Alright dear readers another week is upon us, but this is a particularly special week!  Your humble blogger keeps no secrets from his beloved readers and I will tell you why this week is so very, very special.

In 2020 so far, we’ve tackled fires, almost-war with Iran, plague, murder hornets, volcanos, and just about everything else – fill in the blank for yourself.  But in the face of all that, we’ve persevered and we are quickly reaching the turning point: this week, 2020 will be half over.  Will the second half of 2020 be a reward of smooth sailing? Or perhaps was the first half just the starter with the entre to follow.  In any case, as of next week, we’ll be closer to 2021 than we were to the start of 2020, and if you’re looking for a reason – any reason – to be optimistic, here’s one for you.

Well, the pep talk being thus so beautifully delivered, let’s talk about case law. 

In a recent panel decision, Lopez v. Prell Restaurant Group, the WCAB reversed a WCJ’s finding directing applicant to take nothing and sent the case back for further development of the record.  If there was a fact pattern to test how far the concept of “developing the record” could bend, this one comes close to dropping the bar pretty low.

What were the facts?  Applicant alleged an injury to his knee, leg, spine, bilateral upper extremities and psyche.  Applicant’s counsel did not object to a DOR to MSC and setting for trial of the issue of AOE/COE on the strength of two treatment reports.  At trial, the WCJ determined the reports were not substantial medical evidence and thus ordered applicant to take nothing on his claims.

In its opinion on reconsideration, the WCAB first acknowledged that the burden of proof to establish AOE/COE is applicant’s: the applicant must prove by a preponderance of the evidence that a compensable claim exists. Then things turn out somewhat… unexpectedly.

The panel then held that because there was no substantial medical evidence in the record (the two treatment reports being kicked out by the WCJ), the WCJ must now develop the record further and order a medical-legal evaluation. 

In other words, applicant agreed to go to trial on the strength of two treatment reports, defendant prevailed at trial in that applicant failed to carry his burden, and now the record must be developed further (at defendant’s expense) by way of a medical-legal evaluation.

So who ACTUALLY bears the burden?  Does this panel opinion suggest that defendant bears the burden of proving that the claim is NOT industrial with substantial medical evidence?  If defendant fails to do so, this panel opinion would require more litigation and discovery costs (and delays) be imposed on defendant to help applicant prove his case.

Let’s play this out – let’s say the QME comes back and finds an industrial injury, but the conclusion is baseless and the facts upon which its premised are wrong.  The parties go to trial and the WCJ again orders a take nothing because there is no basis upon which to find industrial injury.  What result? Develop the record some more, I would assume.

The only way for the defense to prevail is to have a report of substantial medical evidence finding no industrial injury.  Thus, the defense is forced to carry the burden of proving the claim is not industrial before it can close the file.  So who bears the burden of proof?

So what should defendants do, based on the Lopez opinion?  This panel opinion strongly suggests that defendants must get a medical-legal exam of their own initiative unless they want the case sent back down for further development.  Should we now increase the litigation costs of every file by a QME review and report and the extra 6-12 months it takes to get a valid panel and a final report?

What are your thoughts, dear readers?  Is your humble blogger going chicken-little on you?  I’m all ears!

Good morning, dear readers!

Here we are again on a gorgeous Monday.  In the immortal words of Alice Cooper, school’s out for the Summer, and I’m sure California’s children are eager to finally get to stay home for the Summer, having stayed home for the Spring.  Parents everywhere are reaching the conclusion that maybe, just maybe, the teachers weren’t the problem, and both defense attorneys and adjusters with young kids are begrudgingly realizing that maybe psyche claims filed by educators have some merit.

So your humble blogger has for you today a really well written panel decision, laying out the procedures for dealing with med-legal liens.  The case is Termini v. The Kroger Company, in which a WCJ awarded about $2.5k in reimbursement to medical-legal copy service lien claimant, but the WCAB sent it back for development of the record consistent with the panel’s procedure.

