Well, dear readers, it’s Wednesday again!  As we see the spooky decorations going up and the wild-eyed excitement of children building up, your humble blogger has some advice for you.  Now, this advice is free, so bear that in mind before you put it into practice.

On Halloween, children will often ask for scary stories.  There is no surer way to give those kids an overdose of disappointment than to describe the horror and dread that is California’s workers’ compensation system. 

As a certified specialist in workers’ compensation, as a father, as an uncle, and as a person who is obsessed with all things workers comp (much to the annoyance of friends, family members, and random strangers on public transit) I can promise you that no matter how horrible or unfair or scary workers’ compensation is… the kids aren’t interested. 

So, rather than telling them about the horrors of “developing the record” or “this is just a benefits delivery system,” tell them instead about ghosts, werewolves, or even the pied piper.

But, since you have the misfortune of visiting the blog, I will share some workers’ comp stories with you, dear readers!

The case I bring to your attention today is that of Gonzalez v. Costco Wholesale.  Applicant claimed an orthopedic CT spanning about nine years while working as a warehouse stocker to the right wrist and low back.  He had several other orthopedic injuries as well, although those appear to be specific dates of injury rather than CTs.  In any case, he was evaluated by several QMEs, none of which found a CT to his right wrist and low back. 

His PTP however, DID find a CT to the low back and right wrist, and pointed out that other QMEs, including the QME that specifically saw applicant on his CT claim, did not appear to review the PTP’s reporting.  The WCJ at trial found that there was sufficient basis for finding a CT, and the WCAB upheld the WCJ’s opinion.

The WCAB also came down hard on the defense for accusing the PTP of bias without evidence, warning of possible sanctions for such claims.  Your humble blogger can’t help but wonder if evidence that the PTP is a member of Sam’s Club but not Costco be sufficient proof of bias against the defendant. 

The QME’s comments that “the patient is asked about the right wrist and hand and he has no complaints” was insufficient to find that there was no CT, in light of the PTPs documented complaints to those body parts over the past several months.

So, what do we take away from this, dear readers?  A benign examination with a QME is likely insufficient to prevail on AOE/COE in light of medical reporting to the contrary from the PTP.  Now, your humble blogger has no specific knowledge of the particular PTP in this case, but it is not hard to conceive of some PTPs, well versed in the workers’ compensation system, guiding the injured worker into reporting the symptoms that would be most beneficial to a case. 

Certainly, the majority of physicians would not do this, and the majority of injured workers would not do this either.  To some extent, there is sample bias amongst defense attorneys because most injuries don’t require an attorney at all – we tend to get the ones that are contentious.  But if that’s the theory – that the PTP is biased and is guiding applicant into reporting, some actual evidence is necessary to prove this point.

Often, TPAs and insurers can aggregate data to see who the problem doctors are – whether from overprescribing to cookie cutter complaints.  Further, discovery such as depositions, sub rosa, and rebuttal reports can also be used.  The QME should review all treatment reports and comment on them.  The QME should be deposed to ask how he or she explains the difference between the examination for med-legal purposes and the PTP’s reporting. 

Of course, the burden of proof on causation for an orthopedic injury, absent a presumption case, is on applicant.  But if applicant is going to trial with PTP reports, that burden can be carried.

Straight on till Friday, dear readers!

Happy Monday my beloved readers!

Many of us grew up with today being Columbus Day, and being a holiday to boot.  However, over the years various levels of government have purposed the day as Indigenous Peoples’ Day. 

The California Courts still observe Columbus day as a holiday on Monday, October 11, but California does not. 

So dear readers, as we all know, when the last day to perform an act falls on a holiday, the deadline is extended by one day.  If that last day is today, does the deadline get extended?

Well, I would direct my beloved readers to the panel decision of Bernard v. Chris Johns, DDS, a 2009 decision that a petition for reconsideration was untimely, noting “although Monday, October 12, 2009, was Columbus Day, the WCAB was open for filing” citing Gov. Code 19853, which listed holidays for state employees but did not include Columbus Day. 

