Well, dear readers… has this been a week or what?!?  At least we’re wrapping up and ready for Saturday and Sunday.

Quick question for you, dear readers… did you know that Saturday and Sunday are the two strongest days?  It’s true… the others are all weak-days. 

For the three of you who are still reading this blog post after that joke, the California Department of Insurance announced charges filed against an applicant after sub rosafootage appeared to conflict with her statements made throughout the case.

The injured worker, who remains unnamed on this blog as she is only accused and not convicted, alleged injuries to her right shoulder, neck, and back.  Her complaints appeared to reflect a serious impact on her activities of daily living, rendering her unable to “perform everyday activities such as sitting, standing, walking, reaching, and lifting.” 

Sub Rosa footage showed applicant engaged in many of the activities she said she could not perform.  Of interest, the DOI press release described the footage as “cleaning in and around her home, doing yardwork, ascending and descending stairs…” If that’s the case, then the intrepid investigators must have found an interesting observation post to see such activities inside the worker’s home.

Your humble blogger wishes the Fresno County District Attorney’s Office good hunting in prosecuting this claim and I hope the truth comes out and justice is served.  In the meantime, let’s all remember to ask ourselves, once in a while, do the facts presented, at face value, make sense?  If not, perhaps the facts aren’t true and some sub rosa is warranted. 

Have a great weekend, dear readers!

Welcome back dear readers!  Your humble blogger wrote on Monday that the DIR was extending emergency regulations regarding tele-medicine evaluations and reporting for med-legal exams into October.  Well, what better follow-up blog post than one interpreting and applying those regulations?

A few months ago, the WCAB issued a panel decision in the matter of Pettway v. Trillium Staffing Solutions, wherein defendant sought to compel an in-person examination rather than one over video and phone.  But first, a bit of background…

Emergency regulations were promulgated to allowed for safer examinations at a time of COVID19 and a rapidly evolving situation (and possibly virus) constantly changing the rules for safety.  Your humble blogger is old enough to remember when were told COVID19 can’t spread from person to person, then masks didn’t do anything, then masks helped but not all masks, then it would only be 15 days to stop the spread… and on it went as new information became available.

Well, among those relevant regulations were the various subsections of Reg. 46.2, which provided for having a QME or AME “interview the injured worker either by telephone or by any form of video conferencing” with in-person exams to follow once the stay-at-home orders are lifted. 

In some situations this works great – a psychiatric evaluation really doesn’t need to measure range of motion, so video exams should be fine.  In other cases, such as those that call for the measurement of grip loss, or to observe a potential malingerer as to his or her gait, video isn’t the best.

Well, in Pettway, applicant sustained orthopedic injuries and failed to attend an in-person exam with the PQME.  Defendant sought to compel his attendance at the next exam, but the Workers’ Compensation Judge declined to compel physical attendance until the lifting of the Shelter in Place Order.

Defendant appealed with some interesting arguments.  Initially, it argued that it was entitled to medical-legal evaluations pursuant to sections 4050 and 4053 of the Labor Code, and, secondly, because medical facilities are “essential businesses as contemplated by the Shelter-in-Place Order.

Well, your humble blogger opined previously that Governor Newsom’s orders were in conflict with the constitution when it came to presumptions of compensability, particularly because the California Legislature has plenary power over all things workers’ comp and the executive branch has no business meddling with the workings of our beloved swamp.

Presumably, to the extent that the WCAB is promulgating regulations in conflict with the Labor Code based on presumed authority granted by the executive branch’s executive orders, the same rule would apply: the Labor Code as to in-person evaluations should control.

But, as happens often enough in times of panic and mass hysteria, these arguments go by the wayside.  Your humble blogger is also old enough to remember when post 9/11 security and investigatory efforts rebuffed challenges based on due process, civil liberties, and privacy rights with the retort “the Constitution is not a suicide pact.”  So, too, in an effort to respond to the dangers of COVID19, no one wants to risk seeming to ignore the danger posed by the pandemic.

Your humble bloggers ramblings and soap-box preaching aside, what did the Pettway panel do with this case?  They kicked it down to the trial level again, with instructions to explore a way to make everybody happy: “Although an in-person evaluation with the QME may not be possible at this time due to state and local public health orders, we will return this matter to the trial level to permit the parties to address whether the medical-legal evaluation with the panel QME … may proceed in some fashion in accordance with the DWC’s emergency regulations.”