The panel laid out the lien procedure as follows:

1. Initially, and as a threshold issue, the copy-service lien claimant bears the burden of showing that as per Labor Code sections 4620, a “contested claim” existed, meaning the employer has rejected liability for the claimed benefit, fails to accept liability after a reasonable time to investigate, or fails to respond to a demand for payment after expiration of a period fixed by statute; and also as per Labor Code section 4621, for medical-legal exams. (This is per the en banc decision in Colamonico)
2. Aside from this burden placed upon the lien claimant, a defendant has 60 days to review a medical-legal bill or invoice and either pay it in full or less that the full amount.  Assuming the lien claimant can recover, eventually, it would be entitled to 10% increase for all unpaid sums and 7% interest per year as per LC 4622.
3. However, the penalty can be avoided with an Explanation of Review (EOR), to which the lien claimant must respond with either a request for second bill review or file an objection to the EOR, which must be made within 90 days of service of the EOR for dates of service before 7/1/15.
4. If a timely objection was filed to the EOR the defendant must then file a Petition for Determination of Non-IBR Medical Legal Dispute and declaration of readiness to proceed within 60 days, or waive all EOR-based objections.  (California Code of Regulations section 10451.1 as cited in the panel decision, but has been renumbered to 10786)
5. After all that, it is still the lien claimant’s burden to establish the reasonable value of its services.

In considering this case, the WCAB panel also reached the conclusion that the case of Otis v. City of Los Angeles, a prior en banc decision, is no longer good law in light of Colamonica.

This case was sent back to the WCJ for further development based on this guidance, but it’s helpful to all of us practitioners on how to assess and value med-legal lien claims.  Perhaps this panel opinion can also remind lien-claimants that unless there is a contested claim – unless they can point to a specific benefit demanded that was denied – there is no recovery under LC4620.

It’s Wednesday again, dear readers, but not just any Wednesday – it’s the first Wednesday in June.

What does that mean?  Not much, really, except that the WCAB announced last week that the telephonic appearance procedures will continue through the month of June.  Electronic filing will continue as before as well.

The one notable exception is that the Board will now allow up to 3 lien conference per judge’s calendar session per day.  Once those slots are filled up, the remaining lien conferences will be continued.

From my own experience, it looks like the hearings are becoming fairly streamlined – the attorneys appear to be getting pretty comfortable with appearing and addressing issues over the phone; the Judges have been saint-like in their patience and flexibility to make the technology work, and there is a growing trend of preparing in advance of the actual hearing.

Will this become the norm?  Will we limit Board appearances to live testimony under oath, and conduct all other hearings by phone?

If that’s the case, will we also see the pooling of Judges state wide?  Will we see impacted Boards getting assistance for status conference and MSCs from Boards with more availability?

The root of the necessity for these changes is unfortunate, of course, but not unlike a cow kicking over a lantern and causing the need to modernize a city, perhaps this innovation will make practice and resolution of workers’ compensation faster, more efficient, and, at least as to the litigation aspect, less costly.

So, dear readers, what do you think?  When we all feel comfortable drinking Coronas again, shall we return to the hustle and bustle of the WCAB?  Or will we live out our nightmares of [telephonically] going to court in our underwear?

Your humble blogger is looking forward to see what the future brings.

Happy Wednesday!

Happy Monday, dear reader!

Your humble blogger knows the internet, nay, the world, is abuzz with the news that SpaceX has had a successful launch and has sent Americans back into space.  It’s pretty exciting stuff, if you ask me – will Californians who volunteer as colonists for Mars be covered by California workers’ compensation?  Your humble blogger is already convinced that space-based injuries, like all injuries, are not industrial.  But the law, being less irrational and biased than yours truly, may very well reach a different conclusion.

Anyway, our own community had its own news break last week.  The Court of Appeal of the Sixth Appellate District has issued a ruling in the case of Justice v. County of Santa Clara.  The basic ruling is this: permanent disability resulting from an industrially necessitated medical procedure is apportionable. 

Just a thought, dear readers – does this mean that every opinion that differs from this one, including Hikida, is an “in-Justice”?  See what I did there?

So anyway, Ms. Justice had a specific injury to her left knee.  She later developed symptoms in her right knee as a compensable consequence.  Justice underwent a total knee replacement to her right knee a year later, and then to her left knee a year after that.  The parties referred the case to an AME who noted osteoarthirits in the knees and a tear that pre-dated the fall at work. 

