Here we are again, dear readers!  While we’re all dodging COVID19, fires, poisoned air… could it be that The Ghostbusters were right in their predictions?

Well, in any case, I’ve got something that might cheer up one or two of my readers with a soft spot in their heart for the defense community: a defeated lien!

The split panel decision is that of Ross v. Therma Corporation/Travelers.  Therein, lien claimant filed a petition for reconsideration after a WCJ ruled that its lien was not timely filed.  As we all know, Labor Code section 4903.5(a) provides that a lien must be filed “more than 18 months after the date the services were provided, if the services were provided on or after July 1, 2013.”

Well, in this particular case, the lien claimant was the Regional Medical Center of San Jose, and a lien in excess of $2 million was filed on January 10, 2018, less than 5 years from the 2015 date of injury, but well over 18 months from the last date of services provided.  Well, shortly after the case was resolved via C&R, applicant’s attorney advised that the parties had all be served with copies of the lien claimant’s lien in 2016, but the lien was rejected by the WCAB as there was no filing fee attached.  So, the question posed was, of course, should the statute of limitations bar the lien?  Since the parties had notice of the lien claim in 2016, although it was not accepted by the WCAB, would that be enough to toll the statute of limitations?

Well the WCAB majority, in affirming the WCJ, held that the statute of limitations served as a bar.  The 2018 “refiling” of the lien was not timely, as no lien was filed within 18 months of the last date of service.

The majority reasoned that once the affirmative defense under the statute of limitations was established by showing that the lien was not filed within 18 months of the last date of service, the burden shifted to lien claimant to prove either waiver of the defense on the part of defendant or estoppel on an equitable basis.   Because there was no evidence that defendant knew of lien claimant’s error regarding the lien filing, estoppel could not be established.  Likewise, nothing in the record suggests that defendant tried to trick the lien claimant into thinking it had successfully filed its lien to get an advantage.   Nor was there any evidence of waiver of the defense, as it was first raised some two months after the lien was filed.

The dissent, however, would have reversed the WCJ, reasoning that the purpose of the statute of limitations is to prevent a party from being prejudiced by surprise or delayed action.  However, since in this case, there was no surprise – defendant was aware of the lien as early as 2016, and allegedly operated on the assumption that a valid lien was filed, that no prejudice is present.

A pretty decent result for the defense, and some more guidance, though not binding, that the statute of limitations does have a few teeth (even though they snag more lien claimants than applicants).  

Aside from the result in this particular case, should the fact that there was a clerical error matter?  In your humble blogger’s opinion, yes it should.  Part of the reason for the rejection of the lien was the failure to include a filing fee.  If the Board were to allow the lien prosecution to proceed, then wouldn’t every lien claimant serve the lien but not file it, and then only file the fee when all efforts at settlement were exhausted?  The filing fee isn’t an admission ticket to go to trial, but rather a bar to baseless liens.  Perhaps the Board should send out a Notice of Lien Filed the way it sends out a Notice of Application, so that the parties can defer responding to “served” liens until the Board confirms the lien has been filed and processed.

What do you think, dear readers?  Lien on that comment button or send your humble blogger an e-mail.

Happy Monday, dear readers! It’s been a minute, and you can rest assured that your humble blogger has missed your kind e-mails, welcoming comments, and, on occasion, vague accusations of “hostile blogging.”  So, the talk of the town, as it were, is the Legislature’s passage of SB1159, which codifies Governor Newsom’s executive order and expands upon it for the purposes of COVID19 presumptions.  Though not law at the time of this blog post, it is anticipated that Governor Newsom will soon sign SB1159 into law.

There is plenty in SB1159 to tinker with and analyze, but I thought I’d pick one issue out to touch on in today’s blog post.   SB1159 creates a “disputable” presumption that contracting COVID19 in certain circumstances is an industrial injury.  So, what’s a disputable presumption?

California Evidence Code 600 defines a presumption as “an assumption of fact that the law requires to be made from another fact or group of facts…”. It further defines that “a presumption is either conclusive or rebuttable…”. (Section 601).  Well, if a presumption is either conclusive or rebuttable, then what’s a “disputable presumption?”

