To my dear beloved readers – I wish you a Merry Christmas and a Happy Hannukah!

May this be a season of joy, rest, peace, and good health for each and everyone one of you, and may 2017 overwhelm you with success and good fortune.

As for the undersigned, I remain, even into 2017, your humble blogger.

Happy Holidays!

Greg

Happy Monday, dear readers!

Most people with a TV set or a subscription to Netflix (let alone a basic education) are familiar with the concept of the 5th Amendment’s privilege against self-incrimination.  An accused cannot be compelled to offer testimony that might incriminate him or herself.

What happens when such a privilege is asserted in workers’ compensation matters?  Can the privilege against self-incrimination be asserted to avoid testifying at a deposition or hearing?  Can it be used to avoid submitting to a medical-legal examination?

In the matter of Smith v. Action Roofing, a panel case, presented such a situation.  Applicant sustained an admitted injury, but defendant alleged applicant committed fraud by engaging in softball during TTD periods, and lying about playing softball.  At some point, criminal charges were filed against applicant, and defendant sought to go to trial on its petition to dismiss based on fraud.

Applicant objected to proceeding to trial, arguing that as criminal charges were pending, applicant could not openly testify about the facts.

In denying applicant’s petition for removal of the order setting the sole issue for trial, the WCAB reasoned that “[d]efendant has a significant interest in proceeding expeditiously on its petition because defendant is continuing to pay benefits in this case and the continued payment of such benefits would be a significant burden if applicant’s workers’ compensation trial were stayed pending the resolution of criminal charges, which could take years… [a]lthough applicant has a significant interest in asserting his right against self-incrimination and applicant would be significantly burdened as such an assertion would create an adverse inference that applicant’s testimony would favor defendant, on the facts of this case applicant’s interest against self-incrimination is outweighed by defendant’s burden of continued payment of benefits and our constitutional mandate to resolve cases expeditiously.” (Emphasis belongs solely and exclusively to your humble blogger)

Now, I know this is only a panel case, dear readers, but it’s a wonderful result for the defense community.

Let’s put aside all the legal mumbo jumbo for a minute – one of two things is true: either applicant engaged in fraud or he didn’t.  If he did not engage in fraud, he can honestly and fairly testify about the facts of the case at his workers’ compensation proceeding without fear of any adverse effects on the criminal case.  However, if the injured worker must choose between engaging in perjury or self-incrimination, then, although the constitution might spare him a cell, perhaps he is not entitled to workers’ compensation benefits.

What’s the take-away for us?

Various privileges are asserted at deposition and trial.  Have you ever had an injured worker testify that he drove himself to the deposition, but then assert a privilege against self-incrimination when asked for a driver’s license?

Have you ever asked an injured worker if she has the right to work in the United States only to have the attorney instruct her not to answer based on 5th amendment privilege or privacy privilege?

Well, this panel case confirms other cases that allow for an adverse inference from asserting these privileges.

What’s more is that although incarceration is a basis for delaying resolution of workers’ compensation cases, pending criminal chargers are NOT grounds for delaying workers’ comp proceedings.  So if chargers are brought against an applicant, full speed ahead!

Now, it’s perfectly understandable that the more paranoid members of the applicant attorney bar will start crying out “injustice!”  They will see in their collective mind’s eye insurance companies pulling strings with their puppets in the prosecutor’s office to get rid of claims by having false charges brought against poor, defenseless workers.  Rubbish!

It is easier to have a camel pass through the eye of a needle than to get a case picked up by the district attorney or prosecution – probably because there are so many cases that merit prosecution!  The various prosecution offices receive funding from the defense community, but don’t kid yourself – it’s not a voluntary contribution.  The State of California takes what it wants from the employers and insurers and distributes it as it sees fit, often times to fund investigation and prosecution of employers and insurers!

Bottom line, dear folks – we should press this reasoning as much as possible to punish and discourage fraud.  There is no reason why an injured worker trying to decide between perjury and self-incrimination should be collecting benefits during his deliberations.

Bear with me dear readers – your humble blogger knows you’re only interested in news from California.  In fact, rumor has it that when some of you see a discussion on these hallowed pages regarding anything other than this great state, you may consider plugging your ears and going “la la la la la – I can’t hear  you – la la la la la” until the discussion returns to California.

