Happy Independence Day, dear readers!

Your humble blogger wishes you a happy day off, an injury-free fireworks evening, and the hope that you find a pocket of time to reflect on our nation’s great history and heritage.

As some of you know, I am a big history buff, and there’s a little known story of how the revolution REALLY started. 

Benjamin Franklin, George Washington, and King George were sitting down to hear the grievances of the Colonies.  A deal was reached and a peaceful resolution was set to go forward when the parties decided to conclude their working lunch.  King George ordered tea and Benjamin Franklin and George Washington ordered coffee, being Real ‘Mericans.  King George said “I think we have decaf, is that ok?”  And Benjamin Franklin said “yeah, that’s fine.  You go ahead and order decaf and General Washington and I are just going to declare independence.  How’s that?”

The deal fell apart and the rest, as they say, is history.

Some people refuse to accept this account, but be warned dear readers: those that refuse to learn history, real or very poorly imagined, are doomed to repeat it.

Happy independence day!

Hey there dear readers… quick question for you.  You didn’t happen to buy your workers’ compensation insurance from Wesley Owens or Beau Wilson?  These two… gentlemen… are alleged to have sold insurance policies to the tune of millions.  They gave out fraudulent certificates to various businesses and then paid off claims from the policies themselves (allegedly).

Once the scheme collapsed the gentlemen are claimed to have pocketed $60 million and left both injured workers and their victim-businesses in the cold without any insurance coverage.

Your humble blogger urges you to be wary of free advice, dear readers, but here is some for you in any case: check if that workers’ compensation policy is valid.  I have represented several (allegedly) uninsured employers and… well… if you think the deck is stacked against INSURED employers, wait till you see what it’s like when there’s no insurance company in your corner!

Applicant attorneys often cite the evil employers who operate without insurance, engage in wage theft, or operate unsafely.  Well employers, especially in California, are victims of fraud on two sides – from the fraudulent claims, whether as to mechanism or extent, ramping up their insurance rates, and from predatory agents selling phantom insurance policies and then leaving the employers exposed.

 Good luck dear readers – I hope your workers’ comp policy is a real one!

Guess what, dear readers? I’m baaaaack!  Thank you all for the kind e-mails and LinkedIn messages inquiring about my health and whether I would be returning.  Rest assured, dear readers, the reports of my death are greatly exaggerated.

Now, you might wonder what I’ve been doing all this time.  Well, I’ll gladly tell you.  As you will recall, towards the end of 2012, the California legislature passed SB-863 which, among other things limited increases in permanent disability as a result of compensable consequence psyche cases.  One exception to this limitation is, of course, catastrophic injuries which, much to the frustration of your humble blogger, remained undefined.

Well, I decided to set out on a quest to find the answer.  I swam across raging rivers, climbed up mossy mountains, and fought my way through swamps riddled with R.O.U.S.s, just to meet with a legendary wise man.  Observing the protocol of the area, I sat in his hut, cross-legged on the floor, until he acknowledged me and let me ask him one question.  So that’s what I did.

“Oh wise man” I asked, “how do we know when an injury is catastrophic in California’s workers’ compensation system.”

He looked at me for a moment and then sighed.  Then he told me something I will never forget: “Sir, this is my house.  You can’ just come in here and sit on my floor.  Also, what is workers’ compensation? Is that like employment law?”

Needless to say, the trip was not as productive as I hoped. 

To add insult to injury, when I returned from my travels, I learned that the WCAB had already addressed this issue in the en banc decision of Wilson v. Sate of Ca Cal Fire.

In Wilson, applicant was a firefighter who inhaled dangerous fumes and was hospitalized for two weeks.  Afterwards his condition deteriorated, and he started having seizures and needed more hospitalizations and treatment.  The claim itself was accepted by defendant denied the compensable consequence psyche claim.

The matter proceeded to trial and the WCJ sustained the denial of psyche, advising that this was not a catastrophic injury.  Facing the same problem visited upon judges with some frequency, including the U.S. Supreme Court, the WCJ noted that he would know catastrophic injury when he saw it, and this wasn’t it.

On appeal, the WCAB entertained several theories on defining catastrophic injury.  First, the WCAB noted that there was no violent act because this was fume inhalation, and not a “forceful blow.”  The WCAB also rejected the theory that this was pure psyche, as the medical-legal reporting opined the psychiatric injury was from the repeated hospitalization rather than the original mechanism.

