Well, my dear readers, we made it! 2020 is officially done and now I welcome you to 2020 part “B” 2021. I trust that our global fling with misfortune has come to an end, and now we are on the path once more to improvement in our lots and our lives.
Your humble blogger wishes you good health, happiness, and all the boons that you were denied in 2020 paid back with interest in 2021.
And, of course, for everyone reading this other than applicant attorneys and lien claimants, may your arguments be found persuasive, may your positions unassailable, and may your gambles pay off.
Happy Monday, dear readers! Well, we really are coming to the end of a stand-out year, aren’t we? Just around the corner is December 31 that will see us into 2021. As the last few grains of sands slip out of this year and the new one is fast approaching, will you join me for another blog post discussing everyone’s favorite subject for party conversation and romantic poems? I’m speaking of course, of California’s workers’ compensation system!
I bring you today the case of Garcia v. Sweet Melody Express, in which the WCAB affirmed the trial judge’s finding that applicant Garcia was not an employee of defendant. The facts are pretty straight forward – applicant claimed an industrial injury while working for defendant as a housekeeper back in 2014. Defendant was a self-employed dress seller (weddings and otherwise). Having no employees (or so Defendant maintained), Sweet Melody Express did not have workers’ compensation insurance.
The initial trail in this matter was on the subject of employment – was applicant an employee of defendant in the sense that she was a residential employee, to wit, a house keeper, under Labor Code section 3351(d) (“any person employed by the owner or occupant of a residential dwelling whose duties are incidental to the ownership, maintenance, or use of the dwelling…”) or whether applicant was excluded under subsection (8)(a) (requiring that in the 90 days prior to the date of injury, the employee worked less than 52 hours or was to be paid less than $100 in wages).
The WCJ concluded that applicant was not an employee of defendant, whether as a residential employee of defendant as an individual or as a conventional employee of defendant’s business. Although the facts support that applicant on occasion may have worked for Sweet Melody Express, on the alleged date of injury applicant went to defendant’s home to clean it. Applicant sought reconsideration.
On reconsideration, the WCAB noted, initially, that the burden of proof lies with the moving part, and applicant failed to prove her case by a preponderance of the evidence. In all likelihood, producing evidence of more than $100 in payment in the 90 days prior to the date of injury, or showing proof of working more than 52 hours in the 90 days prior to the date of injury would have carried the day. The fact that this evidence was not produced would lead your humble blogger to speculate that it doesn’t exist.
So, no employment, no compensable injury.
In this case, it looks like the WCAB adopted the mantra previously covered by this blog that, when AOE/COE is denied, the burden of proof lies with the applicant.
Merry Christmas, my dear readers! I hope this post finds you well and in good health, taking what cheer can be had from the dark times in which we find ourselves.
Your humble blogger wishes you a safe holiday, and shares with you his unyielding optimism that better days are still to come!
As we are puffing along and wrapping up 2020, the workers’ compensation machine continues to chug along. But, just as every ship comes with rats and every muffin top comes with a stump, our beloved workers’ comp system continues to be drained by fraud.
The restitution is a big win for employer and insurer – often enough ill-gotten money of this sort is already spent by the time justice is visited upon the fraudster. Further, restitution rarely covers the cost of investigation or prosecution.
Hopefully the conviction and restitution sends a warning to other would-be fraudsters about some of the consequences of cheating the system. At the same time, it should serve as a reminder for all of us in the defense community that workers’ comp fraud continues to occur, and that sub rosa and investigation (rather than just process and pay as some applicant attorneys would want us to do) are worthwhile.
In any case, dear readers, Christmas is just around the corner, so let’s keep our chins up. If life turns you into a muffin, choose to be the top – not the stump!
Your humble blogger loves the smell of workers’ compensation litigation in the morning, and today is a magical day for certain. Christmas is just around the corner, New Years’ isn’t far behind, and in just a couple of weeks everyone will think themselves so clever for saying “hindsight is 2020, and now 2020 sure is in our hindsight!”
