Hello my beloved readers!

Your humble blogger has missed you terribly, and my typical musings which would find their way to this most humble of blogs have been trapped inside me instead of late.

Although the plan is to make a glorious return and start polluting your inboxes in 2019, I could not resist the urge to come back just briefly and wish you all a very merry Christmas.

May your trees be merciful and sparing to your carpets, may your unwanted gifts be easy to return, and, for my Jewish readers, may the Chinese food not make you hungry again an hour later.

From the bottom of my cold, dark, defense-attorney heart, Merry Christmas, one and all!

Alright, readers, it is Friday again!  We all spend our Fridays in different ways.  For some of us it means a quiet dinner at home, and for others it means going out and enjoying some of the charms of living in 2018.

Well, a lot of folks get around by motor vehicle, but after consuming various beverages are in no condition to drive back, so up comes a taxi, Uber of Lyft to get us home safely.

Well, next year, Daimler will be offering free robot taxi rides to passengers in the Peninsula near San Francisco and San Jose.  Waymo has been offering similar services in Arizona for a while now.

The question of whether you would take a ride from a self-driving car is becoming more and more of a real one.  Would you feel safe taking such a ride?  What if it was significantly cheaper?  What if it was statistically safer?

Well, your humble blogger predicts the following sequence of events: self-driving cars will prove safe and reliable and will become the norm; human professional drivers will find their jobs reduced or eliminated by automation; a flood of cumulative trauma claims will be filed by recently laid-off drivers; your humble blogger’s job will be secure for another decade or so until an automated lawyer is produced; the T-800 begins hunting for John Connor.

And no, dear readers, your humble blogger respectfully submits that there’s nothing wrong with the Governator having to go through the workers’ compensation system that he reformed.

All kidding aside, there is a huge sector of the economy that is directly or indirectly related to professional drivers.  From providing transportation to passengers in smaller vehicles such as taxis and Uber/Lyft rides, to driving busses with dozens of passengers or bigger trucks with cargo.

These drivers are paid a good chunk of money and spend money in the process of doing their jobs – refueling their cars, refueling their bellies, patronizing hotels, etc.  How will California’s economy look when a self-driving car (that likely recharges an electric battery rather than a gas tank) does all those jobs without the need for food, breaks, or sleeping quarters?

Just something to consider as you enjoy your libations this Friday night, dear readers!

Happy Wednesday, dear readers!

I report to you today that it appears “Almaraz/Guzman” has achieved status as a magic phrase.  It need only be uttered or hinted at, and all the rules (and laws) that would otherwise apply appear to go out the window.

The case I make reference to is Case v. Golden Gate Bridge Highway and Transportation District, and the facts are ones we see all too often.

The AME offered a rating to the bilateral shoulders, as claimed by applicant, using range of motion and grip strength.  The range of motion WPI assigned was 2% for one shoulder and 3% for the other, but also found that the particular diagnosis, bilateral metatarsalgia, doesn’t qualify for an impairment rating under the AMA Guides.  He then cited Almaraz/Guzman to justify assigning WPI for loss of grip strength as well.  This inflated applicants WPI for each shoulder to 12%!

At trial the WCJ rejected the AME’s Almaraz/Guzman opinion as not being substantial evidence.  The WCJ’s reasoning was that the AME failed to explain why the “strict” rating of impairment was inaccurate or insufficient.  The WCJ further rejected the AME’s opinions because his reliance on the use of grip loss was inappropriate given applicant’s age.  The AMA Guides did not provide data for average grip strength for persons over the age of 60, and applicant was 62 at the time of the examination.

The WCAB, interpreting the WCJ’s opinion as only allowing for an Almaraz-Guzman rating if a case is complex or extraordinary, reversed.  The WCAB also rejected the reasoning that because there was no data for WPI in patients over 59 years of age, the statistics for a younger injured worker could be used instead.  The WCAB denied review.

So let’s look at this matter: the AME gives a rating under the AMA guides, says “hocus pocus” “Almaraz/Guzman” and can now offer an alternative rating.  The WCJ notes that not only did the AME fail to explain why the AMA rating is wrong, but that the AME used data for the wrong age group.

The Labor Code, section 4660.1, tells us that the AMA Guides are prima facie evidence of the level of impairment.  Since Labor Code section 5705 tells us that the burden lies with the party seeking to prove the affirmative of the issue, shouldn’t the applicant have to bear the burden of rebutting the AMA Guides rating and invoking Almaraz/Guzman?

If that is so, what is wrong with the WCJ finding that the applicant failed to carry that burden?  If the AME did not adequately describe why the AMA Guides, “as is”, were insufficient, why allow the A/G rating to control?

