On November 3 of last year, Americans from coast to coast went to vote.  In California, we voted not only on Federal issues, but on local ones as well.  With any close election, there’s typically some disappointment, and this voting day was no exception.

Proposition 22, which was passed into law by a majority of California voters in November, would exempt certain “gig” or “app-based” workers from the effects of AB-5.  With AB-5 the legislature attempted to turn UBER and LYFT drivers, among a whole slew of other workers and professions caught in its blundering dragnet, into employees.  Even if the driver wants to be an independent contractor.  Even if UBER and LYFT are only offering independent contractor arrangements.  AB-5 would have overruled the wishes of the parties and forced an employment relationship, and Proposition 22 reversed this arrangement.

Hypothetically speaking, AB-5, which went into effect January 1, 2020, changed your average UBER driver from an independent contractor to an employee, and Proposition 22 changed that UBER driver back.  So, an UBER driver “t-boned” by a truck on January 15, 2021, would likely have filed a workers’ compensation claim against UBER.  UBER would have denied the claim arguing that the driver was not an employee but an independent contractor, and would have been right based on Proposition 22.

Well, not everyone was happy with Proposition 22.  Anyone looking to hurt UBER or LYFT, or any driver who doesn’t want to be an independent contractor, can join the suit seeking to have Proposition 22 overturned.  If the suit is successful and the California Supreme Court strikes down Proposition 22, then AB-5 would likely control and turn the independent contractors back into employees. 

Meanwhile, any pending claims should be eyeing this development closely.  UBER and LYFT would likely want to race as fast as possible to a priority conference, arguing that whatever happens at the Supreme Court level, the law CURRENTLY is that UBER and LYFT drivers are independent contractors and the claims should be dismissed.  To protect against pending appeals, they might be inclined to resolve any such claims by way of C&R with a Thomas finding. 

Meanwhile, applicant attorneys will be urging their clients to hold out, will be trying to delay trial as long as possible, and will be trying to stretch out appeals hoping the law is reversed up top, reviving their claims.  The pressure will be on applicants, of course, to get some money now rather than wait and possibly get nothing.

Meanwhile, UBER and LYFT hold the ultimate trump card – they already voted with their money; they already voted with their voices; and they already voted with their, well, votes.  The next step, if the Supreme Court gives UBER and LYFT a reversal, is to vote with their feet and stop operating in California. 

The two companies offer a service that is incredibly popular socially and tremendously beneficial – there is no shortage of volunteers wanting to drive for one or both.  Generally speaking, wherever the two start operating, instances of DUIs fall drastically.  And, unlike the money and effort necessary to obtain a taxi-cab medallion, there aren’t really many barriers to entry: almost anyone with a clean and safe car can drive for the two.  UBER has previously threatened to leave California if forced to shift from using independent contractors to employee-drivers.

The reason I bring this to the attention of my beloved readers, other the immediate implications for workers’ compensation practice, is because the California Legislature’s treatment of UBER and LYFT is a highly visible symptom of a chronic disease – how many other beneficial but not as visible companies are driven out of the state because of arduous regulation and labor laws?

Perhaps, before proposing legislation, a declaration under penalty of perjury should be required from each elected official involved that they have reread a certain fable of Aesop’s within the last 3 months.  Those behind efforts to overturn Proposition 22 might likewise derive some benefit from a refresher of the story.

Have a good weekend, dear readers!

Happy Wednesday dear readers!  While browsing LinkedIn recently, your humble blogger saw a photo of children viciously attacking a Piñata, as some children are known to do, and it reminded me of an obscure bit of history. 

In the Soviet Union, for a very brief period of time, Piñatas were very popular.  The idea of hitting something and candy, or, really, anything edible, coming out, was a big “hit” (see what I did there?) right away.  Unfortunately, they quickly became unpopular.  You see, in the grand tradition of the nesting doll, Soviet piñata makers were ordered to make smaller piñatas inside of other piñatas.  Children soon found themselves cracking open Soviet piñatas, only to find smaller Soviet piñatas inside, and so on.  Children all over the workers’ paradise cried in frustration and gave up.

Some historians, none very credible or respected, attribute the collapse of the Soviet Union to the devastating effect on morale this short-lived phenomenon had on the population.

In a lot of ways, workers’ compensation fraud is like a Soviet pinata.  You bash it and you bash it.  You smack it with sub rosa and whack it with criminal prosecution.  And what comes out?  More fraud.

