Happy Monday, dear readers!

Did you know, the study of lore is particularly valuable to those willing to invest the necessary time?  If cornered by a werewolf, a silver weapon is the best defense where a typical bullet is useless.  If, on a dark night, you are assailed by a vampire, a wooden stake (or a delicious garlic steak) will be your best defense.  Even if cornered by a swarm of doctors, just having an apple or two on hand will have them hissing and scurrying off in retreat.

But what is that one device that will put fear into the heart of Nature’s apex predator – the lawyer?  There is only one thing these denizens of the State Bar (easy, friends, that’s a professional association, not where we lawyers meet for drinks) fear, and that’s the malpractice lawsuit!

Malpractice exists to provide a remedy to the victims of attorney incompetence, neglect, malfeasance, or malicious breach of duty.  When lawyers screw up, the malpractice lawsuit is supposed to make their clients whole, or pretty close to it.

So consider the panel decision in Escamilla v. Cacique.  Applicant sustained an admitted injury due to third-party tort.  While receiving workers’ comp benefits, the injured worker retained civil counsel to seek civil damages against the third-party tortfeasor.  Well, the applicant then sued those attorneys for allegedly blowing the filing deadline, and ended up receiving $320k, of which the applicant ultimately recovered almost $180k.

Well, the defendant in the workers’ comp case filed a petition for credit for third-party recovery against future benefits.

To your humble blogger, this makes perfect sense – the malpractice suit, in whole or in part, is to make applicant whole for a breach of duty from the civil attorneys.  The breach of duty caused harm to the extent that it failed to make applicant whole for the tort of the third-party defendant.  So if the malpractice suit makes applicant whole in general, why not let it offset the exposure for the workers’ comp case, as if applicant had recovered the money directly from the tort-feasor?

Well, the WCAB didn’t see it this way.

In the Escamilla decision, both the WCJ and the WCAB essentially found that defendant gets nothing (or, if you want to get a peek into the twisted mind of your humble blogger, the WCJ and the WCAB ruled that applicant gets a double recovery).

In answer to the defendant’s contention that it was entitled to credit, the WCAB noted that even if applicant was going to blow the deadline to file a civil suit, the defendant can always instigate the civil suit itself.  There is no need to wait by the sidelines – defendant can file its own actions and seek its own recovery directly from the third party.

Of interest, the WCAB decision pointed out that applicant and the WCJ on one side, and defendant on the other, rely on competing panel decisions that reached different conclusions, while there is a published Court of Appeal decision available: Soliz v. Spielman, a 1974 decision which specifically denied recovery for an employer from a malpractice suit against the injured worker’s attorneys.

Now, I know this will make me sound like a Russian man who was given wrong directions to the county fair, but: “this is not fair!”

I understand the logic of the decision well enough – the civil attorneys had no duty to the employer.  But I also understand that applicant receiving double recovery: first from the employer and its insurer and then from the civil attorneys for what the applicant might have recovered in the civil suit.

But, as frustrating as this is, let us pull from it a reminder to diligently pursue our third-party rights and not wait for applicants to do so for us.

“As President of California, I will Make Workers’ Compensation Fair!”

It brings me nothing but joy to deliver good news, especially on a Friday, so color me joyful, dear readers!

The conventional wisdom as late at last week was that temporary disability benefits could not start five years from the date of injury, but continue past the five-year mark if the disability began prior to the five year mark.  For example, if applicant undergoes surgery 4 years and 11 months after the date of injury, he might remain TTD (and receive TTD benefits) for well after the five year mark, rather than just the one month mark.

Well, the Court of Appeal issued its ruling in County of San Deigo v. WCAB (Pike) just this past Tuesday.  In its published decision, the Court of Appeal ruled that entitlement of TTD ends five years from the date of injury, even if the TTD period began prior to the 5-year mark.

Mr. Pike sustained an admitted injury on July 31, 2010, and resolve the claim by way of stipulated award.  Applicant then re-opened his claim within the five-year mark (roughly two months shy of five years from the DOI) and demanded TTD and salary continuation benefits.  His employer cut off the gravy-train on July 31, 2015.