The AME concluded that there was pre-existing degeneration but that everything prior to the fall would not have, on its own, necessitated the total knee replacement.  So, the AME assigned WPI and apportioned 50% of the permanent disability to pre-existing injuries. 

Well, at trial, the WCJ found that although there would normally be grounds for apportionment of permanent disability based on non-industrial causes, under the Hikida case, “where medical treatment … results in an increase in [permanent disability], [PD] should be awarded without apportionment.”  The WCAB denied reconsideration (other than to address a clerical error), and then, dear readers, Justice came face to face with the Sixth Appellate District.

The Court of Appeal restated the facts and then had a brief discussion of the Hikida decision.  That Court of Appeal opinion, issued in 2017 (does time fly or what, dear readers?), held that when an injured worker developed complex regional pain syndrome as a result of a failed carpal tunnel surgery, the CRPS was not subject to apportionment and so applicant was permanently and totally disabled (being precluded from the labor market).

In diverging from Hikida, the Justice Court cited the case of Petaluma, most humbly summarized by your most humble blogger here, that when a dormant pre-existing condition was triggered by an industrial event, apportionment was warranted, even though, by itself, the pre-existing condition had not yet caused the permanent disability.  So, in Justice, the Court reasoned that since “the injured worker … had an extensive preexisting pathology that when combined with an industrial injury, led to permanent disability…” apportionment was warranted.

But wait… how do we harmonize that with Hikida?  Is the law to be based on geography?  With injuries in Los Angeles costing more than injuries in Santa Clara?  Well the Justice Court distinguishes Hikida by pointing out that the medical treatment caused a new condition – CRPS.  In such a case, no apportionment is warranted. 

So, dear readers, you got that?  If the medical treatment causes a new condition, that condition cannot be apportioned to pre-existing factors, as per Hikida.  However, if the medical treatment causes increased permanent disability for the same condition, then apportionment applies, as per Justice. 

Going forward, though, let’s keep in mind that lawyers have no hesitation about being creative in the interpretation of words.  A new medical condition?  Well, isn’t the fact that there is no a replacement knee a new condition?  After all, the injured worker had a tear, and now has a knee replacement.  We can very well expect plenty of litigation going forward trying to stretch the harmonization offered by Justice to get back to Hikida.

Alrighty dear readers – let’s buckle in and see what new “excitement” June of 2020 has for us.  Personally, my money is on an invasion by the Molemen.  Let’s see what happens!

Hey there dear readers, your humble blogger has a question for you.  What do you do when The Workers’ Compensation Appeals Board, through a workers’ compensation Judge’s Order or Finding, exceeds its authority?

Well, a lot of times, you seek reconsideration, right?

Labor Code section 5903(a) provides grounds for reconsideration when “by the order, decision, or award made and filed by the appeals board or the workers’ compensation judge, the appeals board acted without or in excess of its powers.”

Well, Governor Newsom’s May 6, 2020, executive order appears to substantially change provisions of the Labor Code, but those changes are originating solely from the desk of the executive branch, and not from the Legislature.  In your humble blogger’s opinion, this presents a substantial conflict in the law: the provisions of the Labor Code as written by the state Legislature and the executive Order issued by the Governor.

Do you have 30 days or 90 days to investigate and deny a claim?  Well the Labor Code says 90 and the Governor says 30.  Which is it?

How often does temporary disability need to be certified?  Well the California Code of Regulations says 45, but the Governor says 15.

And what if you sit at the desk of the Death Without Dependents Unit?  Is the state to get no death benefits from deceased employees without any dependents?  The Labor Code says “no, you can’t give higher risk jobs to employees without dependents” but the Governor’s executive Order says “The Department of Industrial Relations shall waive collection on any death benefit payment due pursuant to Labor Code section 4706.5 arising out of claims covered by this Order.”

Well, as referenced earlier on this most humble of blogs, the California Constitute gives plenary power over workers’ compensation to the state Legislature, not to the Governor.

So, here’s a hypothetical for you, dear readers (and I welcome the three applicant attorneys who read this blog to participate) – let’s say there’s a COVID19 claim, and, under the Labor Code the result would go one way, but under Executive Order N-62-20 (by no means, dear readers, to be confused with Order 66) the result would go another.  Which way does the WCJ rule? 

