When your humble blogger was a child, knee-high to a grass hopper, his big brother watched a show called X-Files, in which FBI agents Mulder and Scully investigated paranormal and unusual cases, ranging from “monster of the week” to the main plot involving interstellar aliens.  I also watched this show and was a big fan.

The relatively recent re-boot also explores the paranormal, but it appears that the well for material is running low, and now the writers are shifting some of the attention to the “x-mod files.”  The FBI has issued a call for victims to come forward and report their circumstances related polices purchased from American Labor Alliance or any of its subsidiaries.

The FBI is claiming that ALA was engaged in various forms of fraud.  Back in 2016, the California Department of Insurance issued a Cease and Desist to American Labor Alliance/Agricultural Contracting Services Association, Inc.,/CompOne USA which called into question the validity of policies sold by those entities.

So, the stretch of a joke at the beginning of should be forgiven of course, but employers might benefit from verifying their policies are still valid.

As for the rest, perhaps a few California employers might find the policy they were relying on is not entirely valid, in which case the Uninsured Employers Benefit Trust Fund might find an uptick its workload.

Employers, especially in California, have it pretty hard all around – workers’ comp is expensive and the system is disruptive for day-to-day operations.  Meanwhile, some employers undercut their competitors by illegally operating without insurance altogether.

As if Scylla and Charybdis were not enough, employers trying to do the right thing and carrying workers’ compensation insurance might also have to be worried about being left without coverage if their workers’ compensation policies were not valid to begin with.

As per the FBI notice, potential victims should reach out by calling 1-800-CALL-FBI or e-mailing WCVictims@fbi.gov.

A slow-moving beast is Justice, dear readers.

So it seems with respect to doctor Gil Tepper, who recently plead guilty to two felony counts of billing fraud.  Apparently the not-so-good doctor sold marked-up items to his own practice, Miracle Mile Medical Center, from his own medical supply company, Metalink Distributors, Inc., and then billed insurance companies.

After his plea, he was ordered to pay $1.7 million in restitute, and is now permanently disqualified from participating in the comp system as a provider or operating any physician-owned medical supply distribution company.

Aside from restitution, he’ll have to complete 300 hours of community service and wear electronic monitoring devices for six months.

So, your humble blogger urges you to check your MPNs and that stack of liens to see if you might suddenly have a defense.  Additionally, your humble blogger also checked Lexis and… oh boy, the irony!

In 2014, the WCAB denied reconsideration when a defendant proceeded on this very theory.  Dr. Tepper and Miracle Mile Medical Center claimed the right to reimbursement for applicant’s back surgery in White v. Warner Bros. Studio Facilities.  Dr. Tepper, acting as treating physician, referred the applicant to Miracle Mile, his own facility.  The WCAB ultimately ruled that this sort of self-referral by Dr. Tepper was not prohibited by Labor Code section 139.3 because this was not an outpatient surgery.

Again, my dear readers, I hope you check your lien caseload and your MPNs, as another fraudster has bitten the bitter workers’ comp dust.

Hello there dear readers!

I want to wish you a very, very happy President’s day!  May you enjoy the big car sales, the blow-out clearances at the mall, and the general relief of a 3-day weekend.

It never ceases to amaze just how fast time flies – weren’t we just preparing to celebrate New Years’?  As the old saying goes: the days are long but the years are short.

Although initially this holiday was a celebration of George Washington’s birthday, in recent decades has been referred to as Presidents’ day, which presumably incorporates the birthdays of Honest Abe and the rest of the pantheon of commanders-in-chief.

This is not, by any means, to be confused with Precedents’ day, which is a day that celebrates the power or Stare Decisis.  I will leave to my readers to decide if Precedents’ day is observed in our beloved swamp.

In any case, enjoy your Monday off, dear readers, and we’ll see you back here on Wednesday for a fresh post.

If you ask an applicant attorney about the “going and coming rule,” 9 out of 10 will tell you “oh yeah, it means you’re going to find this claim compensable, and I’m coming for your money!”  Well, probably not, but, maybe after this blog post, they’ll start saying that.

The going and coming rule stands for the premise that employees engaged in their commute to or from work are not “working” yet, and so injuries sustained during the commute are not industrial (nor is harm done to third parties the liability of the employer via respondeat superior).

However, the exceptions are many to this rule, such that it’s barely a rule at all, but more of a notion.