Hopefully, in the inevitable reforms that will come in the next few years, the uncertainty and litigation caused by the progeny of Almaraz/Guzman can be reined in with legislation, much like Ogilvie became limited to pre-2013 injuries (at least, in your humble blogger’s opinion).

Hello there, dear readers, and happy Monday!

Your humble blogger has been out traveling lately and so has been more slacker than humble, but returns to you again, tapping once more that endless font of forgiveness and grace that allows me to continue to infect your inboxes with my misguided and ill-informed rants.

Today, however, I would like to draw your attention to something other than, and even more than, workers’ compensation.

Today I join in the chorus to thank veterans for their service and sacrifice.  Aside from recognizing this particular day, yesterday, November 11, 2018, saw the 100 year commemoration of Armistice Day, the end of World War I.

On June 28, 1914, Archduke Franz Ferdinand’s driver took a wrong turn and, as he stopped to back his car up and resume the correct route, Gavrilo Princip, a Yugoslav nationalist, stepped forward and fatally shot the Archduke.

What followed was a series of interlocking alliances and balance-of-power theory leading to all-out war and ending on November 11, 1918 with an estimated 40 million dead.

What horrid consequences can follow the smallest of events.

Take time, dear readers, to thank veterans where you can and remember those who are not around to receive your thanks.  Tomorrow, we will all resume our regular toils of arguing over vouchers and litigating whether the TTD rate should be $323 or $343 per week.   I promise you – those disputes are not going anywhere.

Also, for the folks keeping score at home, just a friendly reminder that today is a Court holiday.

It’s no secret, dear readers, that your humble blogger enjoys hearing about the march towards automation.  Technology trends towards making jobs safer, products cheaper, and allows for the refocusing of labor towards other ends.

Humans have limitations that machines can avoid, allowing for more productive hours in a day at a lower cost and without the risk of injury visited on human workers.

Farm labor is no exception.  The DIR regularly gives reminders and warnings to agricultural employers about the dangers of heat and dehydration.  Heat stroke, skin cancer, and a variety of orthopedic injuries from twisted ankles to ruined backs await the workers toiling on most of California’s square miles.

So meet Iron Ox, a California company that has launched America’s first autonomous robot farm.  The robot farm grows plants, monitors them for pests and disease, and then performs the harvest.  The space saving is intense too – 30 acres of real farming is supposedly equivalent to 1 acre of robo-farming.

So, what does that mean for us in California?  For the next few weeks (or months or years) probably not much.  But if this catches on, the company can produce more food with less: less space, less labor, less overhead.

How will a farm’s experience modification for its insurance rates change when it goes from having 200 season and/or regular agricultural employees to 15 engineers and technicians to monitor the machines and keep them running?

How will this shiny robotic future impact California’s next legislative reform?

Although California, unlike Texas and Oklahoma, won’t let employers opt out of the workers’ compensation system, technological advances are allowing employers to carve their own opt out – fewer workers and fewer injuries.

I, for one, welcome our robotic overlords, dear readers.  How about you?

Happy Monday, dear readers!

Your humble blogger hopes the weekend was kind to you.  I know a lot of us were watching with amazement the doings in Washington and the seating of our newest Supreme Court Justice.  Since the musings of California Workers’ Compensation rarely get reviewed by SCOTUS, I’ll reserve my comments and thoughts on the last few weeks for another forum (most likely muttering and winning arguments with myself in the shower).

Frankly, dear readers, I’m still a little hurt that your humble blogger was not considered for the position – the words “Justice” and “Grinberg” are practically interchangeable, so how could one go wrong with “Justice Grinberg.”

But, today’s posting focuses on California workers’ compensation (which, as it happens, is the purpose of this blog, after all!)

I bring to my beloved readers a story making the rounds, that of Sam Solakyan.  Mr. Solakyan operated MRI facilities in both Northern and Southern California.  As alleged, Vital Imaging, San Diego MRI Institute, Global Holdings LLC, Empire Radiology, Access Integrated Healthcare, AIH Imaging, Access Imaging, Paramount Management Services and Capital Edge Holdings are all entities under his control.

Mr. Solakyan was indicted by a federal grand jury based on allegations he paid physicians to refer patients for MRIs at his facilities.  If allegations are to be believed as fact, that Mr. Solakyan may have billed as much as $284 million for services obtained in this fashion.

Now, some of my readers, especially that have medical service liens pending before the WCAB, might be asking “so what’s the big deal?” After all, patients need MRIs, what does it matter who performs the MRIs?  If the insurers didn’t pay Mr. Solakyan, then they would have paid someone else.

Well, aside from the fact that it is illegal to bribe doctors for referrals, the logic only holds if the injured worker would have needed an MRI anyway.  However, assuming the allegations are true, Mr. Solakyan’s payments to various physicians would have, presumably, induced them to recommend MRIs that were not necessary.  That’s money spent by defendants that shouldn’t have been.