Well, if the WCJ decides to follow Order N-62-20, isn’t that the WCAB acting in excess of its powers?  By contrast, if the WCJ decides to follow the Labor Code and not the Order, won’t the aggrieved party seek reconsideration, arguing the other side?

Just something to ponder, dear readers, as we head into the weekend.

And we’re back, dear readers.  Another Wednesday has dawned, and here I am wondering just how broken-hearted the rest of the Addams Family was that they didn’t get a day of the week named after them.  How much more bearable would Mondays be if they were called Morticia instead?  Wouldn’t Thursdays be more appealing as Fester?  Yeah, probably not.  Back to the drawing board for revolutionary ideas…

Anyway, your humble blogger is guessing that your in-box is pretty saturated with Corona Virus posts, articles, webinars, etc.  Since California is looking at an exposure rate of 90,000 cases as of May 23, 2020, for a population of around 40 million, the odds of exposure at the moment are relatively low .225%.  Maybe it’s ok to do a blog post or two about something other than Covid19?

Assuming that it is, let’s talk about everyone’s favorite Workers’ Compensation subject… Panels!!!

So a big chunk of litigation and the Expedited Hearing calendar at the WCAB is panel disputes.  Well, when a claims handler issues a delay notice, the Labor Code (4060) allows the parties to request a panel of QMEs to determine the various issues in play, such as AOE/COE.

However, the road to the panel through 4060 is relatively narrow: it applies only after the claim form is filed and only if a medical-legal evaluation is required to determine compensability.

California Code of Regulations section 30 fleshes this requirement out further: a request for a panel under LC 4060 must include a claims administrator’s notice that the claim was denied or a request for an examination to determine compensability.

Well, what happens when a claims administrator delays the claim… but doesn’t request a QME examination?  This isn’t by any stretch of the imagination an unlikely scenario as there are lots of reasons to deny a claim that have nothing to do with anything that a doctor might comment on.  For example, no amount of medical professionals is going to dissuade me that the bow tie is superior to the regular necktie.

So what happens when the employer tells the claims handler that the claimant absolutely got injured but wasn’t working on the day claimed?  The applicant stopped by work on his day off to pick up a co-worker to go out and was standing in front of the shop when he got hit by a distracted driver.

Well, upon getting such a report from the employer, the adjuster might delay the claim but not want to trigger the panel process – why incur the costs and delays of a QME when AOE/COE is going to turn on a purely factual investigation?

Well, in Plascencia v. Adecco USA, Inc., a recent panel decision, a similar situation arose.  Defendant sent out a delay letter but did NOT request a QME examination as part of the delay notice.  Defendant then denied the claim. 

Applicant obtained a panel in chiropractic medicine using the delay notice.  When the defendant tried to get a panel in orthopedic medicine panel the Medical Unit rejected the request as a panel had already been issued.

The matter proceeded to trial and the WCJ found that the chiropractic panel was invalid and the Medical Unit should issue an orthopedic panel as per defendant’s request.  Applicant sought removal.

Now at this point, your humble blogger would like to point the WCAB’s statement: “[t]he issue of the validity of the chiropractic QME panel must be addressed before further discovery and proceedings are conducted.  Both parties will be substantially prejudiced by continued trial preparation without addressing the validity of the chiropractic QME panel.” 

This is a pretty important point of guidance for all parties.  The winner of a trial-level QME dispute will often tell the loser that they should proceed with the case and then seek reconsideration later.  Well that is a poor remedy, and the Plascencia panel clearly lays that out.  Removal is absolutely appropriate for a panel dispute.

Moving on to the case though, the panel sent it back to the trial level to develop the record further to (1) have the parties address whether defendant’s acceptance of the case closes the 4060 door to get a panel; and (2) locate the claim form, as one was not included in the Board record.

But that leaves us with our own questions to address.  If the delay notice does not request a medical-legal examination, can the parties still obtain a panel?

If defendant issues a delay notice but then issue an acceptance before applicant obtains a panel, can the parties still use a delay notice to get a panel?

Can the losing party of a panel dispute refuse to participate with the prevailing party’s panel pending the WCAB ruling on its petition for removal?

One of the wonderful things about workers’ compensation is that there is no shortage of fact patterns to make every case just a little bit unique. 

What do you think, dear readers?