Well the wheels of Justice are ever turning and Department of Insurance reports that a Fresno construction worker has been charged with multiple counts of insurance fraud and perjury.  The criminal defendant, who will not be named as he is charged and not convicted, collected temporary disability benefits on an accepted injury and denied subsequent employment, but was caught on sub rosa tape commuting to another construction company and, presumably, working as an employee. 

In all likelihood, records will be subpoenaed from this second employer which will probably show earnings that predate deposition testimony made under penalty of perjury. 

The claims adjuster in this case was likely diligent and picked up on a red flag prompting sub rosa and then the instant criminal referral.  We should all take a lesson to be as vigilant.

Your humble blogger hopes the victims are made whole and justice is done in this case.

Straight on till Friday, Comrades!

Happy Monday, dear readers!

Sometimes injured workers are faced with a daunting choice: undergoing surgery or having their Temporary Disability checks cut off.  Without surgery, in some case, an applicant’s condition might be considered to have reached maximum medical improvement.  Should that period of weeks and months while an applicant is “thinking” about whether or not to undergo surgery be covered as TD periods?

Let’s look at the recent panel decision in the case of Ware v. Sutter Health.  Therein, the AME declared applicant’s condition permanent and stationary, leaving open the possibility of an elbow surgery sometime in the future.  Subsequently, a new treating physician reported applicant was “TTD” and requested authority for an elbow surgery.  Well, applicant argued that argued that surgery on the horizon was enough to make him temporarily disabled, while defendant argued that until applicant actually undergoes the surgery, he remains P&S.

The WCAB ultimately sent this case back to the trial level for further development of the record, but not without offering this guidance: “If applicant’s condition, at present, is P&S, and it is found that the elbow surgery is necessary, applicant would not become temporarily totally disabled on the date of surgery, as argued by defendant. He would be temporarily totally disabled as of the date that reporting physician determined that the elbow surgery was appropriate. Therefore, under those circumstances, the issue would be, at what time did applicant’s condition warrant the elbow surgery. If applicant does not undergo the surgery, the issue would be moot.”

Reading this suggests that a defendant is right to deny temporary disability benefits until applicant actually undergoes surgery, but then should retroactively pay benefits from the date of surgery back to… when?  When does the surgical procedure become… “warranted”?

Is it when the doctor says applicant needs the surgery in a PR-2 report?  Or perhaps when an RFA is submitted? Or maybe when UR recommends authorization?  Or perhaps when IMR reverses the UR denial? 

What if UR approves of the surgery but applicant “thinks” about surgery for a few months before going through with it?  In Flannery v. WCAB, a writ denied case from 1997, the split panel reversed an award of TD from the date a post-P&S surgery was recommended in 1994 onward.  The surgery was postponed repeatedly due to various reasons, including applicant getting sick, the doctor himself needing surgery, and applicant needing a non-industrial surgery in the interim.

We’ve all seen plenty of times the situation where a treating physician prescribes a course of treatment, it is denied by utilization review, and the treating physician takes the position that the applicant will not be P&S until the recommended treatment is authorized.  Well since UR determinations are good for a year, wouldn’t that denial satisfy the definition of CCR section 10152? (“A disability is considered permanent when the employee has reached maximal medical improvement, meaning his or her condition is well stabilized, and unlikely to change substantially in the next year with or without medical treatment.”) 

At the very least, this panel opinion appears to suggest that while TD might accrue at some point prior to surgical intervention, no TD is actually due prior to the surgery going forward.

Welcome back dear readers! Your humble blogger hopes the three-day weekend was marvelous and restful.

But, since you’re reading this, either the break wasn’t that engaging or you’re back to work, so please allow me to use the mighty soap box that is this most humble of blogs to denounce the machinations of our friends in Sacramento once again.

Now, I know full well that if I denounce “what they’re doing” in Sacramento, a LOT of things come to mind without narrowing the scope, so feel free to let your imagination run wild.

But since I’ve taken the trouble to write this blog, perhaps you will allow your humble blogger to impose upon you to finish reading it?  In this particular instance of outrage and angst, your humble blogger rails against proposed Senate Bill 216.

What does BS 216 SB 216 have to do with workers’ comp, you might ask?  Well, everything.