It’s important to recall that Mr. Solakyan has not been convicted, so there’s no reason to assume that he necessarily will be.  That being said, if you’ve got a lien from any of the outfits listed above, you may consider investigating further if this was a legitimate service or the product of an RFA induced by the promise of a bribe.

Onward and upward, dear readers!

Happy Wednesday, dear readers!

It appears your humble blogger was misinformed with his post from last Friday.  Mr. Juan Pedro Gaffney, now, Commissioner Gaffney was confirmed by the senate on August 29, 2018, with 25 Ayes and 11 Noes.

Commissioner Gaffney will now serve for a term of six years.

That being said, I now bring you today’s blog post which will hopefully distract you from your humble blogger’s most embarrassing misstep…

Since it’s Wednesday, dear readers, I’ve decided I will grant you most dearly held wish.

For those of you tuning in from outside the swamp that is our beloved workers’ compensation system, I’m going to let you in on a little secret.  If you work your way into the confidence of any member of California Comp, and you offer him or her three wishes, without missing a beat each would tell you honestly: “If I had three wishes, I would wish for three blog posts on the going and coming rule.”

Well, your humble blogger lives to please, so here we go!

As is well known, the going and coming rule is one that applies inside and outside of workers’ comp: if you’re on your way to work or coming home from work, injuries sustained during the commute are not considered “industrial” and are not compensable.  Nor is damage caused to third parties by employees during the commute to or from work triggering of the doctrine of respondent superior.

That being said, there are more exceptions to this rule than reasons to use cast iron skillets (as opposed to, let us say, more pedestrian cooking methods, such as Teflon or stainless steel).

So, today’s blog post is about one of those times when none of the exceptions applied.  Raquedan v. WCAB, a writ denied case, was decided earlier in September, denying review of the WCAB’s decision to affirm a WCJ’s take nothing order.

Decedent’s widow sought death benefits after her husband was killed in an MVA returning to work from a lunch break he had taken at home.  Decedent worked as an accountant and sometimes took work home with him while he ate lunch at home.  The WCJ found the claim to be barred by the going and coming rule, but applicant appealed arguing that the “personal comfort” and “dual purpose” exceptions, one or both of them, should have rendered the claim compensable.

The WCAB disagreed.  The personal comfort doctrine might make a commuting injury compensable if applicant was rendering a service to his employer.  However, as the lunches were unpaid and applicant could have eaten lunch at work, and it would have been all the same to the employer, the exception did not apply.

With respect to the “dual purpose” exception, the WCAB was not convinced either.  But the only element of “work” in applicant going out for lunch was that the decedent sometimes worked at home.  But working at home for the pure convenience of the employee is insufficient to trigger the dual purpose exception.

The Court of Appeal denied review of the WCAB’s decision.

One of the key pieces to take away from this is that the employer-provided testimony that there was no work that applicant needed to do at home – all work could be done in the office.  Many employers allow their employees to occasionally work from home as a matter of convenience to them.  It would be very disappointing if cases like this went the other way, and employers realized they shouldn’t offer the option to their workers lest they become general insurers for all injuries that occur at or away from work.

Onward to Friday, dear readers!

Hello dear readers!

Your humble blogger has for you today, this Friday, a call to action of sorts.

As many of you know, in June, Governor Brown appointed a personal friend, Mr. Juan Pedro Gaffney, as a commissioner to the WCAB.  Although I know nothing of Mr. Gaffney personally, what I understand from my research is that he has no experience in law, drafting or interpreting legislation, or the workings of California’s Workers’ Compensation System.

As much as I regularly disagree with the reasoning or conclusions of workers’ compensation Judges or WCAB Commissioners, this is something else.  I have written to my state senator, Jerry Hill, asking him to oppose confirmation of Mr. Gaffney.  I have also provided the text of my letter below, if any of my readers should be inclined to do the same.

You can find your elected representatives using this link, and you are more than welcome to plagiarise my letter if you feel so inclined.

If your humble blogger has completely missed the mark, please feel free to post a comment on why Mr. Gaffney would make a good WCAB commissioner.

Have a good weekend, dear readers!

“Senator Jerry Hill

1528 S. El Camino Real, Ste. 303

San Mateo, CA 94402

re: Mr. Juan Pedro Gaffney’s Appointment to WCAB

Dear Senator Hill,

I am writing to you as one of your constituents, but also a member of the California State Bar and a practicing workers’ compensation attorney.  The purpose of this letter is to urge you to oppose the confirmation of Mr. Juan Pedro Gaffney for the Workers’ Compensation Appeals Board.

