Happy Wednesday, dear readers!

Since we just rolled into October, I thought I should ask… do you have any plans for New Years? 

Well, if you’re looking for something to do, how about updating the TD rates?  As we all know, temporary disability benefits in California are tied to the State Average Weekly Wage increases to give us our minimum and maximum, as per Labor Code section 4453(a)(10).  According to the Department of Industrial Relations, effective January 1, 2020, the TTD minimum rate will go up by 3.84%, bringing us from $187.71 to $194.91; the maximum will go from $1,251.38 to $1,299.43 per week.

If you’re paying out a life pension, you may want to adjuster accordingly as well.

So, your humble blogger’s advice is to set yourself a calendar reminder on our Outlook or Google Calendar for 1/1/2020 so you don’t miss the increase, and then turn your attention back to surviving 2019. 

Well, well, dear readers, it’s been a minute, hasn’t it?

But as a come-back post, isn’t it fitting to do so on the Jewish New Year?  So a very chipper Hag Sameach to my beloved readers.  As the kids say now a-days, “new year, new me” so why not new year, new blog post?

Well if you have time to take a break between slices of apple dipped in honey and eating Challah that’s round instead of braided straight, let me throw a bit of workers’ compensation at you.

Now, what better way to start the new year than some sweet, sweet news.  In this case, I bring you a report on the published Court of Appeal decision in the case of Renee Skelton v. WCAB.   Therein, applicant Skelton sustained two admitted injuries and filed claims for both.  The pain point of contention that came before the Court of Appeal was whether applicant was entitled to TD benefits for taking time off work to attend medical treatment appointments. 

Applicant proceeded to trial on this issue and the WCJ held that applicant was not entitled to TD benefits for time lost to attend medical treatment appointments.  On appeal to the WCAB, a split panel agreed with the WCJ, holding that TD is not owed for doctor visits.

On review by the Court of Appeal, the justices affirmed.  Relying on the Supreme Court decision in Lauher, the Skelton opinion reasoned that workers’ compensation does not provide a “make whole” remedy, and some of the burden of an industrial injury falls upon the injured worker.  The Lauher case also reasoned that “employees with nonindustrial injuries must follow the same rule and use their sick leave when away from the office attending medical treatment.”

Running with this line of logic, the Court of Appeal held that Renee Skelton was not entitled to wage loss for time taken to attend medical treatment appointments.  “Once Skelton recovered sufficiently to return to work full time, she was no longer entitled to TDI … Skelton admits that she returned to work full time after her injuries … Neither Skelton’s time off work nor her wage loss was due to an incapacity to work.”  (Emphasis in original).

Ok, so good news, right?  Once an employee is P&S or has returned to full duty, the lost time to attend medical appointments does not trigger TTD.

The Court of Appeal also spent some time discussing that time off to attend medical-legal exams warrants TD benefits, but I’ll skip over that point for this blog post.

I know some of my dear readers are thinking “Big deal, humble blogger.  Why couldn’t you come back with another blog post about panels?  What a waste of time.  I want my money back!”  But before we all start demanding our subscription fees be returned, let’s think about a possible broader application laid out by the Court of Appeal for us:

If the entitlement to TD is limited to an incapacity to work, don’t we have citeable authority from the Court of Appeal for situations in which there is no incapacity to work, but there’s also no work available?

What happens if the employer could accommodate work restrictions … but for some other reason:

1. Legal right to work in the United States?
2. Mass lay-off?
3. Closing of the business?
4. Termination for cause?

So, what do you think, dear readers?  If the employer could accommodate work restrictions but for some reason unrelated to the industrial injury, does Skelton hold (and give us binding authority) for the proposition that no TD is owed?

Your humble blogger certainly thinks it does, but, to keep things fair… this is a defense blog after all!

Happy Monday, dear readers! 

Have I got a story to tell you!

For years now, I have been hearing rumors from various sources about an exciting new way to combat workers’ compensation fraud, minimize case exposure, and bring files to swift and economical resolutions. The source of this power was said to be found in Hawaii.

Dedicated defense attorney that I am, I loaded up the family on a plane and began a fact finding mission. Sadly, all I found was warm beaches, friendly faces, and Mai-Tais as far as the eye could see. I came back a week later slightly tanned but with no miracle cure for workers comp to share with you.

However, I am not entirely empty-handed as I ooze into your in-box this morning. Everyone loves a good story about [alleged] workers’ comp fraud. 

Well, in this case, it isn’t some “injured” worker double-dipping between collecting temporary disability benefits and working a side gig.  It isn’t even some employer skipping on carrying a workers’ comp policy and pocketing the premiums.