Workers’ compensation insurance is only required for those that have employees (although there are some exceptions, such as roofers).  Self-employed individuals can opt out having insurance, as can business entities without employees.  Why would anyone want to opt out of having insurance?  Well, as your humble blogger has learned through the process of becoming an adult and then even more so through the process of becoming a cynical adult, most questions that begin with “why” can be answered with “money.”

If a licensed contractor doesn’t have any employees, the pressure is there to keep costs as low as possible to be as competitive as possible on quotes for services.  Being required to purchase workers’ compensation insurance means increasing the cost of bids, rendering the independent contractor less competitive.  In a similar vein, requiring a licensed contractor to purchase volcano insurance would have a similar effect.

To be fair, the reasoning for the law is sound: many licensed contractors claim to have no employees, then hire workers off the books and leave their clients holding the bag when an injury occurs.  But the remedy in this case appears to be worse than the cure – adding another “tax” to licensed contractor operations, in this case requiring workers’ compensation insurance when there are no employees, is just going to drive more licensed contractors into the underground economy.

After all, the more expensive the cost of compliance with the law, the more incentive to risk breaking the law, no?

Your humble blogger sincerely hopes that the Legislature in Sacramento declines to turn this proposal into law.  Navigating California’s business environment is difficult enough, and living in California is expensive enough, without bearing these additional and unnecessary costs. 

Till Friday, dear readers!

Happy Monday dear readers!

Trust me when I say, dear readers, that I’m not offended if you aren’t reading this on a Monday.  As we all know, today is Martin Luther King, Jr. Day. 

In California, MLK day is a holiday, so, pursuant to California Rules of Court Rule 1.10, if the last day to perform a task falls on today, that deadline is extended to the next day that is not a holiday (in this case, Tuesday, January 19).

Your humble blogger hopes this day of rest allows his beloved reader an opportunity for rest and reflection, before we resume or often confrontational and regularly maddening grind.

Until Wednesday, dear readers…

Happy Wednesday, dear readers!

Your humble blogger brings you a report from the WCAB which yesterday, January 12, 2021, issued a “significant panel decision.”  This is not an en banc decision, of course, which means it is not necessarily binding, but it is intended to provide guidance to the various WCJs throughout the state.

The decision? Gao v. Chevron Corporation, and it has everything to do with testifying in person at trial.  Applicant attended trial in person on her psyche claim back in March of 2020.  However, due to time constraints, the trial was continued to June 9, 2020 (oh how young we were back in March of 2020, that we thought we’d still have trials in person just 6 months later).  Well, the obvious happened and in-person appearances at the WCAB were suspended (and still are).

Defendant wanted to continue the trial, including presenting its rebuttal witnesses, in person and not via remote testimony.  Applicant, however, wanted to proceed with a trial via remote methods.  The facts reflect applicant resided in Ontario, Canada, and probably preferred not to have to fly during a pandemic.

The Trial Judge sustained defendant’s objection and continued the trial until testimony could continue in person.  Part of the reasoning of the trial judge’s grant of a continuance turned on defendant’s due process rights: applicant had testified in person and defendant wanted to present its witnesses in person as well.

Applicant sought removal of the order continuing the trial, and the WCAB agreed to review the matter.

Initially confirming that both parties retain due process rights in workers’ compensation proceedings, which are, essentially, “notice and the right to be heard,” the WCAB also highlighted the workers’ compensation’s system obligation to provide expeditious and inexpensive justice in all cases. 

Accordingly, the WCAB ruled that it was inappropriate to continue the matter until in-person testimony could be resumed, but that, instead, the WCAB must provide for due process under the circumstances of the moment.  The WCAB also acknowledged that cases are always unique (as much as they might all seem the same to long-term practitioners) and that “it would … be inappropriate to institute a blanket rule that it is per se unreasonable to continue a case to allow for in-person testimony.”  The WCAB would also place the burden on the party requesting the in-person trial to show good cause.

So, while not a hard and fast rule, it appears the WCAB seems to be inclined to put the “default” setting to remote trials, while still allowing the party objecting to a remote trail to plead its case and show good cause.

What might constitute good cause?  Perhaps credibility issues – if one of the parties has serious doubts about the credibility of one of the witnesses, the need for the Judge to observe the demeanor of the witness to make a determination as to credibility.  It’s hard to sneak peaks at a cheat-sheet when physically on the witness seat, while one could do just that while on a video-conference.  We also have the possibility of a witness being coached by the attorney via text messaging or instant messaging.