So, not unlike Soviet Santa who brings freezing children lumps of coal to great soviet cheers, I bring you a panel decision today reversing a “take nothing” of a psyche claim. But this isn’t just any case… this one is interesting to say the least. It is the split pane opinion in Munoz v. Department of Corrections.
Applicant, a case records analyst at a corrections facility, alleged a psychiatric claim as a result of her employment with the department of corrections. The PQME opined that the psychiatric condition was caused 35% by an e-mail to applicant that there would be a meeting (in all probability to follow up on a reprimand/corrective counseling) and 35% from hearing about her husband’s friend being attacked. Another 10% was assigned to receiving a reprimand.
The employer maintained that the psychiatric condition was barred by the non-discriminatory good-faith personnel action defense of Labor Code section 3208.3.
At trial, the WCJ agreed, only to have the WCAB majority split panel reverse on appeal! So what happened?
The WCAB panel held that under the en banc law set out by Rolda v. Pitney Bowes, Inc., the analysis goes as follows:
Does the alleged psychiatric injury involve actual events of employment?
Does competent medical evidence establish the required percentage of industrial causation?
Were the actual events of employment personnel actions?
Are those personnel actions lawful, nondiscriminatory, and made in good faith?
The parties did not dispute that the 10% original reprimand was a non-discriminatory good-faith personnel action, but what about the e-mail that triggered such anxiety? Does the email that there would be a meeting to follow up on a reprimand count as a non-discriminatory good faith personnel action?
The email telling applicant and her staff of an impending meeting did not include the details of what would be discussed at the meeting, but applicant suspected it would be for further reprimands. The email made her upset and anxious. Despite all this, the employer witnesses testified that the meeting was a general one to go over procedures, and not to hand out reprimands or further counseling.
Although applicant’s fears regarding the substance of the meeting were unfounded, they still had a damaging effect on her psyche, contributing to the industrial injury.
Well, the WCAB majority reasoned that a routine meeting is not a “personnel” action as contemplated by Rolda and the Labor Code, so a reaction to an email about a meeting or the meeting itself, such as in this case, cannot be the basis for the defense.
But, as your humble blogger learned in law school so many, many years ago – if you want to know what REALLY happened, read the dissent!
The dissenting voice cited County of Sacramento v WCAB (Brooks) and Bray v WCAB for the proposition that applicant’s subjective response to a good-faith, non-discriminatory personnel action is not the liability of the employer. In fact, the general holding in those cases is that the reaction to the action is a symptom of the injury, not the injury itself.
Accordingly, applicant’s stress, panic, anxiety, and worry after receiving the e-mail regarding a meeting were the symptoms of the psychiatric injury – the injury itself being not the e-mail, but the good faith, non-discriminatory personnel action to reprimand her for some misconduct.
What do you think, dear readers? What is the distinction between an applicant’s subjective response to a good faith, non-discriminatory personnel action and the actual action? Do subjective responses to events of employment qualify as “actual events of employment”?
Alright, dear readers, it is Friday. We have made it this far, and I have a feeling we’re going to keep going. Can you believe we are finishing up the first week of December already?
Well we should all be gearing up for the start of 2021, and, of course, that means a new TD rate.
The DWC has announced that the maximum TD rate for 2021 will go up from $1,299.43 for 2020 dates of injury to $1,356.31 for 2021 dates of injury. The minimum TD rate will be $203.44 for 2021 dates of injury.
Likewise, the State of California has calculated a SAWW increase of 4.3774%, which should be applied to any COLA calculations for life pensions.
The days are cold, the nights are long, and Old St. Nick is trying to figure out how to go from house to house without spreading Covid-19 related death and illness. In short, all is just as it should be.
Lest we all forget that Corova Virus not only dogs our steps out in the real world, allow your humble blogger to remind you that Covid19 also casts a long shadow over the workers compensation world. Not only is the risk of contracting the virus an issue for all of us as people, not only is the risk of contracting the virus a possible basis for a workers’ compensation case, but the non-industrial impact on the world at large also has a footprint on claims that has nothing to do with a positive Covid test.
What better way to illustrate that point by bringing you the case of Corona v. California Walls Inc., a recent WCAB panel decision?