Then the WCAB moved to determine whether this was catastrophic.  The defense proposed permanent total disability as the standard, but the WCAB rejected this theory because what would be the point in an increase in PD due to psyche if applicant was already at 100%?

The WCAB also rejected applicant’s theory that a catastrophic injury was measured by loss of some or all earning capacity.

Ultimately, the WCAB advanced a fact-based inquiry with various factors to consider:

1. Intensity/seriousness of treatment received for the injury;
2. Ultimate outcome when employee’s physical injury is P&S;
3. Severity of physical injury; impact on activities of daily living;
4. Whether physical injury is closely analogous to one of the injuries specified by the Labor Code (amputation, paralysis, etc.); and
5. If physical injury is an incurable and progressive disease.

In applying the factor to the Wilson case, the WCAB noted that the purpose in the reform was to weed out the automatic add-on psyche claims that were essentially frivolous.  We all know those applicant firms that always alleged psyche, sleep loss, and gastro-intestinal issues on EVERY SINGLE APPLICATION.

In this case, the WCAB did not consider it such a case, and applied the factors above to find a catastrophic injury, thus entitling him to a PD increase for psyche.

So now we have some guidance from the WCAB on identifying catastrophic injury, and we didn’t even have to go on a quest for it!

It’s nice to be back, dear readers.  I’ve missed you very much!

The workers’ comp system is a strange beast, dear readers.  So often we get interpretations of the law that are… well… unexpected.

Take, for example, a case recently reported on by Lexis, Fndkyan v. Opus One Labs.  Therein applicant demanded a SJDB voucher from defendant, which defendant declined to produce because the QME had not returned the Physician’s Return-to-Work & Voucher Report Form.

Defendant argued that as per section Labor Code section 4658.7(b)(1), the defendant has the right to offer regular, modified, or alternative work up to “60 days after receipt by the claims administrator of the first report received from either the primary treating physician, an agreed medical evaluator, or a qualified medical evaluator, in the form created by the administrative director…”

Defendant argued, of course, that if the QME did not provide the form, then the 60 day clock hasn’t started.  At trial, the WCJ agreed, and applicant sought reconsideration.

On recon, applicant argued that the burden shifts to the defendant to get the form filled out by the QME because the QME had already advised the defendant that applicant as permanent and stationary and had permanent work restrictions.

In reversing the WCJ, the panel relied on County of Kern v. T.C.E.F., for the proposal that “[t]o conclude otherwise would place form over substance.”

So, in other words, this panel held that if the QME advises defendant that applicant is permanent and stationary and has work restrictions, the defendant’s duty is now to get the form completed.  Did you notice that the 60 days to make an offer or provide a voucher coincides neatly with the 60 days a QME has to issue a supplemental report?  If the QME didn’t return the form the first time, and the employer asks for a supplemental, odds are it won’t be received in time to comply with the statute.

Labor Code section 5705 clearly notes that the “burden of proof rests upon the party … holding the affirmative of the issue.”  So if the applicant is claiming the affirmative of the right to a SJDB voucher, why isn’t the burden on the applicant to provide the form and seem it filled out?

As to the form over substance, let’s think back to Labor Code section 4658(d) which provided a 15% increase in permanent disability benefits if defendant failed to timely complete a Notice of Offer of Regular, Modified, or Alternative work form.  How often did defendants get stuck paying the 15% increase because the offer was made verbally or via a letter (and not the form)?  How often were defendants told “you have to use the form”?

Remember how the fact that applicant had returned to work at full wages was irrelevant if the employer didn’t fill out the form in time?

And that is just another example of the frustration many employers and insurers have with the system as is.  The difference in treatment and application of the law can give some employers the perception that the system really is rigged against them.  Form over substance was acceptable when the benefits flowed to the applicant; but if form over substance yields any advantage, however minor, to the defendant, then it’s a problem.

Recall please, the context – all applicant had to do was submit the form to the QME and then get the completed return-to-work form to defendant.  The effect of this panel decision is to penalize the defendant for not prosecuting applicant’s case.

What do you think, dear readers?  I know last week’s April Fools’ joke was just that, a joke, but where is the stopping point for shifting the burden onto defendants that a particular benefit is not due?