The same reasoning should apply for a deposition – storming out of a deposition because you don’t want to answer the hard questions makes for a different record than pretending to have “connectivity issues” and stopping the deposition that way.  “Aw shucks, the internet is cutting out, so no one is to blame, right?”

The defense in this case may proceed with articulating in detail why video conferencing is inadequate for the Judge to weight credibility (if that is, in fact, the basis of the objection to a trial over video conferencing), and plead its case for in-person trials. 

But, hypothetically speaking… what happens if the trial Judge says that he or she cannot adequately assess credibility of a witness via tele-conferencing?  Would that be good cause to continue the trial?  I would think so, and whoever is hurt by the delay will have just one more reason to curse COVID19.

Well, it’s Monday again, dear readers.  Are you ready to get back to work?

Despite the activity in the news, workers’ compensation is a constant.  Weather, COVID19, politics… these things are all temporary.  But workers’ compensation is forever.  Long after the sun has gone super nova and all trace of mankind has vanished, there will still be UR denials and panel litigation.  Don’t ask me how – it is the magic of the Workers’ Compensation laws.

With that hopeful tone to cheer us on, let’s talk about one of the more frustrating aspects of the AMA Guides – grip loss!  The AMA Guides allow a rating impairment for grip loss in “rare” cases where the evaluator believes the loss of strength is not represented adequately by other rating factors.  This is supposed to be strictly limited by the Guides in section 16.8a on page 508: “Decreased strength cannot be rated in the presence of decreased motion, painful conditions, deformities, or absence of parts (eg, thumb amputation) that prevent effective application of maximal force in the region being evaluated.”  (Emphasis original).

Well, if you have an applicant-oriented or pro-applicant biased PQME, these restrictions don’t really matter.

Despite all the hoopla and dressing, grip loss is inherently subjective.  If the PQME decides to copy-paste the text “the applicant demonstrated full effort during grip loss test,” then the inherently subjective “best effort” is still subjective.  But if your evaluating physician isn’t aware that grip loss isn’t a freebie, or if your evaluating physician doesn’t care that it’s not a freebie, you might see grip los added to all sorts of conditions.  Can you imagine getting a rating for a hand amputation, but then having the QME add a grip loss impairment?  Crazy, no?  If an applicant’s shoulder hurts after surgery, odds are the full strength will not be on display for a grip loss test either.

Well, recently a case originating in Sacramento came before the WCAB, Minniefield v. Dept’ of Corrections Inmate Claims.  Applicant, an inmate, sustained a shoulder injury that underwent surgical intervention.  In finding the injured worker P&S, the PQME also assigned shoulder impairment based on lost range of motion (21% UEI), distal clavicle resection (10% UEI), and 17% UEI based on loss of strength. 

In the same report, the PQME found that the strict rating most accurately described the applicant’s impairment, and so an Almaraz/Guzman rating was not necessary.

Well, the strict rating doesn’t allow for a rating of grip loss “in the presence of decreased motion” and there’s no other rating.  In granting defendant’s petition for reconsideration, the WCAB returned the matter to the trial judge with instructions to further develop the record to obtain a report that is substantial medical evidence.

Specifically, the guidance of the WCAB was to check off the following to-do list to complete the record:  (1) obtain a strict AMA Guides rating; (2) explain why the strict rating doesn’t accurately reflect the applicant’s disability; (3) provide an alternative rating under Almaraz/Guzman; and (4) explain why the alternative rating more accurately reflects the applicant’s level of disability.

This doesn’t really help defendant in this case – a competent cross examination will help the PQME cure any defects in the report, and the ultimately result will likely be the same level of disability only under Almaraz/Guzman rather than the AMA Guides.   In fact, the final report will likely look something like this: AMA Guides – range of motion and surgical result; Almaraz/Guzman – add on the grip loss.

But, such a defect in a report and the resulting finding that the report is not substantial medical evidence can help in some cases.  Sometimes buying time for the defense can gain a tactical advantage because of other circumstances, such as giving applicant more time to heal or an intervening injury providing an additional defendant. 

Further, if the record consists of a PTP report that is more conservative but is without defect, then, presumably, there is no need to develop the record as the treating physician’s PR-4 can be the basis of an Award.

So if you’re faced with a rating inflated by grip loss, take a close look at 16.8a and see if the physician issuing the rated report complied fully with the requirements of the AMA Guides.  It looks like the WCAB is at least somewhat receptive to arguments when such reports come up short.