Various Courts of Appeal opinions have used the term “rebuttable” and “disputable” interchangeably.  For example, DOC v WCAB/Alexander wrote: “(1) any specified injury or illness which developed or manifested itself during the officer’s service was rebuttably (“disputably”) presumed to have arisen out of and in the course of employment.”  Likewise, California Horse Racing Board v. WCAB/Snezek held “Because Snezek was a police officer for a political subdivision, the WCJ ruled that the heart trouble presumption set forth in section 3212 applied and was not rebutted.” 

Of course, Labor Code section 3212 et seq. uses the same term, “disputable” presumption, for compensability of certain conditions to peace officers.

Assuming SB1159 is signed into law, we can expect litigation over COVID19 causation to be fact-heavy, but there’s also likely to be some litigation about the meaning of key terms and the burden of proof.  Clearly “disputable” doesn’t mean “conclusive.”  But unless disputable and rebuttable are actually interchangeable, is the standard for disputable somewhere between conclusive and rebuttable?  Certainly, the legislature is aware of the term “rebuttable” as it is used in various Labor Code sections throughout the code.

Your humble blogger’s expectation is that defendants will be required to provide something more than a preponderance to effectively dispute or rebut these disputable presumptions.

What do you think, dear readers? 

Happy Monday, dear readers!  How are we holding up?  I hope everyone is safe and doing their best to avoid breathing in the smoke that is riddling California.  If you know a firefighter, drop him or her a line of support because the challenges they are tackling right now are a step or two up of intensity as compared to rescuing cats from trees – the work is grueling, endless, and insanely dangerous!

As far as the workers’ compensation world, we continue on as before.

So, your humble blogger brings you the panel decision in the case of Juan Quinonez v. Bodega Latina Corporation.  Therein, the parties had reached a Compromise and Release agreement but apparently the C&R did not cover the issue of the supplemental job displacement benefit voucher, which applicant sought after resolving the case via C&R.

The WCJ ultimately ruled that because defendant had failed to make an offer of regular, modified, or alternative work within 60 days of receipt of the Physicians Return to Work & Voucher Report, a voucher was due.  Defendant responded by arguing that the report issued after the C&R was approved and applicant voluntarily resigned his employment.  The WCJ ruled that a voucher was due and, in the face of defendant’s reconsideration petition, the WCAB affirmed: “applicant’s resignation notice relinquishing his rights to employment with defendant does not absolve defendant from its obligation to provide applicant with a SJDB voucher.” 

So… the defendant owes the voucher? 

The WCAB panel here is telling us that the record can continue to be developed even after settlement of the case, isn’t it?  After your C&R check has cleared, applicant can continue to develop the record to support supplemental benefits, such as a voucher.

So what’s a good idea for handling these cases going forward?  How do you make sure that your closed file doesn’t get reopened to have to provide a voucher?

Well, for one thing, your defense attorney should probably start including language in the C&R that addresses this issue.  Another important thing to remember to get done as part of the file closure procedure is to contact any physicians with pending reports: AME, QME, or PTP, and cancel the request for services.

Just one more thing we need to keep an eye on as we wrap up our files, dear readers!

Stay safe out there! 

Happy Friday, dear readers!

Well, another week, and we made it! You are to be congratulated on your steely will, your courageous focus, and your determined defiance of all the forces of the universe conspiring to keep you from making it this far.  In recognition of your super-human will, dear reader, and your apparent wisdom in your choice of which blog to read, I reward you with this: another blog post.

So, many workers’ compensation attorneys, both applicant and defense, reflect with some frustration how much of our practice is spent litigating panels and panel specialty.  On more than one occasion, I have seen judges react to the issue of panel disputes with a look that could only mean one thing: “I put my judge’s robe on for this?”

Well, it matters, dear readers.  It matters a lot.  The general perception in the workers’ compensation community is that orthopedists and surgeons tend to be more conservative, tend to find less WPI, and tend to be more willing to find that the cause of the injury, if there is one, is not industrial.  The same perception is true the opposite way for Pain Medicine, PM&R, and Chiropractic medical evaluators.  True or false, this is the perception in the WC community by both applicants and defendants.

Recently, the WCAB ruled in the case of Brenda Miller v. AARP/Arch Insurance, issuing a split panel opinion on a case out of Sacramento.  Through the magic of the panel process, an orthopedic surgeon ended up as the panel QME and found that the injury, as alleged, was not industrial.   