Prior panel decision, including Turner v. City of Eureka (2008) and South v. City of Grover Beach (2007) acknowledged Columbus Day as a holiday and extended the deadline to file for the day after Columbus Day.  Of course, Gov. Code section 19853 went into effect in 2009 which might be the reason for the shift.  Despite this, Gov. Code section 6700 still lists Columbus Day as a holiday.

So, despite the Supreme Court setting out rules acknowledging Columbus Day as a holiday, this does not appear to apply to the WCAB and we should all be aware of the same.  Further, practitioners would be well advised to confirm that what appears to be a generally accepted holiday is a holiday for the WCAB in particular to avoid blowing a deadline.  While California stubbornly and irrationally refuses to recognize my birthday as Humble Blogger Day, your humble blogger has to continue to labor even when, by all rights, everyone should be celebrating.

See you on Wednesday dear readers!

Happy Wednesday dear readers!

Your humble blogger likes to drop a dad joke here and there, but overall, there can be no dispute that when it comes to these blog posts, I am both serious… and willful.  So, who better to bring you a blog post about Labor Code 4553 and the allegations of Serious and Willful Misconduct?

The case is that of Perez (deceased) v. Dynamic Auto Images, Inc., wherein the deceased’s dependents claimed the employer engaged in Serious and Willful Misconduct by the employer following the employee’s tragic fall to his death.  The case-in-chief was resolved via C&R.

According to the OSHA report, the employee fell twelve feet from a carport on which he was working, landing on his head.  At trial, the defense witness, the business manager, testified that the employee had access to resources to purchase or rent any safety equipment necessary to do a particular job, and that he also worked relatively independently, having general duties without specific instruction on how any particular task needed to be done.   On the job where the fall occurred, a particular location was being closed by the employer and he was engaged in dismantling the carport and removing fixtures. 

Although the employee rented, on his own, a seven-foot truck to get the job done, the employer witness did not know why the employee did not also rent safety equipment.  OSHA had initially fined the employer $58,000 based on safety violations, but, following an appeal, the fine was reduced to $21,000.  The OSHA resolution included a common clause regarding denial of any negligence, fault, or wrongdoing on the part of the employer, and there was no finding by a trier-of-fact as to any of the same.

 The WCJ, at trial, found that the employee’s dependents failed to carry their burden of proof in establishing Serious and Willful misconduct.  First, the dependents failed to identify “which executive, managing partner or general superintendent (other than the decendent himself) engaged in conduct that is fairly described” to constitute a deliberate act for the purpose of injuring another, an intentional act with knowledge that serious injury is a probable result, or an intentional act with a positive and reckless disregard for the safety of another.  Since the employee was an “executive, managing partner or general superintendent” himself, there is no authority for a duty of the other executives, managing partners, or general superintendents in the company to make sure the employee, who was relatively autonomous in his job duties, did the job safely.

Likewise, proceeding on a theory that the employer knowingly violated an OSHA safety order, the claim would likewise fail, since there was no evidence that anyone else in the management team knew how the employee would carry out the task of removing fixtures from the car port, let alone that the employee would choose to do so in an unsafe manner, given the resources available and the autonomy in which he worked.

The WCAB denied reconsideration and incorporated and adopted the WCJ’s report on reconsideration.

If you have an S&W case, I strongly recommend reading the WCJ’s report on reconsideration.  The WCJ gave a thorough and nuanced discussion of S&W law in general, and how it applied to a variety of cases.

Basically, the facts are strongly suggestive of the fact that it was an executive, managing partner, or general superintendent that engaged in serious and willful misconduct that resulted in his own tragic death.  So that raises another question regarding the case-in-chief – could the insurer have petitioned the WCAB for a reduction in benefits due to the possible Serious and Willful Misconduct of the employee? 

Well, Labor Code section 4551 allows for a 50% reduction in workers’ compensation benefits where the injury is the result of serious and willful misconduct of the injured employee, of course, but there are exceptions.  One such exception, found in LC 4551(a) is where the S&W results in the employee’s death, which, it tragically did in this case.

Straight on to Friday, dear readers!

Happy Monday, dear readers!

After spending almost my entire life in California, do you know who my favorite character in The Godfather is?  None other than Vito Corleone.  And why?  Aside from the obvious, whenever I hear his name, it makes me think of a veto from the Governor’s desk.  In California, a veto is usually a wonderful thing.