Even though the TD had existed and started prior to the five-year mark, defendant’s position was that no TD benefits were owed after five years, relying on Labor Code section 4656 (“Aggregate disability payments for a single injury occurring on or after January 1, 2008, causing temporary disability shall not extend for more than 104 compensable weeks within a period of five years from the date of injury.”) Emphasis giddily added by your humble blogger.

Relying on the conventional practice and interpretation of the law, the WCJ ruled that an applicant can receive TTD benefits more than five years from the date of injury when “temporary total disability has commenced prior to five years from the date of the industrial injury.”  The WCAB offered a split panel decision adopting the WCJ’s conclusion, so it’s off to the Court of Appeal that defendant went!

Now, here’s the fun part – in reaching its conclusion, the Court of Appeal relied on its obligation to use a plain reading of the statute of apply it fairly.  That means that the statute says what it says and it doesn’t say what it doesn’t say, to quote one now-deceased SCOTUS Justice.   The plain reading of Labor Code section 4656(c) provides that five years from the date of injury, all liability for TD benefits expires.

“This text supports the conclusion that the Board is authorized to award a maximum of 104 weeks of temporary disability payments to a worker who suffers an injury on or after January 1, 2008, but also limits payments to periods of disability occurring within five years of the injury.  Neither Pike, nor the amicus brief filed by the CAAA on his behalf, offers any interpretation of section 4656, subdivision (c)(2) that would permit the award of temporary disability benefits for an injury occurring on or after January 1, 2008 for a period more than five years from the date of injury.”  (Just to add a bit of snark, footnote 8 reads: “[i]n fact, neither Pike nor the CAAA provides any interpretation of the text of section 4656, subdivision (c)(2).”

So there you have it folks.  It doesn’t matter if applicant received just a single day of TD benefits – the moment the clock strikes midnight on the five-year mark, the carriage becomes a pumpkin, the horses become mice, and any residual rights to TTD become an employer’s hope of prevailing on a statute of limitations defense in a cumulative trauma case – practically non-existent.

So, check your files, dear readers!  Are you paying TTD on any case more than five years from the DOI?  Then stop!  Are you pretty close to the five-year mark on any of your cases?  Well don’t give a lot of weight to the TD benefits that might start prior to that mark, because they’re not work anything afterwards.

Good news, indeed!  Have a good weekend!

Happy Wednesday, dear readers!

I’ve got some news for you.  Now, don’t “flip out” (there’s a pun coming, so brace yourselves) but CaliBurger in Pasadena has put to work “Flippy” the burger-flipping robot.

It looks like flippy can handle about 12 hamburgers at a time, and works with a human assistant (at least for now).  The human assistant lays out the beef, salt the patties, and preps the buns.  He also applies cheese to the burgers as per order, and veggies as necessary.

Flippy, however, stands by the hot skillet, flips the burgers and takes ready burgers off the grill once they are done.  He also scrapes the grill for the next batch. CaliBurger is apparently planning to roll out Flippy and his cousins at all their burger locations.

The company that produced Flippy, Miso Robotics, advises that each unit costs “at least” $60,000 to buy and $12,000 per month in maintenance costs.

Assuming California does not extend workers’ compensation benefits to robots (laugh all you want, dear readers, you know full well there’s someone out there looking to be the first one to advocate a new “cause”), let’s look at the savings an employer can expect by moving to such a model.

Assuming a full-time cook, earning minimum wage in California on January 1, 2019, for an employer with more than 25 employees, will cost about $25,000 per year in salary.  Add on payroll tax ($2k) and unemployment tax ($1k), and then whatever your workers comp rate is as well as your healthcare package.

Now try to picture time off, training time for new employees, and the cost of retraining replacements.  All of that would buy you up to 40 hours per week.  But CaliBurger in Pasadena is open from 11:00 a.m. to 9:00 p.m. every day (and an extra two hours on the weekends).  So you’d need at least two cooks to cover all those hours and possibly more to allow for breaks and sick leave.