This behavior is decidedly odd, of course, because this is a written publication, so you can really just not read it… there’s no sound involved…

Anyway, Governor Rich Snyder of the Great State of Michigan (although not as great as California) has signed into law a bill that would allow driverless cars on its roads.

Just think about it, dear readers – this process is happening and, absent a real-life Terminator-style scenario, more states are likely to follow suit.  In fact, given the inherent federal nature of roads and highways, it would not be surprising if, before long, there was a universal federal law in the United States permitting driverless cars.

The implications are astounding, of course – so many jobs would be automated.  Not only would the pool of labor being covered by workers’ compensation policies decrease, but we might see other benefits to the defense community: providing transportation for a worker to medical appointments, QME examinations, depositions… these things can get expensive.  Not every injured worker is willing to take Uber and get a reimbursement.

In those cases, how much cheaper will it be when a professional driver need not be hired for the day, but a driverless car can be dispatched?  Injured workers unable to drive will also have a cheaper claim for in-home care.

In the same way that once, long ago, the common mode of transportation was on horseback, and automotive ownership was an expensive luxury, perhaps owning cars and driving cars through human hands will be considered a skill-based luxury.

Have a good weekend!

Hello dear readers!

Your humble blogger bids you a very happy Wednesday, and hopes all is well in the world of the blog readers.

One of the wonderful charms of practicing workers’ compensation, at least in the San Francisco Bay Area, is that there appears to be a shortage of court reporters from time to time.  On a few occasions, y our humble blogger has observed trials and expedited hearings being postponed because no court reporter is available – sometimes none are present at all, and sometimes the only ones available are taken by other matters.

To relieve this pressure, the WCAB has started using remote court reporters with the aid of speaker phones and web cameras.  So your trial in San Francisco might be documented by a court reporter in Los Angeles or San Jose.  Fairly decent audio and visual technology has allowed an idle court reporter to fill a need in another part of the state.

As my readers will recall, the same technology, to a very limited extent, is being applied to address QMEs.  The issue of telemedicine was addressed briefly on this blog before but has come up again in Gonzales v. ABM Industries, where applicant declined to be examined by a QME using “telemedicine.”  From the case facts, it appears that the PQME would have examined applicant (presumably) by video and audio, with a local chiropractic QME to do the actual measurements.

Applicant sought to have the panel replaced on the grounds that without having the specific QME listed on the panel perform the face-to-face examination himself, he’s denied a meaningful choice from the panel.

The WCJ ruled that the telemedicine consent form allows applicant to refuse a QME exam through this means.  The WCAB denied removal.

So, just a few thoughts on this issue, dear readers:

How many applicants actually object to a pain management QME with an assist from a chiropractic QME?  Isn’t that an applicant’s dream team?  Perhaps there is more at work here than what is available from the facts of the case – if applicant is continuing to receive TTD benefits (remember, dear readers, that applicants already get practically full control over which PTP they will see), perhaps there is a tactical benefit to delaying the resolution of the file?  Just as easily, could a defendant decide to delay resolution of a file by objecting to telemedicine?

Additionally, while relief was sought on removal, aren’t panel disputes now valid grounds for reconsideration?

Finally, perhaps we need to revise the laws regulating medical-legal examinations.  If a QME exam really is conducted over both audio and video tools, how easy would it be to have the examination recorded?  Everything that was said (and everything that wasn’t said) would be evident to all parties, as would the actual results from any measurements taken.

Your humble blogger submits, once again, that there would be tremendous benefit to legitimately injured worker and the employers and insurers that pay all the bills to have such transparency.

Hello, dear readers!

It’s a wonderful day in the world of workers’ compensation.  Benefits are being denied, UR is being slowly but diligently upheld by IMR, and your humblest blogger has another blog post for you!