Happy Monday, dear readers!

Today is Memorial Day, of course, and it is a special day to remember our veterans who gave the ultimate sacrifice, the loss of life for our country.

Normally, today would see thousands of Cub Scouts, Girl Scouts, and Boy Scouts planting flags at cemeteries nation-wide, but out of concern for increasing the spread of Corona Virus, those ceremonies have been cancelled.

Many of us are still working from home, if working at all, and the days might seem to blend into one.  The monotony and routine of shelter-in-place, though gradually being eased, can often fog the bigger picture.

The current scare is temporary.  The pandemic will pass.  The sun will rise again.

When it does, we will still have a rich cultural history to draw from, preserve, and continue.  So even though we might not participate in flag planting or wreath laying today, let us take a moment to meditate on the grand scale of things.

Tomorrow, applicants’ attorneys will dial in to remote hearings and present their best arguments for why being tired after work sometimes is an industrial injury and warrants 100% PD.  UR doctors will issue denials for RFAs of extra-soft-tissue paper because the requesting physician didn’t pick up the phone after one ring for a peer-to-peer call.  Pro per applicants will appear at deserted WCAB Boards demanding pain and suffering damages for the scratched paint their parked cars sustained while they were attending a PTP visit.

But that’s tomorrow.  Today it’s Memorial Day – and despite everything, let’s all set aside a moment or two to remember why today isn’t like tomorrow.

Happy Wednesday, dear readers!

How are we doing?  Has anyone had a run in with those giant Asian murder hornets yet?  Well, as scary as it is, remember that old Pharaoh managed to survive 10 plagues, so let’s try to keep our chins up!

Well while we’re all struggling to make our way back to normal, the department of industrial relations posted the proposed regulations for QME evaluations during the crisis.

They are not in effect as of this posting, but anticipated to be effective on or about May 14, 2020. 

The regulations allow a presently scheduled in-person QME or AME examination to be rescheduled up to 90 days after all stay-at-home and similar regulations are lifted.  It also provides that even beforehand, a medical evaluator to perform certain tasks such as reviewing records, conducting phone or video interviews of the applicant, and then conduct the in-person examination after the stay-at-home orders are lifted. 

As per the regulations, the parties must provide records to the QME or AME at least 10 days prior to the tele-medicine exam.

Correction: Thanks to reader I.F. for pointing out that the fee schedule regs were stricken from the proposed language after a response from the WC community.

The regulations also have proposed fee schedule for the services –
writing the summary of the tele-medicine interview and records reviewed will be
a flat rate of $650, including the first 200 pages not previously
reviewed.  The regulations then allow charging $3 per page for pages
201-1,700, so long as those records were not previously reviewed in an exam,
and then $2 per page for everything in excess of 1700 pages.  Finally, the
face-to-face evaluation when all this is over will cost $1,316.25.

So, if the QME does a phone interview ($650), reviews 200 pages in
medical reports and issues a report, then follows up with an in-person
examination ($1,316.25) and, presumably, issues a second report following the
in-person examination, the total fee would be $1,966.25.

The proposed regulations also provide for purely tele-medicine exams, without the need for in-person follow-up, under the following conditions:

1. A physical examination is not necessary;
2. The applicant is not required to travel outside of his or her immediate household;
3. The issues to be addressed are AOE/COE, ending indemnity benefit payments, or a dispute regarding work restrictions;
4. There is agreement by the applicant, defendant, and QME/AME, in writing, to the tele-medicine exam, but the agreement cannot be “unreasonably denied” and if no agreement can be reached, the parties are to set a hearing and proceed before a Judge;
5. The visit must be consistent with the appropriate and ethical medical standards determined by the QME or AME; and
6. The QME attests that the evaluation does not require a physical exam.

Telehealth QME evaluations are to be paid at $2,015 for the exam, report, and the first 400 pages of record review; with pages 401-1700 being charged at $3 per page, and pages 1701 and onward at $2 per page.

Of interest, in-person re-evaluation after a tele-medicine QME/AME exam is to be charged at a flat rate of $503.75 (which includes an additional 200 pages of records).  And, of course, the exam is to be using video – a mere phone call is not enough.