On June 22, 2018, Governor Brown announced he was nominating his personal friend, Mr. Gaffney, to serve on the Workers’ Compensation Appeals Board.  Mr. Gaffney, to my understanding, has no legal training or experience, is not a member of the State Bar of California, and, as far as I can tell, has no experience in California Workers’ Compensation law.  His presence on the commission, reviewing the decisions of workers’ compensation Judges, could cause serious harm to both employers and employees given his lack on legal training and experience.

The Commissioners routinely review appeals based upon legal disputes. Current and past commissioners have provided a wealth of experience and familiarity with workers’ compensation issues.  They have brought to bear their experience as litigators or working on legislation, often both.

Many members of the worker’s compensation community have represented both employers and injured workers, giving them keen insight into the concerns both parties have. Mr. Gaffney, as a commissioner, would serve to create more litigation and appeals, delaying the process providing financial and medical support to injured workers and delaying justice for employer and employee alike.

Although California does not prohibit the appointment of non-attorney members to the Workers’ Compensation Appeals Board, there are several valid choices which Governor Brown can consider. Governor Brown recently appointed a non-practicing lawyer, with no experience with Workers’ Compensation law. If appointing a non-attorney commissioner at this time is warranted consideration should be given to persons that have some experience in the workers’ compensation area. California has a wealth of such candidates who are familiar enough with the system to make sound and supported decisions.

Simply put, Mr. Gaffney lacks experience and legal qualifications. The appointment of commissioners as members of the Workers Compensation Appeals Board should be made on qualifications, not on friendship or other personal reasons.

For the foregoing reasons, I respectfully ask that you oppose Mr. Gaffney’s appointment to the Workers’ Compensation Appeals Board.”

Happy Wednesday, dear readers!

It is no secret in the workers’ compensation community that defendants generally dislike and disapprove of chiropractors, whether as primary treating physicians or as QMEs.  One of the tenets of the cult of the defense attorney is that chiropractors will prolong TD, inflate PD, and drag out a case with unnecessary referrals and treatment.

Obviously, there are lots of chiropractors and the practice is not all that monolithic.  I know a chiropractor or two that I recommend as AME in my cases and know that I will get a report just disappointing enough so that both parties can settle and close the file.  A closed file is a happy file, no?

But, seeing as it is October and Halloween is coming towards faster than a recently fired and disgruntled employee to an applicant attorney’s office, let’s engage in some spooky fear mongering.

According to an article from the University of Michigan, “forceful manipulation of the neck is linked to a damaging side effect: vision problems and bleeding inside the eye.”

The article quotes Yannis Paulus, M.D., of the U. of Michigan Kellogg Eye Center, a 59-year-old woman experienced a “tadpole” shaped spot in her vision after a chiropractic visit which worsened over time, but ultimately resolved.

Aside from vision problems, some physicians have warned of the risks of certain types of stroke, and a warning from the American Heart Association.

Both the article from University of Michigan and the AMA warning state that the likelihood of cervical manipulation causing stroke or eye loss is low, but both also urged patients and chiropractors to be aware of the risk.

So, if you’re looking for a spooky story to tell at the Board, you can claim that stepping foot in a chiropractor’s office will absolutely result in stroke and blindness (and, come to think of it, if the injured worker received chiropractic care and isn’t blind/suffering a stroke, doesn’t that mean that he or she didn’t REALLY attend the appointment?)

In any case, if you do have an overlap of loss of eyesight or stroke as a compensable consequence, chiropractic care might be one avenue of causation to explore.  Since both articles also mention the potential for reverse causation, it opens the door to exploring whether the need for chiropractic care is caused by an industrial injury or non-industrial loss of eyesight/stroke.

Fun times, dear readers!  Now, who is going to go trick-or-treating as a chiropractor this year?  Every defendant will be certifiably spooked.

Hello dear readers!

A happy Monday to you indeed, as the good news keeps on coming.

Earlier last week, Governor Brown issued a veto for AB479.  As my beloved readers will recall, AB479 would have created more instruction for rating impairment related to breast cancer and redlined various factors that could have been considered for apportionment.

Governor Brown vetoed AB479, calling for more empirical research and offered some questions for consideration:

1. Do the standards for determining impairment due to occupational injury or illness accurately reflect the level of impairment caused by industrial cancer?
2. Study and compare the differences between the fifth and sixth editions of the AMA Guides with respect to determining impairment resulting from industrial cancer.
3. Do the standards for determining impairment resulting from industrial cancer exhibit bias based on immutable characteristics such as gender, race, or ethnicity?

For now, at least, it looks like the status quo will hold.  But, that being said, Governor Brown’s time in office is limited.  Will the next Governor continue to veto such bills?

Only time will tell, dear readers!

In the meantime, today marks the start of what is now being referred to colloquially as “spooky month” which will be followed by “turkey month” before we finally arrive at “Santa month.”  So happy ghost-turkey-santa?  The cultural norms of month nomenclature falls well outside the scope of my expertise, so I defer to you.