Also, let’s look at the workers’ comp: the burger flipper job will likely fall into occupation code 322 (fast food worker) which carries “G” occupational variant for wrist injuries.  Injuries resulting from repetitive motion, knee and ankle wear from standing at the grill for long periods of time, and skin injuries for reactions to the heat or oil might add up quickly.  Flipping burgers is by no means a job insulated from the risk of injury.

Pretty soon, a robot that does one of the least pleasant jobs at the restaurant for $60k to start and $12k per year doesn’t sound so bad.  But it gets better – between Flippy and the self-ordering kiosks at other fast-food locations, it is not unreasonable to expect a restaurant that employed 5-10 people at a time be reduced to 2-3 employees doing the least arduous and unpleasant tasks the industry has to offer.

As your humble blogger has opined repeatedly, this is just the start.  So many of us have our lives, our fortunes, our sacred honor (or at the very least our careers) tied into an industry focused on humans doing work that occasionally causes injury.  What happens when less and less of the labor is done by humans?

Are you ready for that?

Happy Monday, dear readers!

Your humble blogger hopes you are staying dry, as the Bay Area is in enjoying a rinsing-off by the rains.

Today I bring to your most discerning attention the Court of Appeal opinion in the published case of City of South San Francisco v. WCAB and City of Pacifica.

The case involves a firefighter who worked for each of the two cities involved (South San Francisco until 2001, and then Pacifica after that).  While employed by Pacifica in 2005, applicant developed nasal obstruction in 2005, and then a growth on his neck which turned out to be a tumor.  Mr. Johnson, the applicant in question, developed nasopharyngeal cancer.  Because Labor Code section 3212.1 operated to apply a presumption of industrial causation, the main question was which of the two employers should be on the hook for the benefits to be provided.

The claim was filed against Pacifica, which denied the claim and joined South San Francisco.  The later eventually settled the case and sought contribution from Pacifica.  But, at arbitration, the case went in favor of Pacifica, because the latency period of the cancer suggested injurious exposure occurred during applicant’s time with South San Francisco.

And the case ended there, and everyone lived happily ever after.  The end.

Just kidding – did I mention this went up to the Court of Appeal?

The Agreed Medical Evaluator relied on studies showing solid tumors (like the growth on applicant’s neck) had a latency period of at least 10 years, and the estimated last exposure period was in 1996 or 1997, while applicant was still employed by South San Francisco.

Now comes the fun part – the AME expressed doubt that there was sufficient evidence to even conclude that the exposures visited upon firefighters could have caused the cancer, but there were two standards of proof at play.

The first one was general compensability, which had a presumption in favor of the applicant.  The second was the preponderance standard for which of his employers was responsible.  As such, because the AME’s evidence was more persuasive than not as to the latency period, even though that evidence might not have been more persuasive than not as to causation in general, South San Francisco got stuck with the whole shebang.

The Court of Appeal, in upholding the WCAB and the arbitrator’s findings, reasoned “[w]e simply do not find that same worker protection policies embodied in section 3212.1 implicated in allocation of liability between employers.”

So what does that mean for us on the defense side?  Well, sometimes, when there are multiple defendants involved, the applicant’s involvement can gum up the work.  Who needs one of those trouble-making applicant attorneys to file for hearings and make objections while we’re trying to close a file?  Why not just wrap it up with a C&R and handle it among the clearly more civilized attorneys of the defense bar?

WRONG.

Look, there are a LOT of reasons why it’s better to continue to litigate the case-in-chief rather than to seek contribution.  But, as far as it relates to this Court of Appeal decision, there’s clearly another one.

With this fresh Court of Appeal decision in hand, a defendant might want to resist taking one for the proverbial team and seeking contribution later – the standards are different.  While the multiple defendants are involved in the case-in-chief, perhaps they all have an incentive to try to beat that presumption, or any other high standard involved in the case.  There is potential in cooperation between defendants to share information to mount an effective global defense.  Not so, once the OAC&R issues.