Happy Wednesday, dear readers! 

Now that we’ve all gotten over our glow and inclinations towards good will to all mankind and are back to being the cynical, cold-hearted nay-sayers of the workers’ comp world (or is that just your humble blogger?) I would like to share with you one of my many gripes with the workers’ comp world.

I get that cumulative traumas happen.  I get that we are all sustaining cumulative traumas that are 100% fatal, sooner or later.  I get that California has made employers the general insurers for conditions that deteriorate because of time and not because of industrial activities.  Fine.

But what the heck is the deal with this low bar of employees getting a free pass on the statute of limitations?

Labor code section 5405 requires an application to be brought within one year of the date of injury (or the date of last benefit provided).  Of course, for a cumulative trauma, the date of injury is defined by Labor Code section 5412 as the date that the employee both suffered disability and “either knew, or in the exercise of reasonable diligence should have known” that the disability was industrially caused. 

Well, if you ask the applicant’s bar, there’s no such thing as “reasonable diligence” and the only way an applicant can trigger LC 5412 is if there is a signed and notarized letter autographed by every physician in California and Puerto Rico telling applicant that he or she has an industrial injury.  Your humble blogger is, perhaps, taking what might be called by some, artistic license in paraphrasing the position of applicant attorneys on this point.  More realistically, almost any applicant attorney will tell you that unless the applicant is a licensed physician, there’s no way the applicant should have known the cause of any symptoms or injury.

Well, that’s not what the Labor Code says – while the medical report would satisfy “known,” there is no medical report necessary for a finding that “in the exercise of reasonable diligence should have known.”

In fact, your humble blogger provided some examples where the California Courts have found 5412 satisfied without a medical report, taking the words “should have known” at face value. 

Well, that’s why it was so refreshing to stumble across the case of Hilton v. County of Ventura, a recent panel case that originated in Sacramento before heading to the (now virtual) 9th floor of the WCAB in San Francisco. 

After taking testimony at trial via telephone – trial occurred in July before we had the benefit of LifeSize to do video trials – the WCJ concluded that applicant was aware of the work-related nature of her injury at the time she quit her job in October of 2016, and that she failed to file an application until 2019. 

Ultimately, the trial judge found that applicant’s claim was barred by the statute of limitations, and rejected her claim that “she was not aware her injury was work-related until she received a doctor’s report stating as much.” 

Thank you, dear readers, for listening to my rant.  But I will impose upon you by asking for one more thing: don’t assume that a statute of limitations defense will fail in a CT claim just because you can’t find a doctor’s note that predates the application by a year saying the injury is industrial.  Explore how reasonable an applicant’s professed ignorance is in the context of the claim before cutting those benefit checks.

See you on Friday!

Happy Monday dear readers! Your humble blogger welcomes you back from marathon revelry!  Christmas and New Year gave us all three-to-four day weekends and the time in between was probably not the easiest to focus during.  So, now that we are all back and hungry to dig into our work again, I thought it only appropriate to welcome you back with a relatively light post.  Here you go:

Ok, now that you’ve had your light post, let’s talk about dealing with workers’ comp in 2021.

If you have an injured worker out on temporary disability, you might check if the hourly wage for that worker was the state minimum wage.  While the state-wide minimum wage as of January 1, 2020 was $12/hr for employers with under 26 employees, and $13/hr for employers with over 25 employees, both of those have gone up $1/hr.  Accordingly, the likely TD rate has gone up as well and should be recalculated.

With respect to mileage reimbursement, the IRS has decreased reimbursement from 57.5 cents for 2020 to 56 cents per mile for 2021.  Some applicant attorneys and employees might “forget” that the rate has been reduced and may submit mileage reimbursements requests on the old rate.  Those 1.5 cents/mile reimbursements can add up quick, especially when the employee travels from more rural areas to reach a physician, so be aware! You can find the updated forms here.

Also, let’s not forget that AB685 is now in effect, which imposes pretty arduous requirements on employers to notify employees of potential COVID19 exposure and their rights to benefits, including workers’ compensation.  Employers should brush up on the requirements of AB685 and be ready to comply to avoid paying big bucks to the state. 

This year is absolutely going to present its own challenges, but we are now more hardened than ever and ready for it.  At least, that is your humble blogger’s opinion.  See you on Wednesday!