A little known fact is that the Founding Fathers, in drafting the Constitution, knew that one day our ears would be graced with the angelic chords of the Supremes.  Beautiful songs such as “Come See About Me” and “Stop! In the Name of Love” would charm a nation some day.  For that reason, almost 200 years before the songs themselves were ever written or performed, Benjamin Franklin and John Adams insisted that a nod to these artists should feature in the United States Constitution.  Thus the Supremacy Clause was born.

Article VI, clause 2 of the United States Constitution states “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof … shall be the Supreme law of the land; and the Judges in every State shall be bound hereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Why does your humble blogger, a lowly practitioner of an area of administrative law of a single state bring this up?  Well, about that…

California is sort of a Jekyll and Hyde state.  On the one hand, it is on the forefront of innovation.  Technological (and, to some extent, cultural) advancement in California leads the way for the rest of the Union.  On the other hand, Sacramento can’t help but stifle any sort of growth or development that might render the traditional services of government less necessary or important.

So, when Silicon Valley says “hey, how about we do driverless cars?  You’ll have fewer speeding violations and DUIs, and people who can’t afford a car or are too disabled to operate one will still have access to easy transportation?”  Dr. Jekyll says “that’s great! Let’s do it!” and Mr. Hyde says “policing DUIs provides jobs and revenue and what about all the drivers that will be out of work?!?”

Well, it just so happens that not too long ago, all the Silicon Valley big-wigs were sitting around eating avocado toast and listening to The Supremes, when one of them said “wait a minute, why don’t we go Federal?”

The Los Angeles Times is reporting that legislation is making its way through the House and the Senate to provide a single set of rules and regulations from sea to shining sea for self-driving cars. The Self Drive Act (H.R. 3388) “preempts states from enacting laws regarding the design, construction, or performance of highly automated vehicles or automated driving systems unless such laws enact standards identical to federal standards.”

What does that mean for California?  Well, for one thing, if the Self Drive Act actually becomes law, assuming that self-driving car manufacturers can actually comply with it, California’s efforts to keep  self-driving cars off the road (and out of the labor market) might be all for naught.

If you ask your humble blogger (which I assume you would since you’re reading this blog) as much as I hate the federal gubmn’t coming to California to tell us how to raise our organic, free-range, sustainable farmed avocados, this wouldn’t be the worst thing to happen.  Transportation costs would plummet for QME exams and medical appointments, and your humble blogger is very much looking forward to getting real work done during the commute to and from court.

What do you think?

Hey there dear readers – you made it to Friday and you should be congratulated.  We are powering through the summer of 2018 and it is a tough one.  The heat is unbearable, the recent QME pool is shallow, and, with each passing day it becomes less and less likely that your humble blogger will be tapped to fill the recent Supreme Court vacancy (hope springs eternal, dear readers…)

Anywho, since “Justice Humble Blogger” is not in the cards, regular humble blogger will give you some sage advice and invite you to check your MPN and your list of lien claimants for a certain Ronald Grusd, M.D., and his companies: California Imaging Network and Willows Consulting Company.

Dr. Grusd was sentenced to 10 years in federal prison for a healthcare fraud scheme.  Apparently, Dr. Grusd would bribe other physicians to refer patients to him and then bill insurers.

So if you’ve got liens from any of these operations, it’s time to stock up on apples and push them back.

“California Imaging” has about 145 liens listed on EAMS.

It looks like for his $100k in bribes he was referred over $22 million in business.  Not a bad return on investment if you don’t count the 10 year prison sentence.

So, once again, dear readers, before you check out for the weekend check your liens and MPNs.

Happy Wednesday, dear readers!

I return to you now, to grace your e-mail inboxes and pollute your otherwise rational thinking.  In the immortal words of the 20th Century poet Eminem, “Guess who’s back, back again, blogger’s back, tell a friend…”

So your humble blogger comes back with a report of a victory for defendants, and also for man’s ever intensifying battle against technology.  The case is that of Beitpolous v. California Correctional Healthcare Services (a WCAB Panel Decision).

In a denied case, applicant obtained a PM&R panel and after the strike process the QME remaining was listed as appearing via telemedicine (“Evaluation will take place through the use of telehealth using interactive audio, video, or data communications.”)

The telemedicine exam was conducted by having an assistant call ahead of the evaluation and take applicant’s complete history, and then, at the exam, the PQME appeared via video-conference while a QME chiropractor was in the exam room with the applicant and conducted the actual exam and took measurements (within view of the actual QME).