So, let’s look at the situation, dear readers: the QME seems willing to do an in-person examination and is not requiring a phone or video med-legal exam.  Defendant wants this and is willing to pay mileage and transportation costs (presumably).  The only hold-up is applicant.  Is there a basis in the emergency regulations for applicant to refuse to submit to an examination?

Well, for starters, section 46.2(a) provides “[d]uring the period that this emergency regulation is in effect a QME, AME, or other medical-legal evaluation may be performed as follows:” (emphasis added).  That sounds like permissive language, not mandatory.  Further, all the subsections to 46.2(a) appear to give the authority to set remote med-legal exams to the QME and AME, and NOT the injured worker.

Accordingly, unless the QME is refusing to do an in-person exam, compelling attendance of an in-person exam appears to be in accordance with the emergency regulations.

The practical application for this for defendants is particularly harsh.  If the injured worker is receiving temporary disability benefits, often enough, the QME might be the only way to cut off TD benefits.  So long as the applicant is steered to a physician who seems him or herself as a “patient advocate” rather than an objective evaluator of medical conditions, the TTD status can be expected for the long haul.

Please recall, dear readers, that at the time these regulations first became effective, May 14, 2020, there was no vaccine for COVID19.  Then first vaccine was authorized by the Trump Administration with an Emergency Use Authorization in December of 2020.  Although recently extended, these current emergency regulations do not account for the fact that perhaps the PQME and the injured worker are both vaccinated, which the CDC advises is now safe for in-person visits.

As we get closer to the emergency regulations being one year old, especially in light of all the changes in scientific conclusions and available remedies that were not available in May of 2020, what relevance the regulations will have and how the WCAB will apply them. 

Carry on, dear readers!

Happy Monday, dear readers!  We’re back for another week of thrills, chills, and spills at Camp Workers’ Compensation and I’m tickled pink to have you all trapped here with me!  Misery does love company, after all.

All groaning and griping aside, one of the very, very thin silver linings of the lockdowns we’ve still slugging through has been the compulsory trial of remote litigation and work for the workers’ comp bar.  For the last year, depositions have been done almost exclusively via video-conference, hearings over the phone, and trials, when they happen at all, through LifeSize video.

Even some of the medical-legal evaluations have been conducted via tele-medicine, although that remains an issue as the parties don’t always agree about whether a video evaluation would be acceptable: sometimes for reasons of safety, sometimes for reasons of accuracy, and, unfortunately, sometimes out of tactical concerns.

Well, the Department of Industrial Relations recently announced that emergency regulations pertaining to med-legal evaluations and reporting are to stay in place through mid-October.  

As “plugged in” as your humble blogger imagines himself to be, though, there is no indication yet whether the WCAB will continue to hold remote hearings and, if so, for how long.  To the extent that WCDefenseCA has any influence on such decisions, or even influence on the people who make such decisions, I would urge we continue on with remote litigation as we have been.

Employers and insurers are reaping significant benefits and would continue to do so: bills for travel time are no longer an issue since most attorneys waive the travel time from their kitchen table to their guest-room/home-office/box of crackers holding up a laptop on the passenger seat of a car. 

The hearings themselves are taking significantly less time, as lack of preparation is not being tolerated like it was when we appeared in person.  Further, your favorite defense attorneys can now take a hearing in Salinas and Santa Rosa in the same morning, so issues are resolved much faster.  Over-all, in your humble blogger’s estimation, it is a big win – the defense attorneys can now accomplish the same if not more, faster, while generating a smaller bill.

What’s your experience, dear readers?  Are we happy to litigate from our homes?  Or are we pining to breathe the air of the WCAB once more?

Happy Wednesday, dear readers! 

It should come as no surprise to frequent readers of this most humble of blogs, that your humble blogger is a keen observer of the fact that life is not fair.  However, besides your humble blogger’s own perceptions of the human experience, I frequently hear the laments that the rulings of the WCAB are particularly unfair to defendants, and that different standards are applied to arguments, depending on which party is making the argument. 

So, let us consider the case of Savoie v. State of California.  In that case, the medical-legal examiner opined that the strict rating under the AMA Guide did not accurately reflect the whole person impairment, and instead offered an opinion under Almaraz-Guzman.  Nothing new here, right?  Well, the medical-legal evaluator opined that a lower impairment more accurately reflects the WPI. 