Today’s post is the case of Maciel v. RP Automotive, Inc., in which the WCJ ordered a new QME panel due to defendant’s alleged ex parte communication with the then-QME, only to recommend defendant’s petition for removal be granted on the basis that applicant’s counsel did not assume representation until after the letter in question had been sent, and said letter was sent to and received by the then-unrepresented applicant.  (Need another cup of coffee?  Basically, defendant copied in-prop-per applicant with a letter to the QME, applicant’s counsel gets retained and complains of ex-parte, WCJ determines that Order granting new panel should be rescinded).

Ok, everything is peachy, right? Why is that blogger guy wasting my precious internet time on this drivel when I could be looking at pictures of cats or researching how to handle a difficult doctor (the answer to that one, dear readers, is to bring a big bushel of apples to the doctor-depo!)

Defendant files for removal.  The WCAB reviews this and re-designates it a petition for reconsideration.  Are you getting this?

For years and years and years, many practitioners KNEW that QME panel disputes were NOT to be the basis of reconsideration petitions, and that the consequential delay in resolution and stripping the WCJ of jurisdiction, were effectively a bad-faith delay tactic.  Petitions filed petitions for “reconsideration and/or removal” and then sheepishly said “I dunno” and shrugged.

In fact, the WCAB panel held, en banc, that a dispute of a panel was proper for a petition for removal in Messele v. Pitco Foods, Inc (remember the one about how to count the first day for requesting a panel?)

Now, this panel of commissioners is opining that “[t]his requirement gives the opinions of the QME an elevated status that can be characterized as ‘critical’ to determination of the underlying issues in a case… From this perspective, a WCJ’s decision that resolves whether or not to allow a replacement QME panel in the determination of a critical issue, and a Petition for Reconsideration is the appropriate vehicle to challenge the determination.”

So, dear readers, what do you think?   Going forward, are you going to file petitions for reconsideration for panel disputes?  If nothing else, the Maciel opinion should be enough justification to avoid the imposition of sanctions for seeking reconsideration instead of removal.

Happy Hunting!

Alright, readers – here we are.  It’s Wednesday, your humble blogger has narrowly escaped another effort at disbarment, and we’ve got another blog post to muddle through!

Do you guys remember that Ogilvie case?  That’s the one that said that if the industrial injury impacts the injured worker’s future earning capacity in a different way than what is offered by the rating schedule, one could, possibly, rebut the presumption that the rating schedule is correct? (I know there’s more to it than that, but that’s the gist, no?)

Ok, so the applicants’ attorneys took the Ogilvie case and started hiring hacks and crooks to say that everyone who suffers a paper-cut is 100% permanently disabled.  On occasion, some vocational rehabilitation reports even went into such specifics as the injured worker’s education, skills, impact of industrial injury, and the availability of work with only a minimal use of “copy-paste”.

Unanswered questions persisted – does the rebutted DFEC equal the PD amount (so that a 50% diminished future earning capacity equals 50% PD)? Or, perhaps, that a 50% post-rebuttal DFEC is just a multiplier for the whole person impairment?

Well, fortunately, we got the Dahl decision in 2015, in which the Court of Appeal put a stop to all the nonsense – if you’re unfamiliar with the Dahl case, a very humble and witty summary is available here.

So, the ripple effects of both Dahl and Ogilvie continue.  Recently, the Court of Appeal denied review in the case of Edwards v. Forbes Security Co.

Right off the bat, I would point out that the Edwards case involves a 2011 injury – since the DFEC element to rating PD was eliminated by SB-863 for post 1/1/13 injuries, presumably, both Ogilvie and Dahl are not relevant for post 1/1/13 cases – but we’ll see!

In any case, applicant claimed that the permanent disability assigned to him by the AME was insufficient, because applicant’s poor education and history of unskilled work made him unamenable to rehabilitation.

The WCJ disagreed – relying on Ogilvie, the WCJ ruled that rebuttal is only warranted when the industrial injury makes an injured worker unamenable to rehabilitation.  The fact that applicant’s non-industrial conditions and history precluded rehabilitation did not warrant a rebuttal.

Further, I would remind my dear readers of the language of Ogilvie III which specifically held that “nonindustrial factor such as general economic conditions, illiteracy, proficiency in speaking English, or an employee’s lack of education” cannot be used to show that an injured worker is not amenable to rehabilitation.