Applicant Mr. Corona sustained an accepted industrial orthopedic injury and temporary disability benefits were paid. He then returned to modified duty shortly before facing the same that countless workers in California, the United States, and the world continue to face: shelter-in-place orders resulted in a work stoppage and applicant being out of work.
So, here’s the question: does defendant owe TD benefits when, as a result of the shelter-in-place order, it no longer could accommodate applicant’s work restrictions?
The defendant’s position is reasonable, in your humble blogger’s estimation – It’s California that’s barring you from collecting a paycheck, not your employer. Take it up with the Guv. Likewise, the tax-free temporary disability benefits that applicant is claiming are not available to workers injured on a non-industrial basis or who are not injured at all. Those workers have to seek their benefits elsewhere.
The proposal to require an employer to pay temporary disability benefits caused by the State of California’s Shelter-in-Place guidance puts an industrially injured worker in a better situation than the non-injured co-workers.
The WCJ ruled in favor of applicant, finding defendant owed TTD for the period after shelter-in-place required the stoppage of work.
On appeal, the WCAB affirmed. Among other authority cited, the WCAB relied on the holding in Dennis. In the Dennis[the menace] case, the WCAB held, en banc, that defendant-prison was not make a “bona fide” offer of regular, modified, or alternative work when applicant-prisoner had been released from incarceration and thus could not accept the job.
Of course, the instant Corona case applies this reasoning to the issue of obligation to provide TD benefits, whereas Dennis had to do with a voucher.
But, of course, the same concerns that your humble blogger expressed about the holding in Dennis apply here as well:
Applicant truck-driver lost his driver’s license due to a DUI? Too bad, pay TD.
Applicant Registered Nurse lost her license due to failure to keep up with CLE? Too bad, pay TD.
Applicant [generic profession; take your pick, dear readers] deported? Too bad, pay TD.
Of course, the burden of this policy falls on the employer and its insurer, which will then in turn falls on all of us. Every time any Californian is frustrated with getting less goods or services for the same amount of money, one of the reasons is going to be the cost of bringing that good to market.
Your humble blogger hopes now, as when the opinion in Dennis issued, that we soon get some binding, higher authority that benefits such as TD and a voucher are NOT due when the lack of return to work is not related to the industrial injury.
Did we express gratitude for all the good things that we have (and all the bad things that we don’t)? Are we still working our way through leftovers? Did we engage in the latest fad of calling online shopping “virtual black Friday” when it’s really just… you know… online shopping?
Anywho, the holiday season is far from over. December is loaded with special celebration an the pot of gold at the end of the rainbow awaits us all at midnight on 12/31 – 2020 becomes 2021 and everything should start returning to normal. That’s how this works… right?
In the meantime, there’s no reason not to keep up to date on current events. As the saying goes, the path to hell is paved with good intentions, and nowhere is that clearer than with the exploitable scam that has been developed to fit the supplemental job displacement benefit voucher scheme.
In theory the voucher program is a good one. Instead of padding the pockets of applicant attorneys or physicians, this is a benefit that goes specifically and, presumably, exclusively to the injured worker to develop job skills and mitigating the impact loss resulting from industrial injuries. I have seen injured workers use the voucher to take computer classes, brush up on existing skills to modernize their abilities, or subsidize higher education classes for an entirely new career. It’s rare, but it does happen.
Well, recently the Riverside County District Attorney’s Office announced that it has charged 14 people in a $22 million fraud scheme having to do with vouchers as well! According to the district attorney’s release, the accused were cashing out vouchers by fraudulently billing the full value of the vouchers for services never rendered, and then giving a portion of that money to the injured workers.
Because the right to a voucher can be monetized by a savvy and motivated third party, the cost of each claim goes up. An injured worker might be entitled to a voucher but might have no interest in pursuing it (or using all of it). But if a third party can gain a fraudulent benefit from the voucher, then each case would have the higher cost before it closes.
On top of that, when the supplemental return to work fund is pursued, the fund gets more and more exhausted each year. Well employers and insurers must replenish that fund every year. If fraudulent voc-rehab facilities “charge” applicants for helping them apply for supplemental return to work benefits, that fund gets depleted faster and the employers and insurers have more to replenish each year.