Defendant apparently was not advised that the QME exam would be via telemedicine until it received the QMEs report which reflected the same.  At that time, after defendant refused to accept the case based on the QME’s opinion, applicant set the matter for an MSC.  At the MSC defendant objected to the panel because the exam was conducted via telemedicine.

The WCJ ruled in favor of the defense, disqualifying the QME because the exam was conducted via telemedicine.  On removal, the WCAB sided with the defendant and the WCJ, citing Section 4628(a) which provides that no person other than the physician signing the medical-legal exam may take a history, review and summarize records, or compose the conclusions of the report.

The WCAB ruled that “constitutional principles of fairness and due process require that the identity of a physician assistant who is to physical perform the clinical examination be disclosed to the parties promptly upon the QME’s selection.”

So, absent an agreement ahead of time by the parties to allow for a telemedicine exam, it looks like any such exam would be vulnerable to an objection.

On the other hand, if an applicant’s attorney REALLY wanted to keep the QME exam, would advance disclosure cure any potential defects?

Happy Monday, dear readers!

The sun is shining, the smell of spring is in the air, and your humble blogger brings you the disappointing news of another defeat for the statute of limitations defense.

In the recent writ denied case of County of San Bernardino v. WCAB/Tammy Nelson-Watkins.  Basically, applicant alleged a cumulative trauma psyche claim.  Defendant denied the claim on multiple grounds, but one of which is that the claim was barred by statute of limitations.

Applicant sought treatment for depression and anxiety from June of 2013 to December of 2014, relating to her treating physicians that various aspects of work were causing her stress and anxiety.  She was taken off work for her diagnosis of depression several times during this period.  However, the application was not filed until November 10, 2015.

Applicant was examined by a psyche QME in May of 2016, who found she did have a psychiatric injury which was predominantly caused by actual events of employment.

At trial, the WCJ found that applicant’s date of injury was the date of the psyche QME report, because that was her first knowledge of industrial causation.  The panel majority concurred with the trial judge, reasoning that even though applicant herself told her doctors she associated work events and activities with her condition, and her treating physicians told her to find another career and that continued work would be detrimental to her psychiatric health, applicant still did not have knowledge to industrial causation until her psychiatrist told her so.

Unfortunately, the Court of Appeal allowed this decision to stand and denied review.

See, this is a wonderful example of why friends and family members sometimes doubt that workers’ compensation “law” actually exists.  Try explaining to someone that an injured worker can allege an injury without a date.  “Yeah, I got hurt by work real bad, but I won’t have a date of injury until one of the QMEs confirms the personal belief I’ve had for years that work caused my injury.”

This case presents a scenario where a worker had told psychiatrists for over a year that work was causing her symptoms; she was told not to return to work because work is making her symptoms worse; she was hospitalized and eventually taken off work… and none of this is enough to conclude that she “knew or should have known” that her condition was caused by work?

Look at the contrary argument – what business does an applicant have filing a CT psyche claim until he or she has retained and paid for an expert that has prepared a report concluding industrial causation?  After all, the applicant can’t be charged with knowledge of causation, isn’t this a frivolous claim to prosecute?  Of course, in this case, we’re allowing an applicant to have her proverbial case and (proverbially) eat it too.

The underlying current in all this is, of course, that the WCAB has considerable hostility towards the statute of limitations defense – especially in CT cases.  In this particular case, by the time a claim was filed applicant has not been at work for 1.5 years.  During that time, undoubtedly, witnesses disappeared or became disgruntled; evidence was lost, and the right of medical control and monitoring was denied to a defendant.

Hopefully, whether by act of the Legislature or one of the higher courts, some fresh teeth will be put into Labor Code section 5412.  In case any of you powerful State Senators or California Supreme Court Justices are wondering what your humble blogger would like for the Hanukkah, how you know.  In the meantime, your humble blogger’s natural fighting instinct says these issues should still be litigated and fought tooth-and-nail.

But, realistically, if the acts of this case were sufficient to defeat the statute of limitations defense, it’s hard to imagine a scenario where the WCAB will not give an applicant a pass, absent sitting on a QME report for over a year.

The only tiny sliver of a silver lining is that there is sufficient binding authority for the contrary argument that defendants can continue to litigate this issue in good faith and hope for some better guidance from the Court of Appeal.