That’s why it’s always so refreshing to see the rule used to bar a claim.  Such cases are the carrots seen in an ocean of sticks.  Thus, dear reader, your humble blogger respectfully submits for your consideration the case of Lapesarde v. State of California, Department of Corrections, which was recently denied review by the Court of Appeal.

Applicant, a nurse, was involved in an MVA while driving home from work.  Nonstarter, right?  Going and coming; coming and going; open and shut case.  Well, if that were so, what would I write a blog post about?

Applicant argued the claim was not barred by the going and coming rule because of the “special mission” doctrine.  That is, when an injured worker must go on a “special mission,” one that does not apply to the regular commute, the going and coming rule does not apply.  The special mission (should you chose to accept)?  Applicant worked his regular shift from 6am to 2pm, and then worked a second shift from 2pm to 10pm.  After this second shift, applicant spent 30 minutes in the car and drove home, stopping for gas and coffee so that he could stay awake for his 90 minute drive.  He woke up in the hospital after his MVA with no memory after that pit stop.

So, what do you think, dear readers?  Was the shift a “special mission” or was the regular commute but at an irregular time going home just your typical going and coming?

Well, the WCJ at the trial opined that the claim was compensable, and defendant appealed.  In addressing defendant’s petition for reconsideration, the WCAB panel considered the “special risk” rule, which “states that if a condition on or off the employer’s premises creates a special risk of harm to an employee who is about to enter or who has just left the premises, the injury is within the course of employment.”

However, the “special risk” theory was rejected by the WCAB because applicant made it to a gas station for a stop, and was not exposed to any risk that the general public did not face, a test that can defeat the “special risk” theory exception to the going and coming rule.

In reviewing the WCJ’s opinion, the WCAB specifically rejected reasoning that “applicant was fatigued when he left work and started his drive home.”  The WCAB’s reasoning instead turned on the fact that “applicant was driving on the road on his usual commute in his personal vehicle.  Nothing in that route that he drove or the conditions that he experienced was any different than any other driver on the road at that time.”

Based on this opinion, it would appear that being particularly tired from overtime does not defeat the going and coming rule by itself.  Nor does the change in time to an additional shift following a regular shift defeat the defense either.

Do you think the same result would be reached if applicant had some in for a second shift rather than stayed at work to do a second shift?  Would coming in for an irregular shift at the regular location have been enough to make this a “special mission”?  Are there any job duties that might make a worker particularly susceptible to a “special risk”, such that driving might be particularly dangerous as compared to the dangers visited on the public?

Let me know your thoughts dear readers – I have plenty of pennies to share.

Hello dear readers!

Heraclitus told us that no man ever steps into the same river twice.  Most assuredly, if Heraclitus were to witness California Workers’ Compensation practice over the span of a few years, he would have to explain further: “ok… but California Workers’ Comp is clearly not a river, it’s a swamp!”

Well, your humble blogger can confirm.  Same swamp, different day.

So I bring you the news of yet another public employee convicted of defrauding the workers’ compensation system.  Social Services Department employee Janice Richardson was convicted at the end of January of workers’ compensation insurance fraud.

Following an MVA in 2014 that was admitted AOE/COE, an application was filed and applicant received benefits.  She then “misrepresented facts as related to her physical abilities and limitations associated with her injury.”  She pled no contest back in 2018 and was sentenced last week to three years of probation, $1,000 fine and ordered to pay $27,500 in restitution to the county.

How many blog posts does your humble blogger have to write before we can finally stop seeing stories about public employees stealing from the public?  Always one more, it appears.

May this be a reminder to us to be ever vigilant against the fraudsters that plague our beloved swamp – and let us endeavor to make them famous for their misdeeds.

Welcome to February!

Alright dear readers! It’s that time!

I’m calling this future Friday because, well, why not?

Whip out your 2005 rating schedule and go to page 3-3.  You’ll see that at least one of the “baker” positions has occupational group 420 and another, the Baker Helper, has occupational group 460.

Dough brake machine operator on page 3-8 has 460 as well.

Making bread in the literal sense can be physically demanding job, and most of the occupational variants for 420 and 460 are pretty high up there.

In other words, if your applicant makes it into those occupation codes, odds are good your PD is going up.

The job itself lends itself to repetitive strain, lifting injuries, and occasionally burns.

Yikes – an expensive profession to insure for industrial injuries.