Applicant’s petition for reconsideration (and the following petition for writ of review) argued that the WCJ misinterpreted the Dahl decision, to which the WCJ replied that Dahls was “a four-letter word which does not appear anywhere in [his] Opinion” and rightly so – one need not discuss the merits or application of Dahl to read the very plain language of the Ogilvie decision.

In any case, the WCAB adopted the WCJ’s opinion and the Court of Appeal denied review.

However, parties can rely on Dahl to bolster the findings of the WCJ.  As my beloved readers will recall, the Dahl Court dealt with a vocational rehabilitation expert who used a hypothetical class of workers who had nothing to do with the applicant and also claimed that amenability to rehabilitation is irrelevant to his determinations when that is precisely what Ogilvie called upon practitioners to discuss!

Another takeaway from this case is a friendly reminder for us all that applicant carries the burden of rebuttal and must show why applicant is entitled to retire to the Bahamas.  And, frankly, if applicant can carry so heavy a burden, that shows that he or she has a tremendous lifting capacity which negates any claims of injury (just a joke, dear readers…)

Alright, dear readers – back to the grind!

Happy Monday dear readers!

Are you well rested and over-fed from your Thanksgiving break?  Did you survive the terrors of Black Friday?  Is there anything left in the bank account with which to meet Cyber Monday?  Does anyone think these so-called “sales” are just frauds perpetrated against the citizenry?

Anywho, today’s story comes to you straight from the outback, and will be of particular importance to those of us who survived Thursday’s revelries needing a new liver, a new stomach, or, depending on how the awkward family discussion of recent political events went, fresh brain tissue.  It may also be of interest to us who note that workers’ compensation costs are often drive, at least in part, by medical treatment.

Herston Health Precinct in Queensland, Australia, has announced that it will be installing a biofabrication institute to “image, model[,]and manufacture 3D patient-specific tissues under one roof.”

The ultimate goal would be to 3D print tissue and organs to eliminate the delay of organ transplant waiting lists (and the related complications involved in organ transplants in general).

So, what does this mean for us in the workers’ compensation world?

Aside from the human aspects of wanting injured workers to receive high-quality medical care, there is the financial incentive as well: injured worker goes back to work and everybody wins; effective medical care for serious injuries becomes cheaper to provide and maintain and everybody wins.

We’re already seeing a growing potential for eliminating blindness and for mitigating the impact of lost limbs.  Injuries resulting in serious organ damage and the need for bone and skin replacement might be significantly mitigated if such centers are made cost-effective and readily available.

The old saying goes that the best time to plant a tree is 20 years ago, and the second best time is today.  In 20 years, which trees will we wish we had planted today?  How will workers’ compensation continue to function when the more dangerous jobs are being replaced by automation on the one hand, and industrial injuries are “cured” rather than just having their symptoms relieved or mitigated by medical advances on the other?

Hello, dear readers!

Your humble blogger bids you a very happy early Thanksgiving.  May tomorrow be a day of rest, thoughtful reflection, and peace for you.  As the saying goes, “comparison is the thief of joy,” so let this Thanksgiving be a day when we don’t think about what others have that we do not, but what we do have.  We’ve come a very long way from celebrating finding bitter berries while dodging saber-tooth tigers.

Anywho, with that thought out of the way, I thought we might all look back at another “blast from the past.” The case is Pohler  v. Cory, and hails from 1941!

Defendant had a turkey ranch on about 153 acres where he had more than 2000 birds per year.  Right before Thanksgiving, Cory would hire help to make the birds… well… “festive” by engaging in a maneuver called a “stick” – the approved procedure for killing the birds.  Your humble blogger doesn’t know the “stick” method very well, but would be happy to take care of any Wild Turkey that is of inconvenience to his beloved readers.

Pohler cut his index finger while performing a “stick” and his finger became infected, necessitating amputation.  While he claimed that he was an employee, Cory claimed that he was just being out for the job, and that he wasn’t going to let Pohler gobble gobble up his profits (that last part is my contribution to the story).

The Industrial Accident Commission held that, as a poultry raiser, Cory and his would-be employees were excluded from the workers’ compensation code by virtue of Labor Code section 4250, because his earnings for the preceding year did not reach $500.