Now, oddly enough, the panel opinion does not reflect whether this medical-legal was an AME or a QME.  Of course, an AME’s opinions would be given considerably more weight and deference, but it is not clear the status of this particular evaluator from the panel opinion.

After trial, the WCJ adopted the opinions of the medical-legal evaluator, finding a rating based on the lower, 18% WPI rather than the strict AMA rating.  However, on appeal the WCAB reversed!

So… why did the WCAB decide the Almaraz/Guzman opinion was inadequate?

First, the panel summarized the issue as follows: “Here defendant is attempting to utilize an alternative rating to reduce the applicant’s permanent impairment.  Assuming that it is even possible to utilize Guzman to reduce a scheduled impairment, any such analysis must come under even stricter scrutiny.”   (Emphasis in original).

The panel went on to conclude that the medical-legal evaluator’s rebuttal of the AMA Guides was not sufficiently supported, and that it “need not determine whether it is ever permissible to reduce a scheduled impairment by utilizing a Guzman analysis.”

Well… why wouldn’t it be? 

Guzman offers no restrictions on the purpose of the rebuttal of the strict AMA Guides.  The sole guidance provided is that the AMA Guides can be rebutted, and, when rebutted, the medical-legal evaluator whether AME or PQME, can use another table or chart to more accurately rate the impairment. 

In Gomez v. Castle & Cooke, Inc., a 2012 panel decision, the majority of the split panel upheld the WCJ’s reliance on a QME’s “reverse” Guzman analysis to reduce the WPI that would have resulted from the strict AMA Guides application.  Similarly, in Riley v. City of Pasadena, a 2011 panel decision, the AME in that case was upheld in an Almaraz/Guzman opinion reducing WPI from strict AMA guides application.

Further, Guzman offers no direction to treat a result that benefits the defense with greater scrutiny than that which benefits applicants.  As any cook will tell you, that which is good for the goose is good for the gander.

Your humble is all for limiting the application of Guzman and its progeny.  In fact, I will be the first to volunteer that we should eliminate Guzman altogether and both applicants and defendants can be bound by strict AMA Guides.  But in the meantime, it would make sense to the undersigned that if the AMA Guides can be rebutted, then whether it is to the benefit or the detriment of injured workers is not relevant in the face of due process considerations.

Happy Wednesday, dear readers!

Your humble blogger would like to put forth a modest proposal.  What if workers’ compensation was used only for work-related injuries?  Imagine a system where an employee could claim that an injury was caused by industrial activities, and after establishing that this was more likely than not to be so, could receive benefits?

This way, California’s employers would be responsible for the injuries caused by their business activities, while at the same time would not be burdened with being general insurers against all the ills and harm that one can suffer in life.

Now consider Senate Bill 213, which is snaking its way through the legislature and has as much chance of becoming law in California as anything else.  “This bill would create rebuttable presumptions that [pretty much all injuries] that develop or manifest in a hospital employee would who provides direct patient care in an acute care hospital arose out of and in the course of the employment.”

The proposed legislation would create a presumption of industrial causation for a whole host of injuries and conditions, including “infectious diseases, cancer, musculoskeletal injuries, post-traumatic stress disorder, and respiratory disease.”  This presumption would apply even after the employee is no longer employed – depending on the condition for up to three months for ever year worked, up to 10 years.

For musculoskeletal injuries, as for respiratory diseases, an “injury that develops or manifests in a hospital employee who provides direct patient care in an acute care hospital shall not be attributed to a disease existing prior to that development or manifestation.”

All of us, whether we are chronically unemployed or working 80 hour weeks all year every year, are exposed to all sorts of illnesses or maladies.  SB213 does one thing only – it makes hospitals, in their capacity as employers, liable for most of these maladies.  Yes, hospital work and patient care is hard work and sometimes results in injuries, and when it does California already provides an insanely low bar to get compensation.  SB213 shifts the burden of proof on hospitals to prove that a condition was NOT caused by work activities. 

What fallout can we expect if such a law goes into effect?  Costs for operating hospitals go up, fewer resources for patient care.  Hospitals are already providing workers’ comp coverage and benefits for legitimate workers’ compensation injuries, but would also be forced to eat the cost of injuries that are NOT work-related.  How does your humble blogger know?  Because work-related injuries are already being covered without this presumption.