In this story, workers’ comp fraud is alleged against two physicians.  Psychologist Danita Stewart is alleged to have submitted fraudulent claims for medical legal evaluations, despite not being a QME. 

The other, Dr. Catalino Dureza, had his QME designation but it lapsed.  He is alleged to have continued conducing QME exams with a lapsed license.

So now we apply what we learned on this must humble of blogs.  Do you have a case with either Dr. Dureza or Dr. Stewart as the QME?  If so you might want to check the timeline of those reports against the Medical Unit’s QME Database. 

As for your humble blogger, I will continue to investigate threats to the defense community whether they are to be found on beaches, cruise ships, or any other vacation destination.  After all, dear readers, I am here for you!

Hello there, dear readers!  Are you feeling a little too cheerful?  Do you need something to bring your happiness down a notch or too?  How about the grim and dark subject of death to keep those joyful inclinations in check?

Then prepare to conjure images of the grim reaper, but bearing a brief case instead of a scythe and a suit instead of a black cloak.

The case in mind is a writ denied case, Kriha v. City of Los Angeles, and the issue at the heart of the matter was the statute of limitations for the widow of a deceased police officer.  The deceased sustained a cumulative trauma ending on May 6, 2008.  He died on September 16, 2014.  The date of injury for the CT ending on 5/6/08, however, was found to be April 29, 2011, based on the “date of knowledge” element of Labor Code section 5412. 

However, an application for death benefits was not filed until December 15, 2014, 189 weeks (or 3 years, 7 months) from the “date of injury”, although only a few months after the date of his death.

The WCJ held that the death benefits were not barred by the statute of limitations because proceedings were initiated less than 240 weeks from the date of injury, and less than one year from the date of death, as per Labor Code section 5406.

The WCJ awarded death benefits as per the Labor Code. 

So what’s the deal?  Why is defendant seeking reconsideration and, after that, a writ of review?

The argument for the defendant lies in the date of injury.  To wit, the date of injury, as per the City of Angels, should be the end of the CT period, May 6, 2008.  In that case, the death benefits claim would be barred, being more than 240 weeks from the date of injury.

The date of injury for a cumulative trauma is set by statute, to wit, Labor Code section 5412, which defines a CT DOI as the date the injured worker suffered disability and knew or should have known of the industrial causation of the injury.

Defendant asserted that the accrual of temporary disability benefits as of June 30, 2008, along with a claim form alleging the mechanism of injury filed in June of 2008, should shift the date of injury to outside the statute of limitations period.  But the rub lies in the fact that neither the WCJ or the WCAB commissioners could find any such claim form filed in EAMS.

From the way the panel opinion is drafted, it does not look like the claim form was filed or offered into the record. 

And here’s the other kicker – the original case was stipped out.  Searching EAMS as I draft this, the “injury date” is listed as 10/26/1964 – 05/06/2008.  In fact, if my discerning readers would care to look at the form provided by the DWC for Stipulations with Request for Award, both page 1 and page 5 provide for a date of injury, and in the case of cumulative trauma, the fields provided are for start date and end date.

So, your humble blogger does not have the stips signed in the Kriha case  before him, of course, but would be willing to bet dollars to doughnuts that the stipulations signed resolving officer Khira’s case in chief reflect a date of injury in 2008.

So, what does that mean for the rest of us?  We all have our share of cumulative trauma cases that we have stipped out.  Does that mean that all of those were resolved without a date of injury?  Should we be specifically listing, as an issue resolved, the date of injury in our cases?

I don’t take any pleasure in the thought of a police officer’s widow being deprived of death benefits, and it is emotionally gratifying, if not logically, to see that result avoided in this case.  However, it is concerning to me that what should be a given – that the date of injury listed in the field provided for “date of injury” on stipulations with request for award forms – might not be effective.  

What are your thoughts, dear readers – am I just being paranoid or does such reasoning have the potential to disturb cases previously resolved via stipulated award?

And we’re back, dear readers!  A riddle for you – a man rides in to town on Friday, spends the night, and then leaves on Monday.   How is this possible?  Well, his horse is either named Friday or Monday, of course.  You see, I tricked you. 

But therein lies the distinction between a trick and fraud.  To quote Michael Blooth: “I deceived you… [t]rick makes it sound like we have a playful relationship.”

While we can all laugh about playful little tricks, fraud is, of course, no laughing matter.  Thus is the story of Jason Gordon, a Los Angeles Police Officer who has plead no contest to misdemeanor workers’ compensation fraud.  He is sentenced to three years probation, 300 hours of community service, and ordered to pay $12,000 in restitution. 