Howdy, howdy!  Are we still friends?  Did I manage to get any of you with my little April Fools prank on Monday?  I hope we’re all better now…

You know, dear readers, our workers’ compensation system is darn near perfect.  Really, it is! Stop laughing!!!

All joking aside, it’s no closely guarded secret that adjusters are often swamped handling files.  Huge caseloads require heroic efforts and the queue to respond to injured workers can sometimes get a bit long, and that’s without mentioning the defense attorneys that write Russian novels of analysis letters and talk the poor adjuster’s ears off… not that there’s anything wrong with that *ahem*.

Fortunately, that may all change soon!

A tech start-up ChronWell, is trying to bring a chatbot to market to help injured workers with basic tasks that don’t really need the skills of an experienced adjuster.

Scheduling appointments, appointment reminders, and answering basic questions and, presumably, escalating to a live person when necessary would be the key features.

If this effectively takes the load of adjusters then it’s a good thing, right?  Hopefully, though, this new wave of automated assistance will provide a better interaction experience than what your humble blogger has experienced when dealing with such software or automated phone calls.

It will be interesting to see how effective this software is in assisting workers with accessing the MPN and getting appointments.  In might also help defendants with documenting efforts to provide care in the face of MPN challenges.

Before you know it, the lawyers will be automated too.  But what, then, shall become of this poor, humble blogger?

Alrighty, dear readers, I know, I know – no one likes to walk into work on a Monday morning and be floored by such crazy news, but reports of the Supreme Court declining earlier Fitzpatrick challenges have been exaggerated, apparently.

Fitzpatrick, which was a 2018 Court of Appeal decision holding Labor Code section 4662 allows permanent total disability only through the combination of rating strings or through statutory presumptions, was a great victory for the defense.  No longer could applicants claim “well, man, you know… he’s like, pretty disabled, so let’s do the 100% thing, ok?”  Fitzpatrick required actual rating strings to 100% or the loss of both eyes, both hands, etc., as per Labor Code section 4662.

In January or so, the Supreme Court declined efforts by applicant attorneys to de-publish the Court of Appeal decision or to reverse it.

However… SOMETHING has happened and the Supreme Court issued a new opinion, made available online late Friday night.  You can read the text here, although there does not appear to be an explanation of procedural regularities that allow the Supreme Court to make such a sweeping change.

“We find that our prior ruling may have been made in haste. After further review, there can only be one, clear interpretation of Labor Code section 4662, when read in the context of the California Constitution’s requirement to provide substantial justice in all cases expeditiously.

That is, of course, that once an injury has been accepted or proven as industrial, an injured worker is presumed to be permanently and totally disabled.  The burden then shifts to the defendant to show that the effect of the injury is less than 100%.  This burden of rebuttal may be made by factual or medical evidence.”

Shockingly, the Supreme Court’s opinion appears to be unanimous.

This will certainly present opportunities to parties to challenge the constitutionality of this interpretation and the workers’ compensation system in general through arguments rooted in due process and precedent.

In the meantime, employers and insurers should take aggressive positions early on in cases to help rebut this statutory presumption of permanent total disability.  Aside from sub rosa and diligent discovery into past medical history, defendants should also careful research online for participation in any customs of yearly deception and hoaxes.

In the meantime, your humble blogger will tirelessly seek to rebut this presumption of total disability in all cases.  I trust you will join me in writing to the legislature so that the next reform package brings us back to the original Fitzpatrick holding.

Friendly reminder, dear readers, now that we’ve all had our fun and I have fielded a few e-mails and text messages cursing my name, and, in one instance, the proverbial horse upon which I rode in.  This is an April Fools’ prank by your humble blogger, trying valiantly to bring a little fun into our world of workers’ comp claims.  Until the next legislative session, at least, defendants are still afforded due process rights and applicant still carry the burden of proof as to the extent of permanent disability.  

Pop quiz, dear readers!  If you experience pain, what’s the first word that comes to mind?  If you said “ouchie” then… well… ok, a little childish but sure, you are correct.  If you said “Aachi!” as in… Venkat Aachi, M.D., well then you… are… WRONG.