What do you think, dear readers?  Is your humble blogger giving contribution a bad name? Or is it better to keep everyone trapped in a case as long as possible to squeeze contribution to a C&R (rather than contribution as reimbursement)?

Happy Thursday, dear readers (or, if you like, pretend it’s Wednesday and this blog post is not one day late)!

Your humble blogger grew up in a world that prominently featured the lovable Nintendo character, Kirby.  Kirby, presumably a sentient marshmallow, could obtain the powers of his enemies by inhaling them, and go about his merry day.

But, today, I am not here to tell you of Kirby the marshmallow, but rather Kirby, the case of Kirby v. Contra Costa Water District.

Therein, applicant claimed to have sustained a psyche injury related to work under the supervision of two of defendant’s supervising employees.  The PTP and the Psyche QME both recommended a change in department to avoid a “deleterious effect on his psyche.”

Naturally, defendant raised the affirmative defense of good faith personnel action, arguing that since the psyche claim was at least substantially (if not totally) caused by a non-discriminatory, good faith personnel action as contemplated by Labor Code section 3208.3(h), the claim was not compensable.

At trial, the witnesses provided the basis for the trial judge to conclude that 75% of the cause of the psychiatric injury was actual events of employment, and not a good faith personnel action.

The report and recommendation, after citing the entire text of the John Godfrey Saxe poem regarding a small number of blind men describing an elephant, (“[s]o, oft in theological wars, the disputants, I ween, tread on in utter ignorance, of what each other mean, and prate about the elephant, not one of them has seen!”), rejected defendant’s argument that the psychiatric injury, if there was one, was due to applicant’s misperceptions of work events, rather than the actual work events.  As your humble blogger’s favorite example goes, “well, he asked me for a glass of water so what he really means is that he wants me to drown.”

However, as the applicant credibly testified to specific events, and many of them, that occurred throughout the course of his employment, and these were not denied by the defense witnesses, there seemed sufficient evidence to find that actual events of employment caused the injury.

In particular, the WCJ noted that, based on the medical-legal evidence, the “good faith personnel actions” don’t make up nearly enough of the causation to warrant the defense; most of it being harassment from subordinate employees.

From your humble blogger’s own experience, the difference in accounts between the facts and history of employment relationships can sometimes lead one to believe that these are two separate cases.  Employers and employees remember (or claim to remember) things very differently, and sometimes it really is an issue of credibility.

Fortunately, this day in age allows more and more of these instances to be electronically recorded through e-mails.  An injured worker need only document the bad things that happen with an e-mail to HR to complain, and there exists an almost permanent paper trail.  Perhaps in some cases, the absence of such written complaints should be read as evidence of absences [of those events].

In any case, the good faith personnel defense is not, unfortunately, a panacea for all industrial psyche claims.  Tolerating harassment by subordinates is not, necessarily, a good faith personnel action.

Happy Monday, dear readers!

Your humble blogger has a case for you today on one of those topics that probably stands out as a favorite for everyone (that one was sarcasm, so please be ready for what comes next) – penalties!

Penalties (and sanctions) typically only affect defendants.  It is incredibly rare for any form of penalties or sanctions to be imposed on applicants (or their attorneys).  When it is the misdeed of the applicant attorney that causes the harm to the defendant, the injured worker often serves as a human shield for the attorney’s actions.  We wouldn’t want to punish the injured worker, would we?

Well, the case I’m bringing to your attention today is about penalties on alleged defense inaction (it’s not entirely clear from the case what caused the delay in issuing the voucher, or if this delay was reasonable, but the penalty dispute on the voucher itself was resolved by agreement).  In the case of McFarland v. Redlands Unified School District, a relatively recent panel decision, applicant sought penalties for the delay of a supplemental job displacement voucher, a claim resolved by agreement, but ALSO on the $5,000 return to work fund supplemental to the voucher.

The case-in-chief was resolved by way of C&R, and a voucher was to be provided to applicant.  Defendant was late getting the voucher out and so paid a penalty on the value of the voucher itself.  But applicant sought an additional penalty on the $5,000 return-to-work fund offered by the state under Labor Code section 139.48.