So, from the bottom of my cold, dark, defense attorney heart, I urge my beloved readers to take a good look at litigating vouchers – this is not a minor expense but an area of the law worth monitoring and investigating, let alone litigating. After all, the Riverside County DA is alleging $22 million in fraud!
Your humble blogger wishes you a safe, if socially distant, holiday and hopes that, despite everything we’ve been through in 2020, we can all think of many, many things for which we should be grateful.
To that end, and I hope this is not presumptuous to a degree beyond your ability to forgive, I would like to exert what little influence I have over you to engage in a simple thought exercise. Think back, if you would, to Thanksgiving 2019. What did you have then for which you forgot to express gratitude, that you have lost in this year?
It feels like only yesterday, as the fires in the Bay Area and surrounding counties diminished, that I took my first really deep breath in a while and felt gratitude for clean air and a visible sky. I remember how I didn’t have to worry that I could bring home a potentially fatal virus, or listen to my kids begging to go back to school to see their friends, or keep an eye out for murder hornets. Overall, 2019 seemed to be at least 10 times better than 2020, but I don’t think I was even half as grateful for it as I should have been.
If at the strike of midnight on December 31, 2020, the curse if lifted and things start going back to “normal,” what will we remember to be grateful for on Thanksgiving 2021?
Tomorrow, we will engage in a grandly bizarre experiment of online Black Friday. On the weekend we will slowly regain our ability to breathe after overeating Turkey and the such. On Monday we’ll go back to litigating over apportionment and medical provider networks and QME specialties. But for today, even with fewer plates around the table, let’s all take a moment to realize how much worse things really could be, and how lucky we all really are.
I, for one, am so very grateful for my readers as I’m sure they are grateful that these posts come out (at most) three times a week.
Good morning, dear readers. Your humble blogger offers you one totally undeniable fact, that I would challenge even the most argument-inclined applicant attorney to dispute: today is Wednesday. And, as we all know, Wednesday is a very special day because it is named in honor of everyone’s most beloved Addams family member.
Now, to those of you who are thinking that your humble blogger has mentally checked out as the Thanksigving holiday approaches, you aren’t entirely wrong. But, from the few brain cells that remain diligently on duty, not unlike brave Horatius, please allow me to submit this most humble of blog posts.
We all love the stories about workers’ compensation fraudsters being caught doing ridiculous things, typically an “injured” worker who lies about the causation or the nature and extent of injuries. It’s always a big laugh to see an applicant claiming total paralysis accepting a first-place trophy for a triathlon. After all, dear readers, we laugh to hide the pain.
But there is plenty of fraud, sadly, that occurs not from an injured worker, but on the part of medical practitioners. Some physicians submit fraudulent bills, either overbilling for services rendered or submitting invoices for services never performed. The first line of defense against such fraud is usually a diligent adjuster, but the California Department of Insurance recently charged and arrested a chiropractor for (allegedly) submitting fraudulent bills and the claims adjuster who (allegedly) intentionally paid these fake bills for a portion of the proceeds.
Your humble blogger is one of those old-school types that still subscribes to the antiquated notion that it is the government’s burden to prove guilt, and innocence must be presumed before a conviction is made, so I will again decline to name names. But, if you are cat-like in your curiosity, you can follow this link to get the full scoop.
As alleged, this scam ran for 12 years and involved up to 459 liens for a total of $1,603,340 stolen from the insurer. The adjuster (again, allegedly), settled all liens under the authority limit to avoid detection by a supervisor. It was only a diligent co-worker who noticed a suspicious lien payment and started an investigation. Quis custodiet Ipsos custodes?
Your humble blogger wishes all parties in this case the best of luck in bringing the truth to light, and hopes justice is served, wherever the chips may fall. But your humble blogger also wants this to be a reminder for all the claims adjusters and examiners out there to be diligent in helping identify and report the fraudsters sitting at the neighboring workstation that’s trying to sell the profession’s good name for a few dollars.