Such is the case with the Governor’s veto of SB 788.  Senate Bill 788 on its face claimed that it would “prohibit consideration of race, religious creed, color, national origin, gender, marital status, sex, sexual identity, or sexual orientation to determine the approximate percentage to the permanent disability caused by other factors.”   As those of us in the trenches know all too well, this would have been used as another litigation tactic to make carrying the defendant’s burden of proof as to apportionment more expensive.

If a doctor apportions permanent disability to any factor that the applicant attorney could somehow frame in a light as considering the factors prohibited by SB788, there’s another triable issue which means more money.

For example, if a particular applicant is an immigrant from a third-world country and suffered malnutrition as a child in his country of origin, isn’t apportioning to that malnutrition a consideration of “national origin”?  Or how about apportioning some permanent disability to a pregnancy?  Governor Brown vetoed AB 570 which would have prohibited just that, but can’t apportionment to pregnancy be framed in the context of considering “gender”? 

Or what about psyche claims?  If the psychiatric med-legal apportionments some percentage of an applicant’s depression to a divorce, isn’t that considering “marital status”?

Apportionment is already hard enough to secure in California’s workers’ comp  system without the likes of SB 788 picking the back pocket of employers while the rest of the system robs the rest.

Happy Monday, dear readers!

Your humble blogger hopes your weekend was restful and relaxing, although understandably, the community is a buzz with nervousness as we all watch the date approach October 1, 2021.  What happens on October 1, you might ask?  Well, I’ll let my good friend Bill explain:

Well, not exactly. 

But all kidding aside, come October 1, 2021, all trials, lien trials, and expedited hearings will resume “in person” process.  Recent discussions online seem to show almost unanimous agreement among attorneys and lien representatives expressing disapproval of the impending return to court.  For your humble blogger’s part, I share that concern. 

The San Francisco WCAB for example, does not have windows in its court rooms, and the hallways have windows that don’t open.  The same is true of the Oakland WCAB.

As we return to in-person trials, parties and their attorneys are going to face significant challenges.  At last Friday’s public hearing, one lien representative voiced objections to returning to in-person trials for the purposes of lien claimants being able to prove their respective cases: while he has had very limited success getting applicants to appear for a lien trial to testify for AOE-COE, he has had no such problems when applicants have appeared via LifeSize to testify.

Judges are also about to face significant challenges: a LifeSize video stream offers a clear view of a witness’s face and a clear voice from the witness with which to judge credibility.  A witness wearing a mask presents problems both for identification and judging credibility. 

Finally, there is just the human element to consider: the pandemic is real and the virus is dangerous.  That threat extends to everyone, with varying degrees but with absolutely no guarantee of safety. 

Will some injured workers decide that risking exposure to COVID by taking public transportation to go to a crowded court room is not worth pursuing workers’ compensation benefits? 

Will some employees of the WCAB or the various attorney offices quit when faced with exposing their family members to the various new strains?

Your humble blogger, being the down-in-the-trenches defense attorney that he is, has appeared for several expedited hearings and trials since the start of pandemic.  Yes, it’s true, dear readers – between blog posts I sometimes find time for lawyering here and there!  Though LifeSize certainly doesn’t offer the same feel as “the old days” when we would all mill around and make deals at the Board, the remote system we have had since March of last year provides all the essential functions we need while ensuring our safety.

Let’s hope for the best as we sail into October, and that everyone remains healthy and safe.  But none-the-less, your humble blogger hopes that good reason will guide the State of California towards the conclusion that continuing as we have gone since March of last year is the best option.

See you next Wednesday, dear readers!

 Greetings readers and happy Wednesday!

Are we all planning on attending the ZOOM public hearing regarding proposed changes to the WCAB regulations?  Rumor has it that the news regarding returning to the Boards for in-person trials is going to be discussed as well.

Buuuuut, that’s not what your humble blogger is blogging about just at this moment.  There is actually some other news that merits our attention as well.  A little while ago the Department of Industrial Relations announced that the emergency regulations regarding virtual QME evaluations set to expire on October 12, 2021, are to be extended for an additional 90 days. 