Dr. Aachi, a San Jose area QME, has recently plead guilty to for unlawfully prescribing painkillers.  He distributed hydrocodone outside the scope of his “professional practice and without a legitimate medical need.”

So check your files right now dear readers – is he a PTP? Is he a QME? Time to start the process of getting a replacement.

While you are at it, why not check your MPN?  If Dr. Aachi’s name shows up it’s time to contact the MPN coordinator too.

Finally, there may be some outstanding bills for services rendered from Dr. Aachi as well.  I would respect some consideration be given to seeing those demands for payment through the lens of “the guy wanting me to pay him just plead guilty to a bunch of crimes and faces serious prison time.”

In the immortal words of Queen – another one bites the dust.

You know, dear readers, I like to think of myself as “still young.”  I’m hip and jive and cool and whatever else it is the kids are saying these days.  But somethings escape me, such as this “meme”:

Though factually accurate 1/7th of the time, the significance escapes me.  I guess your humble blogger really is falling behind.

Anyways, as the lovely frog above has pointed out, it is Wednesday [my dudes].  What better way to greet a Wednesday than a blog post about a voc rehab report failing to take a claim to 100%?

The case is, of course, Nieves v. City of Hayward.  Therein, applicant sustained an admitted injury in 2012, resulting in 47% PD based on the rating schedule and the AMA Guides.  However, applicant was not content with this result as he was seeking a finding of permanent total disability based on vocational rehabilitation evidence.

Applicant’s voc rehab expert found total loss of future earning capacity.  However, applicant had a prior injury back on 2001 which presented its own set of work restrictions.  The vocational rehabilitation evidence in this case combined both sets of restrictions (2001 injury AND 2012 injury).  The trial judge specifically rejected this approach as incorrect – “a rebuttal of the [PDRS] and a finding of [DFEC] in this case must be based on the medical restrictions in this case, not the combined restrictions from the 2001 and 2012 injuries” (emphasis in original).

Furthermore, because the vocational rehabilitation evidence failed to provide that applicant was not amenable to rehabilitation, the PDRS cannot be rebutted as per Dahl.  Presumably, this would mean that to rebut the PDRS, the vocational rehabilitation evidence would have to show that the immediate injury is sufficient to preclude vocational rehabilitation.

Of interest, the WCJ only ordered defendant to pay 50% of the vocational rehabilitation expert’s fee, reasoning that the time spent reviewing the records should be compensated but not the time spent writing a report that had no probative value in the case.

I think my beloved readers already know your humble blogger’s position on post 1/1/13 vocational rehabilitation evidence: you can rebut as much as you want a completely irrelevant fact since diminished future earning capacity is no longer a factor in determining permanent disability.

But for claims like this pre 1/1/13 injury, Dahl is being applied effectively and correctly – absent evidence that this injury (rather than all of applicant’s injuries and non-industrial conditions) precludes vocational rehabilitation, there’s no rebuttal of the PDRS.

It should be noted though that this was a SPLIT panel – one WCAB commissioner dissented, reasoning that the record conflicts with the summary of facts, and that applicant’s vocational rehabilitation expert did, in fact, find that all inability to work stemmed from the new injury.  The Dissent did not, however, address the issue of amenability to vocational rehabilitation.

Cheerio!

Hello there dear readers! It’s been a minute… did you miss me?

Your humble blogger was talking workers’ comp as he often does (and all the cool kids always do) when someone offered an opinion: Utilization Review denial of further treatment does not preclude a finding of temporary disability benefits.

Now, we all remember the Go [go Power Rangers] case, in which the WCAB affirmed a WCJ’s finding that benefits resulting from a self-procured surgery previously non-certified by UR are owing to an applicant.  Go cited Barela v. Leprino Foods which likewise held that a UR determination does not bar PD or TD, only liability for medical treatment.  When applicant Go self-procured surgery that resulted in an increased level of PD, the WCAB required defendant to pay up.

But let’s take another spin on this – what happens when applicant is permanent and stationary but for treatment “X”.  After all, section 9785(a)(8) defines “permanent and stationary status” as when an applicant’s “condition is well stabilized, and unlikely to change substantially in the next year with or without medical treatment.”

So… what happens when UR denies treatment “X”.  Is applicant P&S, because the condition is well stabilized for the next year at least?  Or, in the alternative, do the cases of Go and Barela stand for the proposition that applicant is entitled to TD benefits while awaiting a reversal of UR by internal appeal, IMR, or change of circumstances?

