Hello there, dear readers!

Your humble blogger’s bow tie just spins in excitement when he has good news to deliver, and today is one of those days.

The Court of Appeal has issued a PUBLISHED decision in the case of Fitzpatrick v. Department of Corrections and Rehabilitation.

The facts are pretty simple: applicant sustained an injury to the heart/circulation rating to 97% PD to the psyche rating to 71% PD.  The two combined would equate to 99% PD, but applicant wanted 100%.  The injury was a CT through the end of 2011.

Well, the WCJ gave him exactly that, reasoning that under Labor Code section 4662(b), applicant was permanently disabled “in accordance with the fact”.

Defendant argued that there are only two ways to reach permanent total disability.  The first is under Labor Code section 4060 and 4060.1 (for post 1/1/13 injuries), the second is through one of four types of injuries, as exhaustively described in Labor Code section 4662(a)(1)-(4): loss of both eyes/sight; loss of both hands/use; injury resulting in practically total paralysis; or brain injury resulting in permanent mental incapacity.

Since applicant was not in one of those four categories, and the PD did not combine up to 100%, there could not be permanent total disability.

The WCAB adopted the WCJ’s reasoning, and on it went to the Court of Appeal.

But the Court of Appeal wasn’t having it!

The Court of Appeal reasoned that 4662(b) does not explain how permanent total disability is to be reached “in accordance with the fact” if the injury does not fall into one of the four categories listed.  Instead, the way to reach permanent total disability is through adding up the impairments, rated out, to reach 100%.

Now comes the fun part!

Labor Code section 4660.1(g) provides that 4660.1 (which was added to the Labor Code as part of SB-863) shall not preclude a finding of permanent total disability in accordance with 4662.  Some of our esteemed community members have taken the position that despite the elimination of the DFEC, this allows a finding of permanent total disability using a vocational rehabilitation report, as that would be “in accordance with the fact.”

However, now we see that the Court of Appeal has closed off this argument for post 1/1/13 injuries: if 4662(b) only allows a finding of permanent total disability based on permanent impairment, and 4660.1 does not include consideration of vocational rehabilitation, then aren’t we bolstered in the argument that vocational rehab, as rebutting the PDRS, is dead?

Anywho, between the news of King and this case, it’s looking pretty good and that’s reason to celebrate.

Have a great weekend, dear readers!

Your humble blogger doesn’t have the best hearing in the world.  Sometimes, it seems like I can hear the vague whispers of “Bubble Blogger is a Frog” only to discover, upon closer inspection, that the uninformed are actually whisper “Humble Blogger is a Fraud”.

I will let you in on a little secret, dear readers, so long as you promise to keep it between us (and literally anyone who reads this publication).

I’m not thaaaaat humble.  To quote Golda Meir – “don’t be humble… you’re not that great.”

In any case, although your humble blogger may not be as humble as he humbly declares (I can hear you now, muttering “stop saying ‘humble’!”) at least I’m not a workers’ compensation fraud!

The same cannot be said for 33-year-old nursing assistant Holly Miller, who was recently sentenced to 3 years of probation and ordered to pay over $8k in restitution. 

According to the above-linked Sacramento District Attorney’s press release, convict Miller alleged an injury to her wrist, sustained (as claimed) when a patient grabbed her hand and twisted and jerked it repeatedly.

After her employer Sutter arranged for sub rosa, video was obtained showing her using the “injured” hand and wrist without limitation or pain.

Miller pled no contest to misdemeanor fraud.

WCDefenseCA tips its hat to the good folks at the Sacramento County District Attorney’s office and DDA John MacKenzie for a job well done in bringing this file to completion.  Your humble blogger once had the privilege of walking the halls of the Sacramento DA’s office as a law student and remembers fondly those days of furthering justice.

Often enough, applicant attorneys will start flapping their proverbial wings and hyperventilating if an applicant is asked, during a deposition or on cross-examination, if he or she has ever been convicted of a misdemeanor, which Ms. Miller most certainly has.  This fact is especially relevant if the misdemeanor had to do with fraud, deceit, or dishonesty.  BUT, it is important to remember that so many of the legal and medical conclusions are rooted in the presumption that the person relaying the basic facts is telling the truth.

