often have you heard about medical practices of the past and wondered how civilization could have been so barbaric and calloused to think humans should be subjected to such “treatment”?

There was a time when some doctors advocated for the generalized use of lobotomies to “cure” inconvenient patients.  Dr. Henry Cotton was once an “expert” in his field, practicing unnecessary surgical removal of organs to “cure” insanity. 

Well, here we are now, winding down 2021… which of our new practices will be seen by future generations as insane?  Which will prove to be genius and miraculous?

Consider this article from Stat News about an experimental new procedure that appears to have completely eliminated depression from a test patient by administering minor shocks deep inside the brain.  The test patient, “Sarah”, had serious depression since she was a child.  Researchers from UCSF administered small shocks using a deep brain stimulator devise, specifically designed for the patient, to react to identified biological markers before the waves of depression hit.

Sarah reported marked improvement and the researchers anticipated that the surgically implanted device will have a battery life of about 10 years.  There are plans to expand the study to additional patients as well, but Sarah is reporting a significantly higher quality of life.

If these benefits hold, what are the implications for workers’ compensation?  Since the last round of reforms, we have seen significantly fewer psyche claims, at least in terms of compensable consequences – PD seems to have been the big driver of these claims and now that’s gone for the most part.  But setting aside the exaggerated claims used to leverage more settlement, what about the legitimate psyche claims out there? 

A significant psychiatric injury has the ability to derail a person’s life and, by extension, bring a significant increase in exposure.  Lifetime treatment, in-home care, and, of course, permanent disability can come with a hefty claims expense.  And, aside from the workers’ compensation costs and the effect on the injured worker’s life, the employer is typically out an employee that it would probably like to keep.

This is just one of those new fangled inventions that might ultimately help curb workers’ compensation costs by reducing the impact of psychiatric conditions that are predominantly caused by actual events of employment. 

Then again, dear readers, maybe in a generation or two the consensus would be “why would you think electrocuting the brain from the inside out would be a good idea?”

Straight on to Friday!

Welcome back, dear readers, to yet another lovely week in the world of workers’ compensation!  Now, do you know what would happen if you sat a dozen workers’ compensation participants – adjusters, risk managers, attorneys, or judges – down at a table and asked them to state the single most frustrating thing about California’s workers’ compensation system?  You’d get at least two dozen answers!

Yes, our system offers much to complain about.  Listing all of them would test the attention span of your humble blogger’s beloved readers and likely give rise to a few workers’ compensation claims just from the effort, so I offer one in particular: the “evil twin” claim. 

Applicant files a specific injury claim and takes his chances through the panel process.  If things don’t work out so well between the QME and the trial, applicant need only say “oh, this isn’t my ACTUAL claim!  This claim is just the evil twin of my real claim, which hasn’t been filed yet.”  And so you get a cumulative trauma claim and the race to a new panel.  The laws of nature and man give us all but one bite at the workers’ compensation apple, yet we on the defense side are often tasked with surviving two bites if not more.  How fair it is to feel that this system aims to eat us alive!

So now I bring to your attention the noble case of Noble v. Ascena Retail Group, Inc., a panel decision handed down not too long ago.  Applicant alleged a CT claim through 2017 and an orthopedic panel was obtained to resolve the dispute.  The ortho QME found that there was no CT at all, but rather the complaints stem from a specific injury.  Applicant then agreed to dismiss her claim with prejudice at trial, only to file a NEW application that same day alleging a specific injury!

Applicant then obtained a panel in pain medicine to address the specific injury in 2017, as originally found by the orthopedic QME.  Defendants naturally objected and the parties proceeded to trial on various issues, among them whether applicant was entitled to a new panel QME.

Applicant filed a petition for reconsideration of the WCJ’s finding that applicant was not entitled to a new panel and was stuck with the orthopedic QME.  The WCAB returned the matter to the trial level to develop the record further, but did offer some guidance.  While initially citing its en banc decision in the Navarro case, which held that an applicant was not required to return to the same panel QME for a subsequently filed injury, the Noble panel noted “[d]ismissing the cumulative trauma claim while simultaneously filing a new claim form for the specific injury and requesting a new QME panel does not have an aboveboard appearance to it…”

From the panel opinion, it appears that applicant might be complying with the letter of the law as outlined in Navarro but running contrary to the guidance provided in Navarro that “it is constitutionally required that workers’ compensation proceedings be expeditious”, noting “[i]t is unclear why applicant did not simply amend her cumulative trauma injury claim to be a specific injury claim to conform to proof upon receipt of [the orthopedic QME’s] opinions.”

So, dear readers, what’s to be done?  Navarro is an en banc decision and thus is binding authority. 

Perhaps the next time California relapses into “workers’ compensation reform frenzy” a proper amendment to the Labor Code would include a restriction on new panels to the dates of injury, rather than the dates that claim forms are filed, as per Navarro, would all be reviewed by the same PQME?

Perhaps there are more regulations necessary to define this particular tactic as “bad faith” giving rise to costs and sanctions?

Well dear readers, you need only elect your humble blogger and several dozen of his clones to the legislature and the Governor’s mansion, and you may consider the problem fixed.  Until then… well, this blog will be here to commiserate with you through and through.

Well, dear readers, we made it to another Friday.  Now, before you head off for your weekend of recovering from another five days of California Workers’ Compensation, let me ask you a simple question: what does the number 62 mean to you?

Is it an age? A road?  Perhaps it is the number of times you swore to yourself you’d find another industry to work in, but found yourself stuck in workers’ comp after all?

Well, at the moment, it might be the number assigned to a Senate Bill requiring garment manufacturing employees to be paid, at a minimum, by the hour instead of by the item of clothing produced.

Senate Bill 62, signed into law on September 27 of this year, requires garment manufacturing employers to keep records of all employees, hours worked, and terms agreed-to with all employees.  This also imposes upon the employer liability for minimum wage and attorney fees to be paid to said employees.

So, why does your humble blogger bring this to your attention?

Well, if you have a pending workers’ compensation claim from a garment worker who had average weekly wage calculated by the number of garments produced in the prior year, that figure might be lower than an average weekly wage calculation based on hours worked.  TD and possibly even PD rates might have to be adjusted accordingly.

Further, with this additional exposure, the experience modification and insurance premium rates might warrant adjusting as well.  

Certainly, this will be reported as a great victory for workers’ rights.  In fact the results, though obvious and anticipated, might not be of benefit to California’s employees.  Back in the day when garments were shipped on horseback, perhaps local manufacturing was necessary. 

Now that shipping costs aren’t as prohibitive, perhaps California’s garment industry will follow the trend of every other manufacturer, moving out of state (or out of the country) for less expensive production costs.

Time will tell, dear readers, as it always does.  But, while we are awaiting the results of more of California’s interference in the business world, let’s turn an eye towards updating those cases that will have benefits rates affected by the new law.

Have a good weekend, dear readers!