Well, the trial judge issued an order that applicant take nothing by way of her claim, and she appealed, arguing that the QME’s opinions are not substantial medical evidence.

The majority never reached the issue of substantial medical evidence.  The panel held that “regardless of whether [the PQME]s reports constitute substantial medical evidence, it was applicant’s burden to provide medical evidence of industrial causation.  Applicant did not provide such evidence, did not provide any reports from her [PTP] in rebuttal to [the PQME]’s opinions, and did not seek to depose [the PQME].  Since applicant did not carry her burden of proof, we will affirm the WCJ’s decision.”

The dissent would have required development of the record, but I believe we covered your humble blogger’s findings on that score in a previous post.

The dream of the workers’ compensation system, at least in adopting the 5^th Edition of the AMA Guides in 2005, was to provide for an objective system of measuring impairment such that two doctors of two different specialties could look at a case and come up with the same conclusion.

While in theory there is no difference between theory and practice, in practice there is.  There are so few QMEs willing to take on cases now adays, that most practitioners are familiar with the QME’s inclinations before the exam.  This familiarity is the basis for recommending an AME or the strike of a name from a panel.  And the results are visible in cases such as these.

So, as much as we think it is a poor use of our lofty lawyer skills, perhaps litigating panel disputes really is worth it in the long run?

Have a great weekend, dear readers!

Happy Monday, dear readers!

Your humble blogger has some secret news for you.  Thanks to my network of sources and informants, I’ve come across some very, very “hush hush” information that I need you to swear you’ll keep between me, you, and… well… anyone else reading this blog.

On Wednesday, July 29, 2020, the Assembly Insurance Committee was scheduled to hear testimony regarding SB1159, the proposed legislation codifying Governor Newsom’s COVID19 presumption executive order.  Apparently, this has now been postponed until August 11, 2020, however, but all signs point to the bill proceeding along the track so wisely laid out by School House Rock.

As presently written, Senate Bill 1159, drafted by your humble blogger’s own State Senator, Jerry Hill, would presume industrial causation for cases where the claimant contracted COVID19 and showed symptoms within 14 days of work through July 5, 2020.

The glaring defect in enforceability under Governor Newsom’s executive order – that the state Legislature has sole authority to draft legislation concerning workers’ compensation, would effectively be cured by this.

So, your humble blogger is becoming more and more of the opinion that maybe, just maybe, this isn’t the best use of the legislature’s time.  Hear me out on this, dear readers.

California has almost 450k cases and about 8.4k deaths.  Out of a population of almost 40 million people, that’s a rate of 1.1% for infections.  Of those cases, the death rate is less than 2%.  How many corona virus claims have we had in the workers’ compensation system?  Just speaking as to anecdotal evidence – aside from hospital and healthcare workers, I haven’t seen COVID19 claims appear as a major factor.  In fact, I’ve probably seen more orthopedic CT claims resulting from shelter-in-place caused lay-offs.

The healthcare worker cases don’t even seem to be contested – in most cases they are paid in full and the healthcare workers return to work after a few weeks.

If I’m wrong, dear readers, please let me know and I will (metaphorically) wear sackcloth and apply ashes to myself, probably by declining to enjoy scotch or port for an entire evening.

Now, I should take a moment to clarify – your humble blogger is not minimizing the effects of COVID19 in general.  Perhaps the legislature would better spend its time addressing COVID19 impact statewide, rather than within the workers’ compensation system.

Straight on till Wednesday, dear readers!

Happy Monday, dear readers! It is another beautiful Monday morning in California.  The Boards are accessible by phone call, the depositions are going forward over ZOOM, and lawyers up and down the state of California engage in the zealous advocacy of their clients’ interests while wearing fuzzy pajamas.  Not your humble blogger though – suit and bow tie every day!

Anywho, one of the charms of the legal profession in general and workers’ compensation in particular is that if you think you’ve mastered anything, ANYTHING, you are probably wrong… at least a little wrong.  The law keeps changing, new trends and theories develop and are accepted and then rejected and replaced.  In short, we are all continuously learning and (hopefully) improving.