We don’t call people liars without basis.  Well, when you have a misdemeanor conviction for lying there’s a basis.  And it’s a weak argument indeed to say “well Jane Doe lied about how she was hurt, but she’s not lying about HOW MUCH it hurts!”

Congratulations to the Sacramento District Attorney for a job well done!

Good morning dear readers!

Your humble blogger certainly missed you and sincerely apologizes for his absence.  Were you totally and hopelessly lost without me?  Have my years of diligent posts made you strong and resilient?  Or, maybe… just maybe… you didn’t notice my absence because these posts are ending up in your spam file…?

Anywho, I wanted to take some time to digest the California Supreme Court’s ruling in the matter of King.  You know the one… that case everyone has been discussing lately?  In case you think you’ve been overhearing a whole lot of checkers games lately (“King me!”) you haven’t.

The California Supreme Court, with a drop of the gavel and a stylish twirling of black robes, has crushed the hopes of many an applicant attorneys.  With one foul swoop, visions of vacation homes and eerily silent and inexcusably awesome electric cars vanished as SCOC (Supreme Court of California for those of you not hip to the lingo of the “cool” lawyers) ruled that not only does a Utilization Review doctor not owe a duty of care to an applicant, any harm resulting from Utilization Review fallout is confined to the workers’ comp system we all know and love.

So, with that in mind, let me set the stage for you as I relate this King of all blogposts (see what I did there?).

Mr. King had an accepted industrial injury for which he was receiving treatment.  His treating physician prescribed Klonopin among other drugs.  However, when this treatment was re-requested in July of 2013, some 2 years after the initial injury, UR denied it without providing a tapering program or advising of the effects of a “cold turkey” approach to ceasing its use.

To quote the ever-quotable Homer Simpson, “going cold turkey isn’t as delicious as it sounds.”

The sudden cut-off resulted in Mr. King suffering 4 seizures. A new request for the same in September of 2013 was also denied by Utilization Review.  About a year later, applicant and his wife filed suit against the UR physicians and the defendant.  The claims were tort and in civil court (which, from personal experience, appears misnamed, as it is hardly ever civil, unlike this gentlemen’s arena we call Workers’ Comp).

While the Trial Court ruled that applicant’s complaints are limited to the world of workers’ compensation, the Court of Appeal reversed, finding that while most of the claim was confined to comp, the failure to warn might not be, giving Mr. and Mrs. King leave to amend, which the defendants appealed, placing their fate in the hands of the mighty SCOC.

In the majority opinion, the SCOC ruled that Labor Code section 3602(a) provides that workers’ compensation is the exclusive remedy against an employer for workers’ compensation injury.  Not only that, authority was cited for extending this exclusive remedy liberally to just about anything tangentially related to workers comp: if the case involves a claim of injury by an employee against an employer, it’s probably going to be stranded on Workers’ Compensation Island (if you’ve never been, imagine an island of regret in a sea of spite, drizzled with the foliage of Kafka trees…)

To quote SCOC, an injury linked “in some fashion” to employment triggers exclusivity.  Thus, because the injuries alleged by the Kings “are derivative of a compensable workplace injury, their claims fall within the scope of the [WC] bargain and are therefore compensable within the workers’ compensation system.”

So… victory? Should defendants celebrate?  N so fast!  What SCOC gives with one hand, it takes away with the other.  SCOC held that “employers are ultimately responsible for paying benefits to workers who suffer injuries as a result of the utilization review process.”

What?!?  That’s right!  SCOC seems to hold that an injury resulting from the utilization review process might be a compensable consequence of the underlying injury.  So what are we talking about here?  A paper cut while opening the envelope with the UR denial?  A back sprain while picking up the heavy letter of UR non-certification?

What has applicant attorneys jumping for joy right now is that, in theory, if an applicant can tie a worsening of his or her condition to a UR denial, presumably that worsening is a compensable consequence.

But, your humble blogger would like to point this out to his beloved readers: this is not the first time this issue has come up.  The WCAB panel suggested, in McCool v. Monterey Bay that UR denial of drugs without a weaning program may result in administrative penalties.  There, UR had cut off an applicant from a particular drug without a weaning program.