There is a provision to allow cost modifiers for AME status instead of QME status and the use of an interpreter.  QME appointments may be set within 90 – 120 days of an evaluation request (rather than 60 – 90), and even the 120 is not a cutoff upon mutual consent by the parties in writing.

Finally, the deadlines for issuing reports are extended by 15 days.

So, here are the problems your humble blogger has with the language as written:

1. Refence is repeatedly made to the “injured worker.”  Well, doesn’t that presume a few things?  If a QME is tasked with determining AOE/COE, does that mean that these regulations don’t apply, because we first have to determine if the worker was injured?  Your humble blogger would opine that the language should instead be changed to “the claimant” or “the applicant” to the extent that an application was filed prior to obtaining a panel;
2. While a psychiatric exam might be a reasonable one to have remotely, how could one justify an orthopedic exam via tele-medicine for the purposes of AOE/COE?  If the doctor need not make a physical exam, why not just have the applicant’s attorney fill out a questionnaire and send to the doctor?  Without verifying subjective complaints through a physical exam, what’s the role for the QME in doing an exam at all?
3. The regulations propose that consent to a telemedicine QME exam cannot be “unreasonably” denied, but then don’t propose any guidance on what would be unreasonable.  Without such guidance, there will be a distinct standard for every trial judge, because by the time the WCAB has an opportunity to review the record for any semblance of uniformity, the shelter-in-place order is likely to be lifted (hopefully, at least)
4. There is no provision for video-recording the examination, even though the very act of telemedicine lends itself to such an approach and the technology is readily available.  Many of the concerns that parties have with a QME, whether applicant or defendant, is that the final report will not reflect the reality of the situation.  Perhaps the defense-leaning QME will not properly record all the subjective complaints; perhaps the applicant-leaning QME will guide the injured worker into volunteering the necessary complaints to justify higher ratings. 
   
   With a fully recorded exchange between QME and claimant, those fears could be assuaged and could only serve to bolster the validity of the examination. Unfortunately, the proposed regulars are not seizing upon this by requiring video-recorded of the exam absent waiver by both parties.

What do you think, dear readers?  Is this the inevitable destination of our beloved workers’ compensation system, or is there hoping for correcting our trajectory?

Happy Friday, dear readers!

The big news this week is the execute order signed by Governor Newsom on May 6, 2020, creating a rebuttable presumption for claims of Covid-19 to be found industrial under some circumstances.

Unlike some of the legislation pending in Sacramento, Executive Order N-62-20 seems relatively conservative by comparison.  The scope of the Order is limited to employees who test positive for Covid-19 or are diagnosed with Covid-19 (so long as the diagnosis is confirmed by testing within 30 days of the diagnosis).

The Order is also limited to a diagnosis or testing 14 days of the last day physically worked at the employees place of employment but NOT in a work-from-home scenario.  So anyone hoping to claim that “but for the stress of my work from home job, my immune response would have been better and I would not have actually contracted Covid-19 from my spouse who brought it home from the supermarket” might be out of luck. 

The time scope is limited as well – injuries must have occurred between March 19, 2020 and July 6, 2020.  There’s also no restriction on apportionment for permanent disability (if any).  As to temporary disability, it must be re-certified every 15 days instead of every 45 days.

But the worst part of the Order is in the investigatory period – defendants must accept or deny the injury within 30 days instead of 90.  Your humble blogger prides himself on moving files quickly, but I don’t think I could get a deposition scheduled and done within 30 days of a claim being made, especially when applicant attorneys have nothing but incentive to delay discovery.

Here are your humble blogger’s thoughts on this, but just bear in mind dear readers, things are worth exactly what you pay for them, so remember how gentle your blog subscription fees are on your budget…

First of all, and this is my cynic side talking – it could have been far worse.  This is pretty limited in that it is a rebuttable presumption rather than conclusive; a diagnosis must be confirmed by testing; and TD certification must happen every 15 days.

That being said, does the Governor have the authority to do this?  In the Published Court of Appeal case of Zuniga v. WCAB (2018), the Court of Appeal held that “Under article XIV, section 4 of the California Constitution the Legislature ‘is … expressly vested with plenary power unlimited by any provision of this Constitution, to create, and enforce a complete system of workers’ compensation by appropriate legislation.”  What does “plenary” mean if not exclusive?  If the Legislature has exclusive or plenary power over the workers’ compensation system, does the Governor have authority to issue an executive order as to presumptions, the burden of proof, etc.?