From your humble blogger’s own, in-the-trenches on-the-ground anecdotal experience, most QMEs on my files are seeing applicants in person.  There are a few evaluators that are only doing virtual exams, but that often means seeking a replacement if the injury is orthopedic in nature. 

The situation is a tricky one of course, while we are dealing with the delta variant and several other Greek letters to follow, California reportedly has the lowest transmission rate in the United States.

From your humble blogger’s perspective, it certainly seems confusing that the QME evaluations would continue to incline towards virtual while the trials would edge towards going in person.  

Perhaps this is a good time to try my idea of having 100% of all work done by robots while we all live like kings in our automated palaces.  Sadly, every time I bring this suggestion up I’m peppered with all sorts of pessimistic questions like “how would we pay for that?” “you know that none of that is possible, right?” and “Sir, are you aware that the restraining order is still in effect?”  Some people just won’t listen to good ideas…

See you at the public hearing on Friday, dear readers!

Happy Monday, dear readers!

Your humble blogger loves his fine cuisine, of course, but his favorite place to dine is Henry’s Hunan restaurant in San Francisco.  The only thing better than eat at Henry’s is having a delicious box of Henry’s left-overs waiting in one’s fridge.  On a particularly difficult day, I recall myself drawing motivation at the thought that when all was said and done, I could come home and have my Chinese food leftovers.

Imagine the shock, the pain, and the frustration when I got home and one of the people with access to my fridge decided to eat the food themselves!  Oh, how that feeling still burns deep in my soul all these years later.

I imagine that the pain is akin to what the defendants in the recent panel decision of Jackson v. UC Berkeley felt.  Therein, a QME found impairment to the lumbar spine as 23% WPI for the DRE method and 21% for the Range of Motion method, and in both cases assigned a 3% pain add-on.  As to apportionment, the QME opined that 30% of the permanent disability was caused by non-industrial and other factors, to wit, degenerative conditions in the spine that pre-dated the industrial specific injury.

The parties proceeded to trial at which point the WCJ found that applicant had sustained 33% PD after apportionment.  Applicant then appealed, arguing that the QME’s opinions on apportionment were not substantial medical evidence.

The WCAB held that in order for a defendant to meet its burden of proving apportionment, the physician must “explain the nature of the degenerative disease [as in this case], how and why it was causing permanent disability at the time of the evaluation, and how and why it was responsible for the percentage of the disability assigned by the physician.”  Although the QME in this particular case explained what the non-industrial condition was, he did not explain, adequately enough, why 30% of applicant’s permanent disability was caused by this non-industrial condition.

Why were the degenerative changes responsible for 30% of applicant’s permanent disability?  According to the panel opinion, the explanation of “[applicant] had pre-existing pathology which contributed to her impairment, thus, the basis for apportionment and the basis for 30% apportionment to nonindustrial causes” was insufficient.  Perhaps, had the doctor explained that “absent this non-industrial degenerative condition, I would expect the injury to have resulted in X whole person impairment instead” that might suffice, but it appears the record did not include such reasoning.

So, imagine the emotional state of the defense in this case – securing an apportionment finding at trial just to have it taken away on appeal.

Such is life, dear readers.  Now, if you will excuse your humble blogger, he hears Henry’s calling him once again…

Happy Monday, dear readers!

You know, we are more than a month away from Halloween, but that doesn’t stop store displays from going all out on spooky decorations, candy, and costumes.  In that same spirit, I offer a rather grim panel opinion, having to do, of course, with the spookiest of aspect to our beloved swamp of California workers’ compensation – the Death Without Dependents unit.

The basic gist of this unit is that when there is an industrial death, and the worker dies without any dependents, the state comes in to collect the death benefit.  In most cases, the defendant is searching high and low for at least one partial dependent to avoid having to pay the max benefit, although it appears that the logic is inverted for COVID19 related death cases, as SB1159 and Governor Newsom’s executive order appear to bar DWD recovery in those cases.

Anywho, the panel decision under the humble blogger’s microscope today is that of Tara O’Sullivan v. City of Sacramento.  In this particular instance, DWD and an alleged partial dependant were at odds about whether the later qualified as a partial dependent at all.

