And a good day to you, dear readers!

Your humble blogger recently read the case of K.  v. Caletti Jungsten Construction (it’s kind of a sensitive nature case, dear readers, hence only the first initial.  If you need the full case name for citation purposes, please drop your humble blogger a line.)

The basic story here is that applicant sustained orthopedic injuries and an injury to the psyche in 2011.  While the parties apparently had no dispute to the rating of the orthopedic AME’s report, which resulted in 62% PD, the psyche AME found 11% WPI which rated to 23% PD, but only 15% PD after apportionment.  At trial, the WCJ did not sustain the apportionment analysis of the psyche and awarded a full 23% PD for the psyche to applicant.  When combined with the 62% of the orthopedic injury, resulted in 71% PD.

On recon, defendant pointed out that the AME apportioned 35% of the psyche claim to prior trauma that was non-industrial, and continued to plague applicant.

The commissioners started their discussion by pointing out that “[t]he parties presumably choose an AME because of the AME’s expertise and neutrality … [w]e will follow the opinions of the AME unless good cause exists to find his opinion unpersuasive.”  And there you have it – the AME’s opinions are sacrosanct – only through a very serious flaw in the opinion or reasoning will the WCJ and WCAB disturb the AME’s opinions, and for very, very good reason.

The name of the game is, of course, judicial economy.  There are injured workers who are waiting to get an order to pay TTD so that they can eat.  There are defendants who are paying huge premium increases based on temporary experience modifications because there is claim lingering.  There are injured workers waiting to get a hearing on their medical treatment request so that they don’t suffer permanent (but preventable) injury.   These are real, substantive issues which have legitimate claim on the time and mental dexterity of attorneys, judges, and commissioners.

Instead, we’re dealing with panel disputes!  Which panel specialty is correct? Which opinions should control (PTP or QME)? Is the report late? How much time did the QME really spend during the exam?  The attitude of the WCAB, from the standpoint of judicial economy, is that AMEs resolve all these disputes – from whether the panel issued timely from the Medical Unit to whether that communication was ex parte as contemplated by Labor Code section 4602.3.

So when an AME says the psyche claim is only 65% industrial, there needs to be a good reason to disturb that opinion.  Otherwise, there’s no good reason to go to an AME.

The commissioners awarded the apportionment and reduced the final PD to 68%.

So what’s the big deal? Did the defendants really win anything? A measly 3%?  Well, yes, it is a victory.  This was a 2011 DOI, so if you’re applying the 15% increase for not making an offer of Regular, Modified, or Alternative Work, the actual PD value presents a gap of almost $30k.  But that’s not all! 68% puts applicant just under the cut-off for a life pension.   That means all the headaches of COLA and commutation, not to mention a whole lot more cash.

Your humble blogger sends his congrats on a job well done!

Hello dear readers!

I know it’s Sunday and you’re all probably wondering why you would allow a humble blogger to pollute your screens and invade your in-box on such a glorious, workers-comp-free Sunday.

Today, at sundown, as we all brace ourselves to go, once more unto the breach, the Jewish New Year, Rosh Hashanah, will start.  Challahs will be round and bread will be eaten with honey.

Your humble blogger wishes a very happy and sweet new year to all his readers.

Hello dear readers!

Usually your humble blogger comes to tell you how horrible life is outside of the cave – up is down, down is up, applicants are getting benefits and workers’ comp bloggers are humble!

But today I actually get to report on a recent panel decision that will remind you that rain is right (recall, please, that rain makes corn, and corn makes whiskey).  In the case of Espinoza v. Sunrise Senior Living, a lien was dismissed after the lien claimant’s representative failed to appear at a lien conference.

The lien claimant had filed a DOR, and then failed to show up.  When the WCJ issued a Notice of Intention to Dismiss, the lien claimant objected, and provided as “good cause” for failing to appear that the lien representative miss-calendared.

The WCJ rejected this as a basis and dismissed the lien and, on reconsideration, the WCAB concurred with the WCJ: “[w]e do not find that the mere assertion of inadvertence as a result of miscalendaring, without further explanation as to the circumstances, sufficiently establishes good cause to set aside the Order Dismissing.”

So, here’s the thing that you get from a bit of practice in the lien game: the same lien claimants treat on a lien basis KNOWING that there is an MPN; KNOWING that the claim is denied; KNOWING that there is a fee schedule.  And they know these things because they are repeat players at the WCAB and have been ruled against time and again.  But they keep doing this because the business model is built around shaking down settlements and, on occasion, catching a defense attorney or adjuster snoozing.

But even if the lien claimant has no case, they will try to use a particular claim to inflict damage on the file: delay file closure, drive up defense costs, scare up settlements.  And they do this knowing that the next time this adjuster and/or defense attorney is dealing with them, the cost of the last lien to resolve drives up the “savings” by settling now.  Missed hearings are a part of the game because the defense attorney still had to prepare and appear; the adjuster had to keep the file open for that much longer.