Despite being on medical leave for an accepted case, Mr. Gordon was claimed to have been engaged in various physical workout activities that were not “consistent” with his injuries.

Mr. Gordon was with the LAPD for 9 years, during which time, your humble blogger speculates, plenty of cases reached the point of conviction based at least in part on the apparent credibility of Mr. Gordon. 

Police officers aren’t the only ones that commit fraud, of course, but this goes to confirm that even police officers are just ordinary people doing their jobs, and neither their training nor their oaths of service effectively prevent some of them from engaging in deceptive and dishonest behavior.

So, then, why should we hand them a presumption of a largely subjective injury, like a psyche claim, as touched upon in Wednesday’s post? 

“Bad boys, bad boys, watcha gonna do…?”

You know what California really needs, dear readers?  We need a strong lobby group that will protect our most precious and marginalized citizens.  A lobby group to look after the interests of those that are rarely thanked, often forgotten, and frequently subject to abuse.  I am speaking, of course, of the workers’ compensation defense attorneys and adjusters.

Perhaps if we mobilized our numbers, marched with our heads held high, and demanded that our contribution and suffering be recognized, we could finally… yeah… no one is buying this, are they?

Ok, anyway, while we on the defense side do NOT have a strong lobbying group, it looks like the advocates for police and firefighters are diligently and zealously pushing protection laws through the legislature.

I bring to your attention, of course, Senate Bill 542, introduced by California Senator Henry Stern. 

In addition to the various presumptions already enjoyed by peace officers, SB 542 would now add section 3212.15 to the labor code, expanding the scope of “injury” to include PTSD or mental health disorder as described by the DSM or the American Psychiatric Association.

Speaking as a citizen… is this really necessary? Of course, LEOs and firefighters are exposed to serious, dangerous events.  They are tasked with running into the danger as the rest of us are running away from it.  At the same time, they are specifically trained for these dangerous activities and are equipped, whether with physical tools or mental preparation, to address these issues.

That’s not to say that it is impossible or even unlikely that an LEO or a firefighter cannot sustain psychiatric injuries.  But when they sustain them, why should the burden of proof be lower than for non-peace officer?

There are already enough cynics that look at our workers’ compensation system and regard workers compensation as a second retirement package.  Some practitioners even go so far as to suggest that some claimants keep their intent to retire secret and file workers’ compensation claims at the end of their careers to boost their retirement income.  As one reader, SH, suggested to me in a recent e-mail, this is particularly the situation with Longshore cases.

If an LEO or a firefighter sustains a psychiatric injury as the result of work activities, let him or her make the claim and approach it like any other claimant.  At least, that’s what your humble blogger would propose.  But then again, it has been a while since the legislature of California darkened my doorstep seeking this blogger’s wisdom.

Straight on till Friday, dear readers!

And here we are again, dear readers – Monday morning roulette.  Will there be good news?  Will there be bad new?  Will your humble blogger frantically call you asking to post his bail?

Relax, dear readers, it’s one of those “good news” blog posts. 

The WCAB came down recently on the side of defendant in the case of Batson v. CA Department of Corrections.  Applicant alleged an injury and during the course of its investigation, Utilization Review certified the need for hydrocodone-acetaminophen, left hip total replacement surgery, and intermittent limb compression DVT and venaflow calf cuffs.  In other words, it looked like defendant might be exposed to more than just some Advil and an x-ray while it explored if the claim was compensable, and might actually reach the $10,000 cap of Labor Code section 4502(c). 

However, between the date UR certified the treatment and the treatment was actually to be provided, defendant denied the claim.

Applicant went to trial on this issue, seeking to require provision of treatment “authorized” by Utilization Review prior to the issuance of the denial.  The WCJ ruled that the treatment must be provided by defendant, and defendant sought the intervention of the commissioners of the WCAB.

In reversing the WCJ, the WCAB noted that utilization review is limited in scope to medical necessity.  Accordingly, a treatment might be entirely reasonable and medically necessary, but this does not address the question of whether the claim is compensable or whether the need for the treatment is industrial in cause.

Further, the WCAB held “[r]egardless of whether treatment is medically necessary, by the plain language of section 5402(c), a defendant is not required to provide medical treatment after it has timely rejected liability.”

Now, the kids these days are finishing their online communications with “tl;dr” which I am informed by credible sources means “too long; didn’t read.”  In the spirit of embracing the new, allow your humble blogger to offer this tl;dr – Certification of medical necessity is rendered irrelevant by the issuance of a timely denial.

Have a good week, dear readers!

Happy Friday dear readers!