Hopefully, the good folks in Sacramento will have a realization that slaughtering every industry in California is not good policy, hospitals included. 

Straight on till Friday, dear readers!

Happy Monday, dear readers!

I know you’ve come here, ravenously hungry for some minor diatribe from your humble blogger about how life is unfair and the WCAB should be more receptive to my arguments and theories.  That is why you’re here… right?

Well, I just want to take a moment to pause and appreciate that we are here on the first of March, 2021.  Just think where you were one year ago.  Cruises were suddenly cancelling, there was a strange strain of the flu, and somehow everyone was worried about a Chinese virus named after a Mexican beer that could only be kept at bay by hoarding toilet paper to the magnitude of several lifetimes.  I wish I could go back and warn the 2020 humble blogger of what was to come.  But, sadly, I can’t.

Well, your humble blogger was privileged to write a short piece for the Workers’ Comp Executive discussing the possibility of COVID19 lawsuits analogous to the old asbestos cases, wherein family members of asbestos workers could sue based on a theory of breathing in asbestos left on the work clothes of employees returning home from work.  The fact that no employer-employee relationship existed between an asbestos worker’s employer and the asbestos worker’s family members didn’t bar such suits.

Couldn’t the family member of an employee who got COVID19 at work and brought it home sue in the same fashion?  That was the claim made by a husband and wife couple in San Francisco, which alleged that the husband’s employer violated various safety guidelines, resulting in the husband being exposed to and contracting Covid, and then spreading that infection to his wife.

The case was dismissed, giving the plaintiffs a chance to amend, so it’s not clear if the case or this theory will ultimately prevail.  However, the blood is in the water now, and, speaking for all the lawyer sharks out there, this is unlikely to be over.  Although the Order grating dismissal is very binding for this particular case, we’re likely to see more attempts such as this to squeeze employers for workers’ comp benefits AND civil tort benefits.

Now, why is your humble blogger wasting your precious time with this?  Because, the atmosphere in the defense community, speaking with colleagues and opposing counsel, seems to be one of complacency regarding resisting COVID19 claims.  Since the typical course of COVID19 seems to be a few days of flu, a few days of quarantine, and then back to business as usual, some employers are just eating the very limited exposure and moving on.

Efforts such as this should give employers pause and remind us all of the merits of investing in a thorough investigation.  Admitting the link between work and the first COVID infection makes it a lot easier to establish that it was spread at home.

Just think, dear readers, how great things will be looking when we revisit this blog post on March 1, of 2022.

Have a good week!

Happy Friday, dear readers!

Your humble blogger tends to spend some of his evenings, long after the house and the world outside the front door have gone quiet, sipping his Buffalo Trace and shaking his head in disbelief at some of the things that go in our beloved swamp of workers’ compensation.

For example, a Buttonwillow, CA workers’ compensation claimant has been charged with insurance fraud after allegedly failing to disclose prior workers’ comp injuries.  If the allegations are to be believed, then despite receiving a $90,000 settlement for a 2010 injury, the criminal defendant/workers comp applicant failed to disclose the prior injury while pursuing a 2017 claim, but also denied any prior injuries in deposition.

At this point in the blog post, I would ask all the fraudsters and applicant attorneys to stop reading for the day, so I don’t give anyone ideas…

Now that it’s just us in the defense community, how often have you seen:

1. Applications of Adjudication filed with Paragraph 8 of Page 4 (the one that says: “Other cases have been filed for industrial injuries by this worker as follows:”) blank, only to later discover prior claims filed?
2. The middle name and last name moved around or just slightly misspelled?
3. The social security number field left blank?
4. The date of birth digits off by one or in the wrong order?

Well, all of these tactics, of course, are quite deliberate and to serve a particular purpose: to make it harder to discover past claims and past awards that might lead to a claim being denied or a pay-out being reduced.

Certainly there are ways to discover these prior claims: ISO reports, creative EAMS searches, and ol’ reliable – the deposition!

But Labor Code section 4663(d) already provides that “[a]n employee who claims an industrial injury shall, upon request, disclose all previous permanent disabilities or physical impairments.”  Should defendants have to incur the cost of a deposition, which often enough is in the thousands of dollars, for a duty imposed by the Labor Code?