We must also remember that it’s not 30 days to make a determination does not mean that it’s 30 days to accept the injury.  Defendant can still issue a denial and continue discovery (we still have due process rights, don’t we?)

But, with all this in mind, here’s what employers need to do – keep your claims examiner informed!  Keep good records of the claimant’s shifts and make sure the adjuster has those.  Keep good records of the protective equipment issued and used and let your adjuster know about them.  And if your employee called in sick before making a claim, reconstruct that timeline.

Even in the face of this executive order, there is still room for a vigorous defense and careful maneuvering – the defense community need not despair and lose hope.

In any case, dear readers, your humble blogger has an executive order of his own: have a nice weekend and come back on Monday for more blogging of the humbles sort.

Happy Wednesday, dear readers!  You know, sometimes your humble blogger has to take a break from his usual hamster wheel of workers’ comp defense to reflect on what a truly blessed childhood he had.  For example, there are people in this world that did not have the absolute privilege of growing up with a toy like Stretch Armstrong.

Stretch was exactly that – a super elastic wrestler toy, and every child who played with it inevitably asked the fundamental question: just how much could Stretch Armstrong be stretched?

Well, now we’re all grown-ups and we have the grown-up version of Stretch Armstrong: workers’ compensation law.  How far can you stretch workers’ comp?  Well, as it turns out, even though our beloved swamp will stretch, and stretch, and stretch… it does have a limit.  Though rarely seen, it is there!

That brings me to the recent panel decision of Gomez v. State of California Department of Corrections.  Therein, applicant argued that “the behavior of [her] husband in response to her positive TB test constitute actual events of employment for the purposes of determining causation under Labor Code section 3208.3.”

Yeah, I had to read that a few times to follow it myself, so if it doesn’t make sense right away, or if you find yourself squinting in disbelief, I’m right there with you.

Briefly, the facts are straight forward: IW tests positive for tuberculosis and the claim is accepted as industrial.  She gets a nine-month course in treatment.  Her husband doesn’t respond to this well and the marriage falls apart, and, ultimately, there’s a divorce.  The psyche QME concluded that the predominant cause of her psychiatric impairment was the response of her husband, which, in turn, was due to her industrial injury.

Of course, that means that the predominant cause of the psychiatric compensable consequence was the industrial injury, right?

Now, of interest here, is that the psychiatric condition was NOT caused by the diagnosis of or the treatment for the tuberculosis, but purely how applicant’s husband reacted to the diagnosis, and, presumably, applicant’s reaction to her husband’s reaction.

The matter proceeded to trial and the WCJ agreed and found the psychiatric injury to be a compensable consequence.  Naturally, defendant sought reconsideration.

The panel first started by citing Rodriguez v. WCAB for a definition of a compensable consequence: “a secondary incident which, although perhaps a new and distinct injury, is not a new and independent injury but rather the direct and natural consequence of the primary incident.”  (emphasis added by WCAB panel).   The commissioners then reasoned that because Labor Code section 3208.3 imposes a higher threshold of compensability for psychiatric injury, the reaction of applicant’s husband to her industrial injury “was not a ‘direct and natural’ consequence of her industrial injury.  To the contrary, the WCJ in her Report characterized the reaction as ‘bizarre’…”

The commissioners reversed and entered a finding that the psychiatric claim was non-industrial.

So, your humble blogger is naturally pleased with the result – this is a stretch too far and the conclusion is a proper one.  But what if we tweaked the facts a little bit?  Let’s say a hypothetical applicant is in the same scenario, but the hypothetical applicant’s spouse reacts with domestic violence resulting in serious injury.  There is no higher threshold for orthopedic injuries as there are for psychiatric ones, so does a compensable consequence broken arm as a result of an angry spouse’s attack become admissible?

The cited language in Rodriguez seems to militate against such a finding – do we, as a society, expect that the direct and natural consequence of an injury is to incur violence from a spouse of family member?  I would think not and would certainly hope not.

What do you think, dear readers?  How far does the “Compensable Consequence Stretch Armstrong” toy really stretch?

Straight on to Friday, dear readers!