So, your humble blogger has a few thoughts to bolster your position when your defense attorney gets all dressed up and has nowhere to go:

1. In your humble bloggers experience, more and more lien claimants are e-filers or jet filers and so when they file for a DOR, they actually PICK THEIR OWN HEARING DATE! That means that there is absolutely NO excuse for not showing up or “miscalendaring” because it’s only the defense attorneys who might have a conflict – why would one schedule a hearing when one is not available?
2. While some lien claimants have in-house representatives or licensed attorneys seeking a recovery, many lien claimants don’t and use non-attorney hearing representatives. That means that, pursuant to Labor Code section 4903.6(b) lien claimants must notify all parties of their representatives, and California Code of Regulations section 10774.5(e)(4) requires a hearing representative’s NOR to be signed by the lien claimant.  So, if there was no such NOR filed, then the lien claimants wasn’t really represented… and should have been there itself.
3. If the lien claimant were allowed to revive its lien, shouldn’t the defense be entitled to costs for the fair value of the defense attorney’s time? How about any administrative costs associated with keeping the file open?

Go forth, dear readers, and crush all liens into take nothings! Go fifth… and pay the liens in full…

Brace yourselves, dear readers — it’s time for another rant.

The way this whole workers’ comp thing works, when everyone is represented, is that an offer is made to the injured worker’s attorney, who is ethically bound (See State Bar Rule 3-510) to communicate it in full to his or her client promptly, and then the same attorney communicates the response (accept, reject, counter).

On several occasions, the rejection of an offer has left your humble blogger, and his client, puzzled.  So puzzled, in fact, that the defense might wonder if the offer was ever communicated to the client.  Now, your humble blogger knows that the vast majority of attorneys practicing applicant’s workers’ compensation, at least the ones he has met and worked with, abide by their ethical duties.  That being said, there are attorneys out there, both applicant and defense, that may bend the rules a bit.

Sometimes it might be justified (internally) by deciding the client is not in the right state of mind to make significant, long-term decisions, and that the attorney needs to step in and decide things for the best interest of his clients.  But, even then, it is easy for a more cynical person to suspect that while a settlement offer might help the injured worker, it does not help the injured worker’s attorney enough.

To that end, sometimes adjusters might consider asking defense attorneys to write directly to the injured worker or to send a settlement offer and a copy to the injured worker too, just to make sure that the injured worker is actually receiving the settlement demand.  The problem with this is, of course, that the State Bar of California expressly prohibits an attorney from communicating with a represented party.  (See State Bar Rule 2-100).

I strongly urge the defense community to abide by these rules.  For the defense attorneys, the thing at stake is your license and ability to practice law in California.  For the adjuster, if your attorney is willing to violate some ethical rules then you’re playing with fire, which President George Washington described as “a dangerous servant and a fearful master.”

http://www.mtv.com/videos/misc/170255/old-fashioned-guy-ii.jhtml#id=1603333

So, what is your humble blogger’s suggestion?  What if we required settlements to be rejected in writing, signed by the injured worker?

Here are a couple of scenarios:

A hearing SHALL be taken off calendar at defendant’s request if defendant shows a settlement offer was made in writing and, prior to filing a Declaration of Readiness to Proceed, applicant did not, in writing, respond to the settlement offer.  Such response shall be signed by the applicant him or herself.

If a settlement offer was made in writing by defendant, a matter may not be set for trial following a Mandatory Settlement Conference, and discovery shall not close at a Mandatory Settlement Conference, unless applicant provided a written response to the settlement offer.  Such response shall be signed by the applicant him or herself.

Obviously, offers to compromise are privileged and these documents would not be admissible for at trial.  (See California Evidence Code section 1152)

The basic idea is, of course, to confirm that the applicant is receiving the actual settlement offers, without pressuring defense attorneys to violate ethical rules.  It also serves to protect applicants’ attorneys – if trial does not go the injured worker’s way, there’s a written record that the applicant received a settlement offer and rejected it, rather than later (falsely) claiming to never have been advised of the offer in the first place.

There are, unfortunately, defense attorneys who advise their clients with the intent of generating billable hours rather than getting the best result for their clients.  There are, unfortunately, applicant attorneys who guide their clients into taking unreasonable risks to generate a higher attorney fee.  These are the vast minority of practitioners, of course, and by no means the norm.

But the damage to the reputation of the bar can be done by uncertainty and doubt alone – perhaps more documentation is the way to get around this scenario.

Ok, my dear readers, the rant is over.  Back to work!