And a happy Monday to you, dear readers!

Have you seen the Terry v. Department of Corrections decision (writ denied) originating at the Eureka board?  When I saw the decision, I cried out “I’ve found it!” (See what I did there?).

The Terry case is a sad but straight-forward one.  Mr. Terry sustained an admitted injury in May of 2011 to his spine.  Unfortunately, he passed away in May of 2016, and his widow filed a death claim alleging that the admitted spine injury from 2011 contributed to his death.

The WCJ (and later the WCAB) found that the claim for death benefits was not compensable, relying on Labor Code section 5406 (“proceedings shall not be commenced more than one year after the date of death, nor more than 240 weeks from the date of injury.”) In this case, the death was about 260 weeks from the date of injury.

Applicant cited the case of Arndt v. WCAB (1976) for the proposition that the 240 weeks should be calculated form the date of injury, being the date when applicant knew her husband’s death was industrially caused.

The WCJ and WCAB rejected this theory, reasoning that the case at hand was a specific injury, and so the compensable consequence, to wit, the death, relates back to the original date of injury, rather than the date on which the applicant became aware of the connection between the death and the original industrial injury from 2011.

This argument, trying to pin the date of injury for a specific injury to the date of knowledge of industrial causation (or the right to file a claim) is one we’ve seen before.

In the panel case of Ostini v. Alma Rosa Winery & Vineyard, applicant also argued that the statute of limitations should not bar her claim because she didn’t know the injury was industrial until a year after it happened.  In that case, the panel reversed the WCJ in finding that the “date of knowledge” of industrial causation was irrelevant to a specific injury claim.

Death cases are always sad, but it is important that this result was reached to avoid making the defendant a victim of injustice.

Anywho, dear readers, back to work!

Alrighty, dear readers, how was your commute today?

Well, there’s a good chance that it’s going to be getting better in the near future.  The California Public Utilities Commission has voted to approve a few pilot programs in California for driver-less cars to carry passengers.

In true California spirit, the commission has not allowed the companies to charge money for the service (at least for now).

Quoting from the SF Examiner article, Commissioner Liane Randolph opined that “the free rides will signal to the public that the pilot program is ‘different from ordinary transportation,’ which will hopefully encourage the public to be ‘more mindful of their experiences and provide critical feedback to the Commission and the permit-holders.’”

Well, driver-less cars are either safe or they aren’t, whether they are free or not will not make them safer or more dangerous.  But in any case this is progress in the right direction.  Making driverless cars available for passenger transport is going to eliminate a huge cost in the industry: the driver.  All of UBER and LYFT’s woes of litigating employee vs. independent contractor issues, unions, and minimum wage will all disappear.

Furthermore, the cost of the service should drop dramatically, which will make it more accessible to those who need it.

In terms of the workers’ compensation world, as driverless cars become the norm, we can see fewer costs in providing transportation to injured workers for medical appointments, depositions, or exams.

As automation of this type continues apace, we can also see a shift in the type of labor needed in California.  Instead of hours spent on driving the cars, the demand will likely be for more skilled labor in assembling, maintaining, and repairing the automobiles.

So, about that commute – how much would you be willing to pay if you didn’t have to drive, but could spend the time working, sleeping, or relaxing and staring out the window?  Would you pay $10 per day for an extra two hours of relatively free time?  Well, the way things are going it looks like that may indeed be an option in the near future.

Happy Monday, dear readers!

Did you know, before members of the defense community go to sleep, we check underneath our beds for the most terrifying monster of all: the 90 day presumption!

No, not really, but the 90-day presumption has some pretty vicious teeth to it.  Labor Code section 5402(b) provides that “if liability is not rejected within 90 days after the date the claim form is filed … the injury shall be presumed compensable under this division.”

The case I bring to your attention today is that of Quintanilla v. Pronto Express & Services, Inc.  Quintanilla was a death claim in which the decedent’s family sent a claim form to the deceased worker’s employer.  The claim was ultimately denied, citing on the “going and coming” rule that we all know and love so much.  In terms of the particular facts, Mr. Quintanilla was driving home from work, and had stopped at a store to pick up food at the request of his wife.  He was murdered by a gunman during the stop.

However, in a cruel twist of fate, at an AOE/COE trial, the WCJ found that the denial came too late!