Well, one of the esteemed members of our workers’ compensation community provided me with a copy of the opinion in the case of Keltner v. California Guest Services.  Therein, Keltner sought reconsideration of a WCJ’s denial of TD benefits because the AME had determined applicant was permanent and stationary once UR denied lumbar surgery.

The WCAB majority affirmed the WCJ:

“The AMEs determination, that in the absence of surgery applicant had reached [P&S] constitutes substantial medical evidence … As the WCJ concluded, applicant’s condition meets the definition of permanent and stationary status, as there is no medical evidence that applicant’s condition is likely to substantially improve in the near future under his current medical treatment.  Since the UR/IMR determination disallowing surgery is final for one year, in the absence of changed circumstances, there is no basis to award continuing [TTD].”

The dissent would have issued an order to develop the record.

So, based on Keltner, if the sole reason for applicant’s status is the denial of medical treatment, applicant is likely NOT entitled to TTD.

But what do you do if you can’t get your medical-legal evaluator to commit?  What if your PTP or your QME says “well, until the injured worker gets that surgery, I’m going to keep him on TD, so there!”

Well, I would submit that Labor Code section 5705 holds that “[t]he burden of proof rests upon the party … holding the affirmative of the issue.”  So if a party is claiming TD, wouldn’t the burden fall upon that party to show that applicant’s condition is likely to change in the next year?

Happy Monday, dear readers!

Ok, dear readers, tell me something – are you seeing more cases where applicant attorneys start fighting subpoenas for prior records?

I am seeing them now and again, and besides being annoying they appear completely unfounded – if you want privacy the last place you go is before the WCAB to claim an industrial injury.   But that’s what applicant’s ultimate goal appeared to be in the case of Collins v. City of Vacaville, a recent case in which the WCAB rejected applicant’s challenge to defendant’s subpoena.

Defendant engaged in discovery by subpoenaing applicant’s employment records from his prior employers.  In the instant case, applicant worked as a law enforcement officer for various cities and his current employer sought records from his prior employers.  Applicant objected, filing a petition to quash the subpoena on the basis that Evidence Code sections 1043-1046 and Penal Code sections 832.7 and 832.8 provide special procedures for obtaining police officer records.  The WCJ on the case granted the petition.

Penal Code sections 832.7-832.8 requires compliance with the evidence code to produce personnel records of peace officers, and sections 1043-1046 require additional affidavits and supporting documentation to obtain copies of these personnel records.

The WCAB granted removal, reasoning that the Legislature did not intend to apply Evidence Code sections 1043-1046 to “routines personnel records of an applicant ho has filed a workers’ compensation claim.”  Examining the legislative history, the WCAB notes that the Supreme Court’s decision in the case of Pitchess v. Superior Court, holding that criminal defendants have a right to know if the officers involved in their cases have a history of misconduct complaints, prompted the legislature to enact PC 832.7-832.8 to protect officers from harassment.

Prior cases law involves rejecting similar arguments to a police officer seeking to protect his earnings history during his divorce proceedings.

The WCAB ruled that “compliance with Evidence Code sections 1043 through 1046 is not required in circumstances such as these…”  However, the panel tempered this ruling by advising that the WCJ may still determine whether the subpoena is overbroad, unclear, burdensome or otherwise inappropriate.

Understandably, we all get mired down in the trees of our beloved workers’ compensation swamp, but let’s take a brief moment to look at the trees.  What possible reason would an applicant have for interfering with an employer’s discovery of prior personnel records?  What is applicant afraid will be found?

Well, if it’s a bunch of routines health exams showing he was in perfect health prior to working for defendant, wouldn’t he be eager to disclose those?  Just a thought, dear readers.

In any case, what rationale is offered for this so-called right to privacy in a workers’ comp proceeding?  One does not get leniency in being sentenced for the murder of one’s parents on account of being an orphan.  The best way to maintain one’s privacy is to refrain from making workers’ compensation claims that turn directly on medical and employment history.

The Collins case dealt with yet another argument applicants are making to avoid disclosing their history.  Hopefully, the makings of this trend in obstructing the basic discovery to which defendants are entitled will die on the vine.