The deceased was a City of Sacramento Police Officer who was shot and killed in the line of duty in 2019.  As the WCJ recounted, “[j]ust prior to her death, decedent and [applicant-dependent] agreed to move in together with [the latter’s] fiancé.  This would allow [applicant-dependent] to save money for her planned wedding.”  The decedent agreed to pay half (not one-third) of utilities.

The WCJ acknowledged that a mere “room mate” scenario would not give rise to a dependency relationship.  However, in this case, decedent was paying half of the utilities while only representing one-third of the occupants of the home.  The WCJ reasoned that “[decedent] agreed, in effect, to subsidize applicant’s rent and utilities.”

The WCAB denied the DWD’s petition for reconsideration. 

So, some takeaways from this decision, dear readers?  Dependency does not require any large sums of money – the standard for a partial dependent can be some level of support, even so little as subsidizing rent and utilities.  But, contrast that with the WCAB’s opinion in the case of Guadalupe Ayon (Deceased), wherein the WCAB held that a deceased worker must have contributed more to the house hold than his or her own expenses.  There, the defendant argued that the surviving family members were benefiting from the economies of scale which they could no longer rely upon. 

Straight on to Wednesday, dear readers!

Good morning dear readers! It’s not every day your humble blogger invades your in-box on a Saturday morning, but this is not just an “every day” moment.

20 years ago, as your humble blogger was waking up and getting ready to leave for school, I watched in confusion as footage of an airplane striking the World Trade Center played on TV. I remember thinking it so odd that my folks would choose to watch a movie in the morning when they usually have the news on.

Of course, as time went on and details of the horror came trickling in, we all knew that the world had changed forever. I have forgotten much of what happened in my life over the last 20 years – some things that occurred just last month are already fading into the void. But I remember those days and weeks that followed this horrific attack as vividly now as I did 20 years ago.

We all said, then, that we would never forget, and two decades later, we still remember.

That being said, on a slightly more positive note, there is some effort to have this day of remembrance also become World First Aid Day, raising awareness of the need for everyone to become familiar with first aid. While my skills in that department are severely lacking, it seems to your humble blogger a worthy pursuit and a noble effort, as so many times we find prompt and competent first aid can mean the difference between death or serious permanent injury on the one hand, and substantial recovery on the other.

Your humble blogger wishes you a peaceful day of remembrance and reflection, and looks forward to offering you crackpot ideas and unforgivable dad jokes come Monday.

Happy Friday dear readers!

Another week is winding down – a special hello and thank you to all the wonderful people that made the WCRC conference in Dana Point such a memorable one, particularly as it had been so long since your humble blogger risked venturing out to gather with his fellow workers’ compensation creatures.  Hopefully, dear readers, our paths will cross at the conference next years.

In any case, if you can’t hang out with the humble blogger right this moment, perhaps I can interest you in a humble blogpost instead?

Well, let’s talk about the most-cursed beer in the world right now: Corona!  Your humble blogger theorized in this blog post that industrial COVID deaths resulting in transmission to and death of the employee’s family members could possibly follow the path of asbestos and pursue remedies against the employer in civil court rather than through the workers’ compensation system.  Well, the Kuciemba case seemed to shut that theory down, granting defendant’s petition for dismissal.

Now a different case is working it way through the court system: Matilde Ek v. See’s Candies Inc.  Plaintiff Ms. Ek was an employee of See’s Candies Inc. where she allegedly contracted Covid19.  She brought Covid home to her family, and her husbanded sadly passed as a result of the infection.

See’s Candies (my favorite is the dark cherry in chocolate, and if it’s not your favorite then, sadly, dear reader, you are wrong) sought a demurrer, arguing that any of Ms. Ek’s claims are derivivate of her workers’ compensation claims, and must be confined to the realm of workers’ compensation.  Ms. Ek’s attorneys argued, however, that despite her being a vector for the disease, she was claiming damages distinct from her own Covid suffering, but based on the death of her husband. 

The case is now up on appeal as to whether a demurrer is appropriate, as the trial level court denied defendant’s demurrer. 

In other words, dear readers, if you’ve been thinking to yourself that you really wish there were 2am TV commercials looking for clients who may have gotten COVID from a family member who got it from work… you are in luck!  Have a great weekend!