There’s no dispute that defendants are entitled to depose applicants and conduct discovery – but wouldn’t the right to discovery include questioning applicant about past injuries and treatment?  A review of the records will let the defense attorney know which questions to ask.  Reviewing these records after the fact is hardly as effective as reviewing them before the deposition, but you’d have to know about them to do that.

California has a time-honored tradition of doing “reforms” every few years, with the interests being focused on satisfying the mandate of the “Universal Attorney Employment Act,” which dictates, of course, that workers’ compensation attorneys in particular are guaranteed gainful employment in litigating all the minutiae and red herrings that the workers’ comp system has to offer. 

Well, if your humble blogger may be so bold, perhaps the next reform should put serious teeth into pleading requirements, including requiring accurate biographical information (name, date of birth, Social Security Number) and perhaps some serious sanctions, such as dismissing the claim, for misleading the parties by failing to disclose past workers’ compensation claims.

I know, I know, dear readers, not very likely.  But a blogger can dream, no?

Have a good weekend!

Alright, dear readers, your humble blogger is going to give you some free advice.  Now, before I do, I shall remind you of two things: things are typically worth exactly what you pay for them (which calls into question the merits of this blog) and, your humble blogger rarely gives advice (which is odd, given his profession as one of the more opinionated defense attorneys in our beloved swamp).

Here it goes: Watch The Office (American version).  If you have watched it, watch it again.  It is awesome.

In one scene, one of the characters, Jim, invites his coworkers to his home for a party, and he invites another character, Dwight, in particular because Jim’s roommate did not believe Dwight existed, based on the stories Jim related to him.  So too with workers’ compensation.  When I relate the battles we fight to those blessedly ignorant of our daily struggles, I am often accused of making things up. 

“Yes, you can have a cumulative trauma that magically appears right before you retire.”

“Yes, you can be permanently, totally disabled and then magically recover five years after you got hurt, especially once the big checks clear.”

“Yes, sometimes we pay more for utilization review than the cost of the treatment we are reviewing.”

So, with all that in mind, let’s take a look at Li v. Kaiser Permanente, a recent panel decision.  The case had to do with an interpreter seeking costs for deposition preparation of the injured worker.  The defendant noticed applicant’s deposition and advised that it would provide interpreting services for both the preparation and deposition.  The WCJ ultimately denied the interpreter’s petition for costs related to the deposition preparation.

The WCAB panel denied reconsideration.  Citing Labor Code section 5811(b)(1) and Contreras v. Gibson Farms, the WCAB held that it is the party producing the witness that should provide the interpreter, and since the defendant noticed the deposition, the defendant should provide the interpreter.  

The reasoning highlighted that the burden was, of course, on the interpreter: “Cost petitioner has failed to provide any evidence why it was reasonable and necessary to use an interpreter chosen by applicant instead of defendant.  There is no evidence that defendant was unable or unwilling to provide an interpreter for deposition preparation.  There are no objections in the record, if any were in fact made, by applicant to the use of an interpreter provided by defendant.”

So, what can we take from the Li case?  First off, in order for an applicant attorney to get an interpreter paid by the defense for deposition preparation, the applicant attorney needs to make some sort of timely objection when the defense provides notice that it intends to select the interpreter.  Second, this is a friendly reminder that cost petitioners, like interpreters, have the burden of showing that their services were actually rendered and actually necessary.

Finally, we should all be reminded that not all of our efforts will be to turn away million-dollar exposure cases or reducing permanent total disability claims to take-nothings.  Often enough, our time is spent with smaller matter to make sure those matters don’t become big ones.

Originally [George] Washington’s Birthday, president’s day celebrates all the presidents of These United States.  Aside from being a federal holiday, Presidents’ day is also a state holiday, which of course means that any filing deadlines that would fall on today would be pushed back to the next business day, or Tuesday, February 16.

Your humble blogger submits to you that while we absolutely should continue to have a Presidents’ Day holiday, the WCAB community would benefit greatly from a different holiday, called Precedents Day, where we celebrate such notions as stare decisis, and the benefits of order rather than novel law and interpretation created in the halls of the judiciary.  Unlikely, I know, but your humble blogger can dream – both about the veneration of prior decisions as well as the possibility of yet another state holiday.  One day…

In any case, your humble blogger wishes you a happy and restful holiday and hopes you return healthy and rejuvenated for more of the same in the workers’ compensation system.

Cheers!