To that end, your humble blogger brings his beloved readers’ attentions to the recent panel case of Jose De Leon v. Santa Ana Rios Farm Labor/Star Insurance Co.  Therein, the WCAB, after a petition for reconsideration filed by applicant, issued a finding that applicant’s 2013 injury should be rated to 17% permanent disability and was awarded indemnity in the amount of $17,545.00.

Now, you might be thinking to yourself 17% PD is equivalent to $17,545… so what’s the problem?  Well, for 2013 injuries, permanent disability benefits capped out at $230 per week for 17% PD, not $290, so a finding of 17% is actually worth only $13,915.

Some 11 days after the WCAB issued its ruling, defendant e-filed a letter to the WCJ asserting the correct PD valuation.  A second letter, addressed to the WCAB, was e-filed about a month after the first.

The WCAB issued an Opinion and Order Correcting Error, issuing a new award with the correct PD valuation.   But in so doing, it offered some guidance for us practitioners:

• “[T]he award of an incorrect amount of permanent disability indemnity is not a clerical error, which the Appeals Board can correct at any time… Rather, the award of an incorrect amount of permanent disability indemnity is a judicial error for which a timely filed Petition for Reconsideration is required to confer jurisdiction.” 

In other words, as much as we all hate math, an error of this sort needs to be addressed in the same way as if the party contested the interpretation or application of the law: through a petition for reconsideration.

• Also, the WCAB cautioned the parties that a proper Petition for Reconsideration must be filed, and not just a letter.  Although the De Leon WCAB panel decided that due process warranted interpreting the original letter to the WCJ as a petition for reconsideration, there’s no guarantee that the next time this happens the same result will be reached.  If a party is newly aggrieved by a finding of the WCAB, even on reconsideration, a new petition for reconsideration should be filed.

So dear readers, let us take this guidance and improve our craft.  Have a great week!

Well, dear readers, what a difference a year makes, no?

Last year, we were all setting off fireworks, revving our mustangs, enjoying cold beers and hot grills. And now?

Well, let’s just say… I’ve seen better days.  We all have, sure!

But let’s look at the silver lining, so to say – things WILL get better.  Things WILL improve.

Next year, we will look back at Independence Day 2020 and remember how even in a pretty grim time, conducting family gatherings over video-chat and reeking of rubbing alcohol and anti-bacterial gel without anyone doubting our sobriety, we still managed to set up a pocket of time to celebrate our country and reflect with gratitude that the things for which so many people all over the world are willing to risk their lives to enjoy, we have as a given.

Hearings are still going forward today, so if you’re working don’t hesitate to call your defense attorney – odds are he or she is working too.  But if you’re one of the few, those precious few, that aren’t working today – your humble blogger envies you.

To my beloved workers’ compensation community – a very, very happy Independence Day!

How’s it going, dear readers?  We all hanging in there?

Well Wednesdays are tough – but there’s never a bad time to remind us of the need for vigilance.  Routine and complacency are so much easier and so seductively inviting, that once in a while we all need a good shake at the shoulders to remind us to be on our guard.

Let this blog post be such a shake for you – MyNewsLA reports that a CHP patrol officer has been arrested on allegations of workers’ compensation insurance fraud.  Your humble blogger declines to name the criminal defendant because accusations and four quarters will only get you a crisp dollar bill.

But the point isn’t that a CHP officer is charged with fraud, but that even those in a position of trust don’t always prove themselves trustworthy. 

In this particular case, after filing an application alleging a 2019 injury to various body parts, someone spotted the applicant/criminal-defendant engaged in various “outdoor activities” presumably in conflict with her allegations and reporting of injury.  Subsequent surveillance gave the powers involved sufficient evidence to proceed with an arrest and a criminal charge – the results of a seven month investigation.

The details will come out at trial, unless the matter is resolved before then.  But what’s the likely scenario?  If you assume the prosecution will prove its case, someone tipped off the CHP and subsequent surveillance confirmed the tip.

Without the tipoff, the SCIF would likely have not picked up on the alleged fraud in time to do anything about it.

Well, we can’t hope for an honest citizen to do the right thing in every case.  Periodically we have to be the help we’re looking for.  So, let’s let this situation remind us to follow up on tips when we receive them, but to do our own inquiries as well.

Straight on to Friday, dear readers!