In the decision, the WCJ noted that the claim form was served on defendant on July 20, 2016, but the denial was not issued until October 31, 2016, 103 days later.  The WCJ reasoned that since the facts of the case, especially those giving rise to the coming and going defense, were available to defendant within those 90 days, the claims was presumed compensable.

The frustrating thing about this is, of course, that had there been a timely denial, applicant’s claim would likely have been barred.  Because the denial issued 8-13 days later (depending on if you apply the 5-day mailing rule for the claim form) the defendant was required to provide death benefits.

Now, your humble blogger is turning towards the stormy seas of speculation at this point, but if I had to venture a guess, without any actual knowledge, I would think that in these cases, the reason for the late denial is a slow response from the employer.  By failing to immediately act upon the knowledge that an industrial claim was being made, the employer usually puts itself in a disadvantageous position.

So, this seems like a perfect opportunity to remind my beloved readers (and invite all of you to tell your friends) not to sit on their rights or defenses – problems don’t go away by themselves, they just come back as bigger, more expensive problems.  If there’s a real or potential claim out there, notify your insurer or talk to a workers’ compensation defense attorney right away.  No matter how meritless the claim might seem on its face, the draconian effect of 5402 can be biting indeed.

Happy Friday, dear readers!

Do your humble blogger a real solid – can you check if you have any liens with Curtis Wayne Montgomery, D.C., of Riverside?

Well, Dr. Montgomery has been charged (charged, mind you, not convicted) of various crimes related to fraud and false referrals within the realm of workers’ compensation.

As alleged (alleged, mind you, not proven), Dr. Montgomery paid more than $300,000 to Providence Scheduling, the owners of which have already plead guilty to federal charges related to a referral scheme.

Logic dictates that if the law enforcement authorities think Dr. Montgomery paid $300,000 for referrals, he likely billed well in excess of $300,000.

Now, Dr. Montgomery will have his day in court and an opportunity to present his defenses, but if you have any liens open with him now, you may want to consider these developments in approaching your negotiations.

Have a good weekend, dear readers!

Happy Wednesday, dear readers!

I trust you are all well rested and ready to resume your labors.  We’re all in this together, right?

Well, today I bring you the panel decision in the case of Sandoval v. Waterproofing Associates.  Therein, applicant sustained an injury in 2011 while working as a roofing journeyman, and in 2016 the matter was brought to trial.  The injuries were orthopedic in nature.

Defendant argued for 50% permanent disability based on medical evidence, while applicant argued for permanent total disability based on vocational rehabilitation reporting.

The WCJ ruled that applicant failed to show permanent totally disability “in accordance with the facts” as per Labor Code section 4662(b) and that the vocational rehabilitation evidence was defective because it relied on non-industrial factors.

Applicant sought reconsideration, arguing … well… you know what he was arguing: give me more money because reasons!  Sorry for the sass, dear readers, but this was the garden variety argument under Ogilvie, to wit, that the injured worker’s PD exceeds the schedule because of a greater diminished future earnings capacity than provided by the schedule.

The WCJ reasoned that there were several non-industrial factors to be considered in calculating diminished future earning capacity, such as the fact that applicant did not speak English and had very limited education.  The defense voc-rehab expert opined that applicant, even in his pre-injury state, had a very limited pool of available jobs.

The WCAB commissioners affirmed the WCJ’s ruling.

In these situations, we often hear the word “eggshell” thrown around by applicant attorneys.  The eggshell plaintiff (or applicant, in our line of work) theory suggests that we should take an injured worker as we find him or her.  By that theory, applicants would argue, the fact that this particular applicant was a person who did not speak the English language and had limited education, is irrelevant.

However, the defense answer to this is, naturally, to cite Labor Code section 4664: “[t]he employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment.”

Onward to Friday, dear readers!

Happy Monday, dear readers!

Your humble blogger hopes you have blocked all thoughts of work, workers, compensation and workers’ compensation from your minds.

Today is Memorial Day, 2018.  And, as often said on this must humble of blogs, this day is not just for BBQs and new-car sales.  Many of the people we see at work, at the Board, and interact with throughout the days have friends and family members that gave their lives in service to their country, and today is specifically to remember their sacrifice.

As the somber note of today puts our daily bickering at the WCAB in perspective, consider a small donation to any number of charities established to support veterans and their families.

Your humble blogger wishes you a restful and thoughtful Memorial Day holiday!