Hello, my dear readers! Your humble blogger is back from his temporary incarceration for blogging without a license, and not unlike Prometheus, is ready to steal the fiery wisdom of workers’ compensation from on high to deliver it to the eager minds of the mortal denizens of the workers’ compensation world.

…

So, speaking of mental injuries, I submit to you a case that originates in the farthest regions of California.  Deep in the wooded hills and among the wild streams, the Eureka Board is the point of origin for the matter of Winningham v. State of California Department of Corrections.  Applicant, a corrections officer, sustained an injury to his “brain, central nervous system, psyche, eye, digestive system, cognitive system, and I the forms of meningitis, headaches, and vertigo.”  The legal theory advanced was that applicant’s pre-existing condition was “lit up” while applicant was in the gym as part of a work fitness program.

Although applicant was pushing for a finding of permanent total disability, the WCJ instead found that the total permanent disability as “in accordance with the fact” (see Labor Code section 4662(b)) and NOT a presumption as applicant argued (see Labor Code section 4662(a)(4) – “an injury to the brain resulting in permanent mental incapacity.”)  The WCJ then applied apportionment which resulted in an award of 84% permanent disability.

In her report, the WCJ noted that applicant “had a non-industrial underlying asymptomatic condition [brain tumor] that was lit up by his industrial activities [weight lifting].”  The WCJ further noted that the AME’s deposition transcript suggested that applicant’s condition could improve, and that some higher cognitive functioning is still available to applicant.

So… what is total mental incapacity?  Well, in adopting and incorporating the WCJ’s decision, the WCAB cited Schroeder v. WCAB, a 2013 writ denied case in which the WCAB’s opinion, undisturbed by the Court of Appeal, was that 4662 had to do with injuries on the level of “severe mental retardation.”   (Your humble blogger would like to point out for his beloved readers that in 2013, the year the Schroeder opinion issued, LC 4662 looked a bit different: back then, theories that relied on “in accordance with the facts” would benefit from the conclusive presumption of total permanent disability.  By contrast, now at least, permanent total disability “in accordance with the facts” is subject to apportionment.)

In this case, in he injured worker competently and credibly testified about his history and experiences before the WCJ.  The AMEs on the case expected that treatment would improve his condition.  Accordingly, he did not qualify for the conclusive presumption of total disability.

The language of the AMEs in this case was pretty strong supporting apportionment, but can you imagine the damage done to the defendant if permanent total disability had been conclusively presumed?  We’re talking applicant’s TTD rate for the rest of his life with COLA increases.  We’re talking a massive commutation to pay applicant’s attorney’s fee.  This is pretty freakin’ huge!

Cases like this make employers seriously reconsider their work fitness programs!

Now, even with an 84% PD finding, we’re still looking at over $200k in PD and that’s before you get to the pension.  By contrast, if you were to assume a $50,000 per year salary, or average weekly wages of $960, the TD rate is $640.  With a 40 year life expectancy, that’s over $1.3 million, and that’s before the COLA increases.

So, what do we take away from this?

4662(a) is NOT your friend.

4662(b) might be.

Your humble blogger? Always your good and trusted companion…

Happy Monday, dear readers!

Your humble blogger, on a few occasions, has raised the question: what the heck is a catastrophic injury?  After all, we really don’t know what sort of injury would prompt a compensable consequence psyche injury to trigger liability for permanent disability (or possibly temporary disability), right?

Well, enter Senate Bill 897 – and this one is a real beauty!

SB897 passed the senate and the assembly recently, and would basically extend the wage continuation for injured public safety employees (firefighters, police officers, sheriff’s deputies, etc.) from one year to two years, if the employee sustained a “catastrophic injury at the hands of another.”  Now, whatever the merits of replacing two years of temporary disability with two years of wage continuation at the expense of tax payers, this would give us a working definition of the term “catastrophic.”

Labor Code section 4660.1(c)(2)(B) already provides with some parameters for a catastrophic injury: “including, but not limited to, loss of a limb, paralysis, severe burn, or severe head injury.”

SB897 defines a “catastrophic injury at the hands of another” as “severe burns, severe bodily injuries resulting from the collapse of a building, or severe bodily injuries resulting from a shooting, stabbing, or battery.”  Well, 4660.1 already provides that being a victim of a violent act or direct exposure to a significant violent act makes the compensable consequence psyche injury eligible for PD and TD, so, in that sense, there’s already overlap with the “shooting, stabbing, or battery” and the same applies for “severe burns.”

But the last component, “severe bodily injuries resulting from the collapse of a building” gives us an idea of how serious the injury needs to be to qualify as catastrophic.  It’s not the effect on the injured worker’s life.  It’s not the effect on the injured worker’s earning capacity.  It’s something akin to being in a building collapse!