The reasoning behind the WCAB’s decision lies in the fact that the extra $5,000 provided by the state (after being collected from California’s employers and insurers) is not a benefit provided by the defendant.  The extra return-to-work fund is a supplemental benefit to those provided by the defendant, and so is not subject to the penalty.

What happens when there are consequences beyond the immediate provision of benefits?  If a delay in reimbursement of mileage caused an indigent applicant to be evicted from his apartment, is there a viable claim for penalties above and beyond the mileage reimbursement itself?  Based on this decision, it doesn’t look like it.

Hello there, dear readers, and happy St. Valentine’s Day!

Since time immemorial, true love has been demonstrated by committing acts of theft as a couple, best captured by James and Anne Bonny or Bonnie and Clyde.  It is fair to say, until you’ve engaged in theft, mayhem, and various other acts of crime, you haven’t really experienced TRUE love… amirite?

Anywho, in that spirit, I bring you an update to a story from a while back, in which your humble blogger passed on the info that Marcus Buckley went down for the fraud scheme pulled off with his insider conspirator – an adjuster!

Well, the news is out now that his partner in crime and, apparently, in love, Kimberly Jones, has now been sentenced to 33 months as well.

Truly, a modern-day Romeo and Juliet story, where the star-crossed lovers are kept apart by the arbitrary and capricious machinations of due process, the rule of law, and basic justice for the victims of their theft scheme.

Today, your humble blogger and his humble readers might bring flowers and chocolate home to their respective significant others, but as sweet as chocolates are, and no matter how fragrant the flowers, these gestures will hardly compare to the thrill of stealing $1.6 million from an insurer, robbing a bank, or even engaging in piracy on the high seas.

Happy Valentine’s Day!

Happy Monday, dear readers!

A while back, your humble blogger asked questions (as I often do) about Labor Code section 4061(i): how does this work?

4061(i) provides, after all, that “no issue relating to a dispute over the existence or extent of permanent impairment and limitations resulting from the injury may be the subject of a [DOR] unless there has first been a medical evaluation by a treating physician and by either an [AME or QME].”

So… WHAT DOES IT MEAN?!?

One panel decision held that failure to object to the DOR citing 4061(i) waives the objection, but now another, Bustos v. WCAB/Randstad Placement Pros, a writ denied case, holds that an evaluation is enough – the fact that the treating physician has declined to address PD (or find applicant P&S) is not good grounds to hold off trial or close discovery.

In Bustos, applicant was examined by her PTPs, but they never addressed PD. Meanwhile, her PQME had found her permanent and stationary and expressed an opinion as to her PD level.  Applicant sought reconsideration arguing that defendant’s DOR was defective because it had not complied with 4061(i).  However, in affirming the WCJ, the WCAB concluded that the trial presented two competing opinions: the PTP who did not find applicant permanent and stationary and the PQME who did.  The WCJ found the PQME more persuasive and thus the matter properly proceeded to trial.

As such, the WCAB rejected the claim that an applicant must be found permanent and stationary by two doctors prior to proceeding to trial.  It appears that an examination is sufficient to satisfy the requirement of Labor Code section 4061(i).

However, what if the pieces on the game-board were flipped?  If applicant’s PTP had found her permanent and stationary, but the PQME had not?  Could one party force a trial at that point?  I think so.

Now here’s another question – let’s say Ms. Bustos’ PTP ultimately does find her P&S, and provides a higher PD rating.  Would that report provide good cause to reopen for new and further disability?

Tell me, dear readers, do you ever order room service while staying in a hotel?

Well, it appears that a slowly growing trend might be catching on in some of the more expensive hotels, which will probably trickle down to the more affordable ones and the cruise ships before too long.

The New York Times has a report on the increased frequency of use of robots by hotels to deliver room service.

One of your humble blogger’s oft-visited topics is the automation of the workforce.  Typically, room service clerks will be plopped into occupation code 322, which carries an “F” variant for spine impairments, but “H/G” for wrist injuries.