Though the employer ultimately agreed to a weaning program, the WCAB advised, in dicta, that even Dubon would not save a defendant from administrative investigation if it cast a blind eye towards the very likely consequences of a UR determination.  (And yes, I did quote Homer Simpson in that blog post as well, but who could resist such a quotable character?).

So, what do we take away from this, dear readers?

No doubt, each of us will take our own lessons from the King case, and the opinion will be cited every which way by practitioners for years to come.  Your humble blogger can only submit this advice: as difficult and time-consuming as it may be, avoid “auto-pilot.”  The UR physician may, in haste and with a sense of urgency, issue a report on the status of the tree, but the adjuster must not lose sight of the forest.  Although UR may provide a basis for a denial, the claims examiner should use this as leverage to get to a reasonable result.

But, then again, dear readers, beware of free advice – often times there can be nothing more expensive!

Happy Monday, dear readers!

Your humble blogger is busy as always, helping benefits find their true identity: denied.

But, it is understandable that many of you on the other side of the computer screen aren’t today.  After all, Labor Day comes upon is just once a year, and this celebration of the contributions of the Labor Movement to the United States is, like so many other holidays, filled with sales and shopping (which, of course, means that retail employees don’t get the day off).

In any case, if you’re not taking the day off to shop or meditate on the results of the Labor Movement, then there’s a good chance you might be working today, so I thought I’d offer some friendly reminders.

Labor Day is a Holiday both under the California Rules of Court and as a State Holiday (see California Government Code section 6700).  Accordingly, as per California Rules of Court section 1.10(b), if the last day to perform any task was today, then the period is extended to the next day that isn’t a holiday, or Tuesday, September 4, 2018.

If you were planning on requesting a panel online as per Labor Code section 4062.2, the first day to request a panel is “[n]o earlier than the first working day that is at least 10 days after the date of mailing of a [4060/4061/4062 triggering document]” and that first working day should not be Monday, September 3, but rather Tuesday September 4, 2018.  Therefore, you may consider adjusting your plans to request a panel accordingly (and don’t forget the 5 days for mailing).

In any case your humble blogger hopes you do find some time to escape the sweet agony that is workers’ compensation, and if not for a full day then at least for some part of it.

Happy Labor Day!

Hi there dear readers – Friday is upon us and your humble blogger can already hear the hum of the margarita machines and the unscrewing of scotch bottles just around the corner.  But, as if cursed by the G-ds of workers compensation to almost always deliver bad news, I bring you the report that AB553 inches closer to being law, having just passed committee.

What is AB553?  Referenced previously on this most humble of blogs, AB553 would require any portion of the $120 million return to work fund to be distributed in equal shares to workers every year.

At present, injured workers who receive a SJDB Voucher might be entitled to an additional $5,000 forced out of the pockets of employers from the state as part of the “return to work” program.  Fully funded, the RTW fund could provide a supplemental $5,000 to 24,000 workers per year.  Presumably, if only 12,000 workers applied for the supplemental program and used up a total of $60 million, AB553 would have the effect of directing the remaining $60 million would be disbursed to those workers by the following April.

Now you might be thinking: Greg, your bow ties make you good lookin’ as heck, but you’re wrong here: why are you begrudging the poor injured workers some free money?

Well as sharp as I look in my bow ties (which everyone should wear, mind you) this bill is yet another tax on the employer.  How injured one is and how much of a “supplement” to a voucher one needs is not determined by how many other injuries there were that year.  The [barely] veiled policy behind this bill is if we have a year where employers make sure more of their employees are safe or, when injured, are returned to work, they should STILL be taxed a collective $120 million next year.

If we were to take for granted that the program is a good idea to begin with, then employers should be rewarded for avoiding the need for a voucher, either through safe work places or through re-employing permanently disabled workers, by NOT being assessed $120 million each year.

Hopefully AB553 will suffer the same fate as befell so many hopes, dreams, and aspirations of your humble blogger: rejected, mocked, and forgotten.

In the meantime, have a good weekend!

There are a lot of crazy movies and shows out there about prison.  They all include the same general prison themes, which your humble blogger won’t repeat here (this is, after all, a relatively family-friend blog).

But if you’re watching reruns of the HBO show Oz and the Neo-Nazis gang is planning their next move against the prison wardens and the Italian gang which has cornered the smuggled cigarette trade, one thing you won’t hear any of the characters mention is that they hope they can still get a voucher when they get on “the outside.”