But your humble blogger isn’t worried.  To quote legendary anchorman Kent Brockman, “I, for one, welcome our [robot] overlords.”

InterestingEngineering has an article about BreadBot, a bread-baking robot that is touted as making a fresh loaf of bread every six minutes!  Touting as advantages its small demand for floor space and the fact that fresh bread needs fewer preservatives (and avoids the costs of paying for delivery of bread baked elsewhere), the real advantage from your humble blogger’s costs is the savings on the cost of labor.

Employees will still be necessary to refill the dry ingredients, but that work is not going to generate the high PD that actual bread baking does.

Foodandwine.com estimates the cost as “$100,000 over a five-year lease” which might not be a bad investment to replace the labor costs of a bakery department.

The future is coming to shrink the world of workers’ comp; are you [b]ready?

Have a good weekend, dear readers!

Hello there dear readers!

Your humble blogger sees that January is almost up, and in the blink of an eye, we’ll be in February.  Romance will be in the air for Valentine’s Day, and people who love turning the pages of their calendars will be thrilled to discover the shortest month is not extended by leap year this time around the sun.

But, while we’re still in the cold and rainy grasp of January, let’s talk about workers’ comp fraud!

Namely, I bring to your attention the story of one Edmundo Rocha, a “20-year veteran of the sheriff’s office” of San Mateo County who plead no contest to misdemeanor insurance fraud.  While on TD in 2016, he participated in a Spartan Race and was videotaped going over various obstacles.

Applicant was ordered to pay $5,000 in restitution which he did earlier this month.  He was also ordered to serve 10 days in jail.  According to this article, he has also resigned from the County’s employ.

As always, dear readers, your humble blogger asks: Quis custodiet ipsos custodies?  If a 20-year veteran of the Sheriff’s office cannot be trusted, and can surrender his honor so readily for some workers’ comp benefits, there are certainly larger implications.

May these events remind us to be ever vigilant – In San Francisco on February 3, Kaiser will be hosting its annual half-marathon run.  How many supposedly disabled applicants will be participating?

Happy Monday dear readers!

So much of our litigated workers’ compensation cases turn on the medical-legal exam.  Everyone knows that every single chiropractic QME will find every injury results in 100% PD and industrially caused, while every spine and orthopedic QME will issue a wash-out report.  There is nothing in between and no exception.  That’s why we spend so much time litigating panel issues, right?  (For those not in the know, this is pure sarcasm.)

Anywho, a lot of times the attorneys and adjusters have to speculate or rely on a QME’s report to imagine what went on during the exam.  How much time did the QME really spend with the injured worker?  Was applicant really exerting full effort?  What was said and what was asked?

Well earlier this year the WCAB issued a panel opinion in the matter of Rodriguez v. Waste Management Collection and Recycling.  Therein, applicant wanted to audio-record his QME examination with his phone, but the QME refused to proceed with the exam while being recorded.  After trial on this point, the WCJ ruled that applicant may, at his own expense, have a professional court reporter present to transcribe the examination, but could not simply record it on his phone.  Applicant sought reconsideration.

After the WCAB admonished applicant’s counsel (apparently for the second time) for citing an unpublished Court of Appeal decision, it ruled that pursuant to California Code of Civil Procedure section 2032.510, the examinee may “record stenographically or by audio technology any words spoken to or by the examinee during any phase of the examination.”  However, the WCAB did reject applicant’s claims that defendant must bear the cost for applicant’s desire to record the examination.

If I were a QME, and an applicant insisted on recording my examination with him or her, I might want to do the same, just in case someone gets it in his or her head to alter the audio record.

But, as the defense is always on my mind, what if defendant wanted to audio-record the examination.  Let’s same some cold-hearted defense attorney didn’t trust a particular QME and was concerned the exam wasn’t really happening, the QME was telling the injured worker what to say, or any other devious paranoid concerns.  Could the defense send a representative to audio-record and observe the examination?

Well 2032.510(a) allows for “that attorney’s representative … to attend and observe any physical examination conducted for discovery purposes, and to record stenographically or by audio technology any words spoken to or by the examinee during any phase of the examination.”   But that subparagraph is limited to “the attorney for the examinee or for a party producing the examinee…”  Can the defense be considered to be “producing” the injured worker for the QME exam?