Have you ever heard of Labor Code section 4250? Well, it was repealed in 1959, and Lexis only goes back to 1991, so I can only assume it allowed poultry growers to fly the workers’ compensation coop.

Happy Friday, dear readers!

I hope everyone out there is safe, finding the roads clear of obstruction.

I will refrain from commenting on the events of this week, because unlike Facebook and LinkedIn, this blog is one where the word “election” means Labor Code section 5500.5 and politics refers to parasitic organisms residing in cities (get it? Polis and ticks?)

Anywho – do you guys know what CrossFit is? Well, apparently, in addition to being an exercise method, it’s also a way to snare workers’ compensation fraudsters.

An OC deputy has been charged with perjury and insurance fraud for engaging in Cross-Fit while on TTD.

The accused, who shall remain nameless unless there is an actual conviction,  tripped over a fire-hose and injured his back, and then added claims for his shoulder and neck.  While collecting TD benefits, apparently, and being accommodated for a 10-pound push/pull/lift restriction, also engaged in several months of CrossFit, which involved, among other activities, 200 pound lifting exercises.

So, odds are, the Sheriff’s office was running routine sub rosa, or a co-worker tipped off the department.  In either case, the employer got evidence of some sort (possibly sub rosa), and then got a deposition transcript denying the truth, and out came the conviction.

If only it were that easy for private-sector employees, ones without any affiliation with law enforcement, to get fraud cases picked up and prosecuted.  But alas, California’s employers are only guaranteed the right (and non-waive-able obligation) to fund the Department of Insurance – it is up to prosecutorial discretion as to whether charges get filed.

In your humble blogger’s experience, it really varies county-by-county: some counties don’t place a high priority on prosecuting employee fraud, while others do.

What are the odds that the accused will claim that CrossFit was just part of his doctor’s intense rehabilitation?  Or that the instances of CrossFit exercise from May to November of 2015 were just a long string of “good days”?

Stories like these, dear readers, make your humble blogger want to file a psyche claim…

Hello, dear readers!

Friday has come and gone, the weekend is like dust in the wind, and here you are, seated firmly in front of your computer, tablet, or smart-phone, hopping out of the frying pay of doing work and into the mind-numbing flame of reading your humble blogger’s workers’ compensation ramblings.

But fear not, because todays’ post is actually good news!

Recently, the WCAB denied a lien claimant’s petition for reconsideration in the case of Escamilla v. Pelican Products Inc. case.  (Just a side note, dear readers: your humble blogger has recently been accused of being unfairly hard towards lien claimants, who bravely and generously provide medical care to injured workers when their employers and insurers won’t.  Well, don’t buy into that! Most of the lien claimants we deal with in wrapping up a case are repeat players: they know about the MPN, they read and ignore the objection letters, and they keep doing what they do on the presumption that they can litigate and get some money.  No sympathy will be found for them on these internet pages.)

Basically, lien claimant was complaining that an 18-month statute of limitations was applied to bar its lien (as per Labor Code section 4903.5(a)) when the lien claimant would have much preferred the 3-year statute of times past.

The commissioners were not persuaded.  When services are provided after July 1, 2013, the 18-month statute of limitations applies.

Now, here’s a thought – 4903.5(a) provides that “a lien claim for expenses as provided in subdivision (b) of Section 4903 shall not be filed after three years from the date the services were provided, nor more than 18 months after the services were provided on or after July 1, 2013.”

One of the things your humble blogger has encountered is a list of dates of service, with the last date of service within 18 months of the filed lien, and the inevitable argument that so long as the last date of service isn’t 18 months behind the lien, the entire bill is safe.  By contrast, I would think the defense would take the position that any date of service more than 18 months older than the lien is time-barred.

The panel decisions, unfortunately, haven’t been much help in this regard.  I would list them here, but I have no interest in doing legal research for the benefit of lien claimants, so you’ll just have to take my word on it.   From my research, at least, the panels have consistently found that lien claimants have 18 months from the last date of service provided for the whole set.  However, until there’s binding authority, I would submit that defendants can continue to make the argument that any services 18 months older than the filed lien are time-barred.

Alright dear readers – that’s it for me.  See you Wednesday!