So consider, if you will, the case of Dennis v. State of California, a recent panel decision.

Applicant sustained an admitted injury while working as an inmate laborer.  He was given an offer of regular work but advised he could not accept the offer because he had been released.

One would think the sweet smell of freedom would make a person so happy he wouldn’t care about a voucher, but not so.  Applicant requested dispute resolution before the Administrative Director, but the AD made no response.  Applicant then filed a DOR 140 days after initially requesting dispute resolution before the Administrative Director.

The WCJ found applicant’s DOR was not timely, as section 10133.54(f) holds that any request not responded to within 60 days shall be deemed denied, while subsection (g) allows a party to file a DOR within 20 days of any adverse determination by an administrative director to seek an appeal.

Thus…

The Panel however rejected the idea that the administrative director has the final say on whether applicant is entitled to a voucher.  Furthermore, it found the offer made by the prison was not a “bona fide” job offer because applicant was released from prison and could not return to the prison for employment.

The petition for reconsideration was granted and the defendant as ordered to provide applicant with a voucher.

Now, this is frustrating to you humble blogger for a number of reasons.  The incentive for returning an injured worker to work is escaping liability for a voucher (and advances).  But there are lots of situations in which the employer could accommodate the permanent work restrictions but the employee cannot accept the job.

Sometimes workers get deported; sometimes they get fired for cause; sometimes they move to the other side of the country; sometimes the business closes and everyone loses their jobs.   None of these scenarios warrant a voucher.  In the instant case, it was not applicant’s industrial injury that precluded a return to work, but circumstances that fell equally on other inmates released from prison who lost their jobs without having sustained an industrial injury.

Your humble blogger respectfully submits that so long as an employer could have accommodated applicant’s industrially caused work restrictions, its liability for a voucher should be cut off.

Happy Monday, dear readers!

Your humble blogger is back to pollute your in-boxes once more!  Did you miss me?

As alluded to a time or two before on this blog, your humble blogger was a big fan of Star Wars.  What I have learned applies equally to Star Wars and Workers’ Comp – nothing good can come from revisiting a settled matter.

The original Star Wars movies were great – but it’s been downhill ever since George Lucas decided he had to reopen the books.  Like a child on Christmas morning unable to stop tinkering with his new toy until he breaks it, Hollywood gave us Star Wars movie after Star Wars movie until all the joy was stolen from the franchise.  Help us Kurosawa – you’re our only hope!

The point is, of course, that things once settled should stay settled.

But then, of course, the Labor Code gives applicants the right to petition to reopen their claims for “new and further disability.”   Just like your humble blogger’s enjoyment of Star Wars was poisoned by too many sequels, so too can a petition to reopen steal the satisfaction of a resolution by stips in a workers’ comp claim.

One recent case touching on this is a writ denied decision from July of 2018, Miguel Villa v. WCAB.  Applicant filed a petition to reopen for new and further disability pertaining to his lumbar spine within 5 years of his date of injury of in 1990, and then amended the application to include psyche in 2006.

The defendant naturally started scratching its proverbial head – how can a petition to reopen a 1990 injury filed in 1994 be amended in 2006 to address psyche?

Well, the answer is that it shouldn’t, and, more importantly, it can’t!

After all, despite our beloved workers’ compensation system being given to flights of fancy and a whimsical interpretation of what may generally be referred to as “rules,” it’s not total fantasy!

The WCJ, in recommending petition be denied and the finding that the claim for a psyche injury was made beyond the five-year mark and was thus barred by statute, framed the issue as follows: “whether there is jurisdiction to award new and further disability indemnity related to compensable consequence injuries which arose after the five-year period and after Petitioner’s new and further spinal disability had reached permanent and stationary status, despite the timely filing of a Petition to Reopen.”

The WCJ cited Beck v. WCAB (65 CCC 845), a writ denied case from 2000, for the proposition that new and further disability must already exist prior to the 5-year mark.  The case of Hartsuiker v. WCAB, a 1993 decision, was also cited to reject the suggestion that merely filing a petition to reopen nullifies the 5-year limit on the WCAB’s jurisdiction.

The panel denied applicant’s petition and adopted and incorporated the WCJ’s recommendation.

Happy Monday, dear readers!