Well, recall if you will the case of Porfirio Contreras v. Gibson Farms.  Therein, the WCAB concurred with the WCJ that when defendant deposes an injured worker, defendant is “producing” the witness for the deposition, and so Labor Code section 5811 allows the party “producing” the witness (in this case, the defendant) to choose the interpreter.

Can that be applied here?  Since defendant is paying for the transportation, the interpreter, and the PQME, can it be said defendant is “producing” applicant for the med-legal examination and is thus entitled to record the exam?

After all, 2032.510(a) allows for “the examinee” OR “a party producing the examinee” to record the examination.  Should the statute be interpreted to mean that the examinee means the applicant and the party producing the examine means the defendant?

I can tell you that there are plenty of times when I would have liked to be able to review exactly what was said, word for word, by the injured worker (and sometimes the QME).  There are some doctors out there that are shadier than a Sunglass Hut and your humble blogger would prefer to trust AND verify.

What do you think, dear readers?

Well, dear readers, at least we know that 2019 isn’t going to be ALL bad.

The decision in Fitzpatrick, which confirmed for us in a citeable decision by the Court of Appeal that the only ways to 100% PD is through the rateable impairment or presumption of permanent total disability under 4662 (and further foreclosed vocational rehabilitation as a way of reaching 100% PD) will not be disturbed by the California Supreme Court.

The Supreme Court not only rejected an appeal request, but also rejected a request to de-publish the decision.

What does that mean?  It means that 100% PD cases are now harder to get.  It confirms that the legislative (and judicial) intent is to put the kibosh on the voc-rehab-to-PTD route so favored by any applicant intent on early retirement.  It means your humble blogger is pleased – which, when we’re all being honest with each other, should be the end goal of everyone, right?

Anywho, dear readers, you have a wonderful weekend and come back Monday morning for some more of the same!

Good morning dear readers!

Your humble blogger was doing research on Workers’ Comp as he almost always does to help him fall asleep at night when I came across an article regarding barista wrist injuries.

To be fair, at first I misread the title and thought this was a report on workers comp barrister wrist injuries sustained while doing all that wrist wringing while litigating cases at the Board.  Halfway through the article I realized it was about common injuries sustained by coffee shop employees.  Well, in for a penny in for a pound.

Insurance Journal reports on a study performed by AmTrust insurance company which found that the most common injury for coffee shop employees was wrist injury related.  The study also found that the average wrist injury in a coffee shop employee resulted in almost one year off work!

This got me running numbers in my head immediately.  So if you are going to follow along, pop that Tylenol, down that scotch, and let’s begin.

In San Mateo, California (just as an example), the minimum wage is $15/hour.  So, let’s say your average coffee shop is trying to stay above minimum wage and pays its workers $16/hour.  $16 per hour times 2,000 hours/week equals an early salary of $32,000.  So, a year of TD at that rate is $21,333.

Add to that lifetime medical treatment (let’s remember between smartphones, typing and continued work as a barista these injuries do not get better with time).  Roughly speaking, let’s estimate $25,000 in medical treatment over the life of the claim, including carpal tunnel release surgeries, wrist guards, and perhaps even some chiropractic care.

Then let’s talk PD.  Estimating permanent disability due to loss of range of motion, perhaps an add-on for pain, and possibly grip loss, let’s assume 10% permanent disability on one wrist which is worth $8,772.50.  Finally, let’s assume there is a medical legal exam ($2,000) and generic claim administration costs.  So, again, speculating at costs, let’s just say that all goes smoothly and the insurer is out $60,000.

Now during that year that the barista was off work, the coffee shop had to pay someone else the same $32,000 a year to get the job done.  The employer still had to carry the costs of insurance, taxes, etc.  So with all those costs in mind, I cannot help by wonder if anyone has been to the Metreon recently in San Francisco?

“What’s with the non-sequitur?” you might ask.  The SF Metreon has a fully automated barista.  It does not take breaks, it does not get sick, and it does not charge overtime.  It does not file lawsuits against its employer for slights, real or imagined.  So while all the costs above are for a worker and his or her replacement for $8 hours/day 5 days/week, the automated barista will work whenever the shop is open – be it 8 hours or 18, Monday through Sunday.

According to this article, the CafeX (as just one example) costs $25,000.  That means for the cost of one wrist claim as speculated above, a coffee shop could have two robot baristas, and thus avoid the need for a Barrister (see what I did there?).

As average length of disability compounds with the growing cost of labor, how long before the terminator serves your next latte?