Considering also that the average weekly wages of a hotel room service clerk will include minimum wage and tips, any state that recognized cumulative trauma claims (such as, for example, California), would see employers cut some of their claims by replacing room service clerks with some of these robots.

Although a bit dated, this article reflects that one of these models, SoftBank’s “Pepper” costs $1,660 to purchase with a monthly fee of $225 as part of a multi-year contract.  How do those expenses stack up to a minim wage worker (at least) and an increase in the workers’ compensation premiums?

The new facts of life that are emerging are simple (if a bit scary).  Robots are coming for the jobs – not just the dangerous ones; not just the ones where the human employee does not need to interact with the customers or clients; not just the repetitive ones.

The cute-faced and chirpy-sounding robots are coming for customer service jobs as well – from bartenders to room service clerks.

And, what many applicant attorneys refuse to consider when they boast about protecting injured workers by lobbying for more benefits, or using the cost of litigation to extort unjustified benefits, is that they are really pricing more and more workers out of the job market.

Pepper the robot will never get sick, will never be rude to a customer, and will never file a workers’ compensation claim.  Can any human worker honestly say the same?

Your humble blogger strongly doubts a machine will ever replace a workers’ compensation defense attorney, but, that being said, if machines replace all the workers, will a workers’ compensation attorney still be necessary?

Sounds like it’s time for a drink.

Ok dear readers, it’s Monday, and I’ve got some semi-good news for you!

You may recall a while back this blog diligently wrote about the Guzman case.  No, no, dear readers, not THAT Guzman – your AMEs and QMEs are still free to go fishing through the guides to make sure the injured worker gets enough money from the case.  The other Guzman, the one in which the WCAB held that a soil compactor landing on applicant was considered both sudden and extraordinary such as to defeat the 6-month employment rule of Labor Code section 3208.3(d).

Well, SCIF was not inclined to let matters sit, so it took the WCAB up to the Court of Appeal.

Just last Tuesday, the COA issued its (unfortunately) unpublished decision reversing the WCAB.  The COA took note that the incident happened when applicant as using the compactor on uneven ground.

Previously, at trial and on recon, the reasoning relied on applicant’s testimony that he had never heard of a compactor falling on anyone and that, in his 12 years of experience, he had never lost control of a compactor (prior to this claim).

On Appeal, SCIF advanced the theory that for an even to be “extraordinary” it must be “uncommon, unusual, and totally unexpected.”  As such, the “risks of tilting, falling, or losing balance while operating the heavy machine on a 45-degree slope were all reasonably foreseeable risks.”  SCIF also argued that the burden of proving that the event was sudden and extraordinary falls on the applicant, not on the defendant.

In reversing the WCAB, the Court cited three published opinions: Matea, Garcia, and Dreher.  Relying on this authority the COA noted that (1) it is the applicant and not the defendant that bears the burden of proof in establishing an event as sudden and extraordinary; and (2) “Guzman did not provide any evidence establishing that it is ‘uncommon, unusual, and totally unexpected’ for a rock to be in soil, for a compactor to rise when striking a rock, or for an operator to become unbalanced and fall when the compactor rises on a 45-degree hillside.”

But, after holding that there was insufficient evidence to support a finding that the event was “extraordinary” the Court of Appeal went further and held that the event was not even sudden:  if the circumstances in question are working on a slope rather than on even ground, applicant had been working on a slope for some 30 minutes before the accident.

So, great news, right?  Well, not so much.  First off the case is not published so we can’t exactly rely on it as compelling authority, although the reasoning can be copy-pasted into any trial brief and shamefully asserted as the attorney’s own words.  We’re lawyers, not saints, and we’re not above plagiarism!

Also, think about the litigation budget SCIF incurred to get this far.  Not only did SCIF have to shoulder the burden of a petition for reconsideration, but also a petition for writ of review.  The delay and cost involved might make any private-sector defendant hesitate.

This result should encourage us to continue litigating and appealing these cases because victory is possible, and this result will hopefully be a decent taste of reality to applicant attorneys.  But, that being said, if anyone has the Court of Appeal on speed-dial, perhaps we could encourage the Court to publish this case?