The summer is quickly drawing to a close, and soon children will be returning to their classes, young men and women will be returning to their college or grad school campuses, and the brave citizens of California’s workers’ compensation system can return to the soul crushing routine of denying benefits, litigating panels, and watching heaps of slack catapulted at applicants.

Once in a while though, the defense community gets to see a victory unfold, typically a small one, to help restore our faith in the needle of sanity that, as legend has it, exists in the chaos of workers’ comp.

While doing some research recently I stumbled upon the case of Bounthonv. Safe Streets USA, LLC.  In this panel decision, the WCAB affirmed the WCJ’s opinion that defendant’s offer of work precludes an entitlement to TTD benefits.

The typical case which we all encounter is this:

Applicant: “Oh boy, I sure would love to go back to work.  I hate sitting around the house, doing nothing, secretly working my second job while I collect TTD benefits.  If only my employer could accommodate my work restrictions, I would gladly get back to it!”

Employer: “We found this charity that can put you to work to accommodate your work restrictions.  We’ll pay you your normal wages and the charity will get the proceeds of your labor for free.  Everybody wins.”

Applicant: “…”

Employer: “…”

Applicant: “Not like that…”

So then you have the Bounthon v. Safe Streets USA, LLC case, which I stumbled upon recently doing some research on unrelated matter.

Therein, applicant sustained an admitted injury while working as a security alarm installer.  Defendant made an offer of alternative modified work with job duties available at the Salvation Army (Salvation Army was not associated with this case at the time of injury and is a separate entity, not the original employer).

After attending orientation at the Salvation Army, applicant declined the job but stood ready and able to accept and cash temporary disability checks.   At the expedited hearing that followed, he advanced the theory that his employer could not offer him work for another employer.

Applicant also alleged that because the Salvation Army is a Christian organization, “requiring” applicant to work there violations a host of his rights under the United States Constitution, including freedom of religion, and freedom from involuntary servitude (at trial, applicant claimed that “working for the Salvation Army was a form of ‘modern-day slavery’”).

The WCJ, in finding the offer of work valid, noted that no evidence was offered at trial as to what applicant’s religious beliefs were or why working at the Salvation Army would violate those beliefs.

Part of the WCJ’s reasoning was that Labor Code section 4657 provides that temporary disability benefits should be based on loss of physical ability or earning power caused by the injury.  The Labor Code gives no regard to ability to earn, not where the employee earns the money.  To quote the WCJ: “an employee is expected to earn the wages that his injury will allow, regardless of where they are earned.”

The WCAB denied applicant’s petition for removal.

This is certainly a reasonable and positive result for the defense community, and, really, for the workers’ compensation community.  Returning to activity that is medically permissible is a good thing.  If that activity consists of stocking shelves of donated sweaters at a Salvation Army instead of stocking shelves of new sweaters at a Gap, the end result is the same: productive labor and a lessening of the addictive and destructive pull of idleness.

But, aside from the result making sense, I would add a bit of analysis of my own.  Labor Code section 4658.1(c) specifically defines “alternative work” as “work that the employee has the ability to perform, that offers wages and compensation that are at least 85 percent of those paid to the employee at the time of the injury, and that is located within reasonable commuting distance of the employee’s residence at the time of injury.”

By contrast, subsection (a) defines regular work as “the employee’s usual occupation or the position in which the employee was engaged at the time of injury…”

In other words, the Labor Code specifically contemplates that “alternative work” will be based on (1) employee’s ability; (2) wages; and (3) reasonable geographic location.  The legislature could have added requirement of the same employer or business entity, but chose not to.

Just from my own, small and humble practice, I am seeing an increase in such offers.  Not every employer (or location for a larger employer) can accommodate work restrictions imposed by the various physicians.  But, typically, non-profit charity work is available to accommodate very light restrictions.  The benefits to all parties that are ethical and honest, are undeniable: the charity gets assistance in doing work pro bono publico, the employee continues to be active and is driven to return to work (to quote Benjamin Franklin – “I think the best way of doing good for the poor, is not making them easy in poverty, but leading or driving them out of it.”  So too, hour humble blogger submits, for those on temporary disability – it is a far greater service to guide such injured workers out of needing temporary disability benefits, rather than make them comfortable and inclined to continue needing and receiving them), and the employer gets the benefit of an active employee eager to return to work.