Many of you are too young to remember this, but back in my day, there was a wonderful comedian by the name of Yakov Smirnoff, who often quipped about life in the Soviet Union as compared to the United States, himself being an immigrant.  He once joked that Taco Bell was banned from the U.S.S.R. since the start of their advertising slogan: “run for the border.”

And that brings us to today’s post.  No, no, dear readers, Borders Bookstores is never coming back, so don’t get your hopes up.  But Taco Bell posted something rather interesting to LinkedIn (thanks to reader JJ for the link!)  it would appear that Taco Bell is diving head first into replacing life employees with kiosks to automate ordering, having already deployed more than 4,500.

Now this isn’t limited to California, of course, but Taco Bell does have a lot of California locations, and each kiosk can effectively replace 1-3 jobs, right?  And, of course, kiosks don’t file workers’ comp claims and don’t seek overtime pay.  They also are in sync with a growing desire to avoid human interaction as much as possible…

So what does your humble blogger predict by peering into his Buffalo Trace Bourbon crystal ball?  This is going to show as a proof of concept for the multitude of competitions in the fast food industry.  These kiosks will render a better experience for customers because of fewer ordering errors, capacity for multiple languages, and greater display abilities for choices, while also saving money for the employer.  Win-win.

Now, who among you is so inclined to give these kiosks a test drive over the weekend and send a report to your humble blogger of the results?

And here we are again, dear readers!

Often enough, we have applicant attorney fighting tooth and nail, proverbially speaking, to keep out of a defendant’s MPN.   Sometimes it is for legitimate reasons like when an applicant walks into an exam room and is asked to place the audio recording of the doctor giving a generic exam.  Sometimes it’s for less legitimate reasons like “I got a guy who will put TD checks in your left pocket and some serious drugs in your right, but he’s not in the MPN.”

Sometimes, however, you have the case where the reason why an applicant is not treating in the MPN is because the claim was denied to begin with.  So what do you do once the claim has been accepted?

Well that was the fact pattern in the split panel decision of Kim v. Elite 4 Print, Inc.  Therein, the facts are just as above.  Applicant’s claim is denied so the treatment is received from a non-MPN physician.  Then the claim is accepted and applicant refuses to transfer care into defendant’s MPN.

The split panel sided with defendant on this one – a limited victory but your humble blogger will take what he can get, as he has learned from his run-ins with Mr. Yev Kasem.

The WCAB majority noted that defendant sent applicant, applicant’ counsel, and the non-MPN doctor a letter pursuant to section 9767.9.  However, an expedited hearing was set with applicant advancing the theory that “based on its initial denial of applicant’s injury claim, is defendant … permanently barred from transferring applicant into its MPN…”

The majority noted that “section 4603.2(a)(2) does not preclude defendant from exercising medical control through its MPN after it accepted applicant’s claim of injury.” 

One commissioner dissented, however, reasoning that the record failed to adequately address the question of whether defendant denied or failed to provide care.

So there’s something to take cheer in, at least.  And, dear readers, what better way to start the week with some good news.

Happy Friday, dear readers!

Come on… let’s get real.  For at least 85% of you today is Monday because who in their right mind would come in on Friday, July 5^th, right?  So, you did the sane thing and took a 4 day weekend.  What better way to celebrate independence day than to exercise a bit of freedom and take the day off?

Well, your humble blogger remains diligently at his post, cranking out the work product and seeing about getting those claims denied!

Often enough, your humble blogger has talked about the effect of automation.  What is seldom discussed, however, is the response to automation by the current job holders.  What do the candle-makers do when some guy shows up slinging light bulbs?

Well, Los Angeles is showing us just what can happen when you threaten to make someone’s job obsolete.

A couple of weeks ago, the Los Angeles Board of Harbor Commissioners voted 3 to 2 to allow Maersk, a logistic company, to introduce driverless electric cargo handlers inside its facility.  The Los Angeles City Council voted to overrule the permit grant to Maersk last week, presumably under pressure from dock workers and the related union representatives.

So, of course, the City of Los Angeles offers the answer to jobs lost from automation: stagnation.  The result will naturally be for other ports, ones that allow 24-hour automated processing, to be far more attractive and collect the port fees associated thereto.

But the fact remains that this is the resistance that can be expected to movements towards automation – emotional, irrational, and, ultimately, futile.  The robots will carry us, kicking and screaming, into the future.  Assuming we can avoid a dystopia like that presented in The Matrix, we can all look forward to a future where a four-day weekend is the norm, because while we are camping, grilling, and enjoying a more relaxed life, the robots are working 24/7.

Till Monday, dear readers!