What right can an injured worker assert not to perform volunteer work within his or her restrictions and receive the same pay?  Of course, “I don’t want to!” is not a persuasive reason.

What do you think, dear readers – is your humble blogger missing something?  Is it beneath one’s dignity to do work for a charity?  Is the greater religious mission of a charity organization that does not discriminate in the beneficiaries of its charity a good reason to reject an offer as described above?

Happy Monday, dear readers!

Allow me, if I may, to invite you to take a short break from drafting your letters to the Governor asking him to use the power of eminent domain to confiscate this blog and shut it down for good.

Since we’ve gotten to know each other, I will let you in on a little secret.

One of the biggest fears defense attorneys harbor is failing to take credit for PDAs in any settlement.  As happy as our cold, dark, defense attorney hearts get when we come home bearing an Order Approving C&R, it also makes us wake up in a cold sweat and panic that we failed to list the permanent disability advances on the C&R.

Now, the WCAB could be a bit more sympathetic to these oversights, but, unfortunately, all the slack is spent on applicants with none left for us poor defense attorneys!

Such was the case of Quintanilla v. Tarzana Five-Four Corners Investment, a recent panel decision.  The parties proceeded with a C&R, but nearly $6k in PDAs were not credited against the $50k C&R.  Defendant sought reconsideration, of the OAC&R, arguing that the permanent disability advances should have been credited against the settlement amount.

The WCAB reasoned that there’s no “good cause” to set aside the OAC&R, because there were no signs of “mutual mistake of fact, duress, fraud, undue influence or procedural irregularities.”    The WCAB took the position that because defendant failed to list its PDAs and claim credit for them on the C&R, applicant essentially gets “free money.”

So, what’s to be done?  Sometimes the lines of communication break down between claims and legal and the PDAs to date don’t make it to the attorney in time to be incorporated into the C&R.  Sometimes claims sends a signed C&R to the attorney for walkthrough.

Well, the only quasi fail-safe that comes to your humble blogger’s mind that might work is putting in boilerplate language into the C&R asserting credit for any PDAs, subject to proof, even if not reflected on the C&R.  Other than just double and triple checking the PDAs before walkthrough – what would you do?

Have a good week folks!

Happy Wednesday, dear readers!

Normally, your humble blogger would save the grim and death-related posts for closer to Halloween.  However, as retail stores continue to set the start time of selling Halloween costumes, candy, and decorations earlier each year, who is your humble blogger to resist?  After all, as Thomas Jefferson said, “in matters of style, swim with the current.”

So, I bring to your attention the matter of Wilson (deceased) v. Securitas Security Services USA, a writ denied decision.

Applicant had sustained an admitted injury and the ultimate award for permanent disability was 61%.  Applicant died about 1.5 years after the date of injury from non-industrial causes.  Relying on Labor Code section 4700 (“Neither temporary nor permanent disability payments shall be made for any period of time subsequent to the death of the employee.”)

Just think about that for a second – assuming max earner status, a 2012 injury would pay $230 per week, and 61% PD would result in $82,627.50.  As applicant passed just a year and a half after his injury, and assuming at least some period of temporary disability, there may have been some $70,000 or so (roughly estimated and speculated upon by your humble blogger) of unpaid PD.

Applicant’s heirs challenged Labor Code section 4700 on constitutional grounds, arguing that application of section 4700 constituted “unjust enrichment” for the insurer.  Although fairly grim, this is an accurate statement.  But, technically speaking, doesn’t the non-industrial death of any applicant relieve an insurer of future medical care obligations?  In that sense, though unfortunate, the non-industrial death of a claimant results in a limitation of exposure for the insurer.

On Reconsideration, the WCAB affirmed the WCJ’s application of section 4700.  It further rejected the constitutional argument on the basis that, as an administrative law body, it lacks jurisdiction to make determinations about the constitutionality of a statute.

The Court of Appeal likewise denied review.

In this particular case, applicant had accepted an offer to return to work after his injury and passed away while still an employee.  In such an instance the employer was in a position to immediately notify the insurer and the defendant was able to move swiftly to terminate PD benefits.

On that note, dear readers, your humble blogger wishes you a swift and easy rest of your week.