Your humble blogger has been doing this workers’ comp game for a while now, and I can tell you that simply being exposed to the workers’ compensation system – as an injured worker, employer, attorney, or judge – should qualify a person for having sustained an injurious exposure of a severe and catastrophic nature.  But we practitioners must brush it off, soldier on, and soothe our wounds with sugared pastries and grapes refined into their superior form.

But an injury that results in an injured worker having to go through the workers’ comp system, being kept in limbo while becoming an unwitting expert in the art of Kafka, does not qualify as “catastrophic.”

Burned to a crisp? Catastrophic.

Shot, stabbed, or beaten up? Catastrophic.

Involved in a building collapse or plane crash or train derailment? Probably catastrophic.

You can’t work anymore so you lost your house because you can’t make payments on it and it’s hard to get hired somewhere else because of a mixture of a shifting economy and the residuals of your injury? Probably not catastrophic.

What do you think, dear readers… is this too much of a stretch?  Or can we say that the legislature has given us an idea of what to expect in a “catastrophic” injury?

Happy Monday, dear readers!

Are we refreshed? Are we relaxed? ARE WE READY FOR WORKERS’ COMP?!?

I know, I know, dear readers, me neither…

Monday mornings are certainly made bearable with a cup of coffee in hand… but wouldn’t a glass of wine make them more enjoyable? Speaking of wine, I present to you the recent panel decision in the matter of Ostini v. Alma Rosa Winery & Vineyard.

Applicant was a hostess in a wine tasting room and sustained an injury when she drove home from work on April 5, 2008 and was in a car crash.  The application was filed on February 6, 2013.  That’s right, dear readers, well within five years from the date of injury, but well after 1 year.

Defendant asserted a number of defenses in rebuffing the claim: statute of limitations under Labor Code section 5405, AOE/COE (presumably citing the going and coming rule), and the intoxication defense of Labor Code section 3600(a)(4) (applicant testified that drinking wine at work was “allowed” but we never get to find out if the employer’s acceptance of an employee drinking on the job somehow translates to being liable for injuries sustained while driving home).

The WCJ ruled that the statute of limitations does not bar the claim because the statute runs from when “the applicant attains knowledge that the injury is industrial.”  The panel, however, reversed, stating that “knowledge of industrial causation is not relevant to the date of injury for specific injuries.”  Tolling could have occurred if applicant had advised her employer of the injury and the employer failed to provide a claim form, but there was no evidence in the record that applicant ever told her employer about the injury.

The WCAB further disagreed with the WCJ’s reasoning that defendant suffered no prejudice as the result of the delay in filing a claim, and thus the statute of limitations could not be raised.  “Unlike the doctrine of laches,” the panel opined “there is no requirement of prejudice for a defendant to invoke the statute of limitations.”

This is an interesting point to your humble blogger: first and foremost, defendant certainly did suffer prejudice in a nearly 5-year delay of filing a claim.  Defendant has lost all rights of medical control and all benefits of medical observation for the period between the date of injury and the date of filing.  Any number of injuries or conditions could have occurred over those five years that would have aggravated or even subsumed applicant’s auto-crash related injuries. 

Furthermore, five years is a long time to expect evidence, whether physical evidence or witnesses, to stick around.  An employee-witness on the night of the injury might be a disgruntled ex-employee five years later!

The WCAB ruled that the claim was time-barred, reversing the WCJ.  Though it took nearly 8 years from the date of injury – a take nothing is a take nothing.  I’ll drink to that!

Happy Friday, dear readers!

It’s no secret that your humble blogger is tickled pink at the idea of technology providing a safer and more cost-effective way of delivering goods and services to the population.  In fact, it’s the opposite of a secret… your humble blogger screams it from the mountain tops and pours it unendingly into the virtual pages of this elegantly named “blog” … so much so that some of my more confused readers have demanded their money back from subscribing.

Anywho, UBER has been in the news recently with respect to its massive litigation in trying to legally answer the question: are UBER drivers employees or… something else?  Well, Bloomberg reports that UBER’s $100 millon settlement has been rejected by the class action Judge.  UBER itself has taken a fairly hard stance saying its ready to continue litigating these cases.

Well, if you’re wondering why – why incur the chilling effect litigation has on investors when you’ve already gotten to the point where you could likely afford to make the drivers employees and still be profitable.  UBER is, after all, no longer David but a Goliath of sorts.

Your humble blogger’s thinking dwells to the Lays of Ancient Rome, as spake brave Horatius:

“Haul down the bridge, Sir Consul;
With all the speed ye may:
I, with two more to help me,
Will hold the foe in play.
In yon strait path a thousand
May well be stopped by three.
Now who shall stand on either hand,
And keep the bridge with me?”

Now, on the naively optimistic chance that some of you are still reading this, allow me to explain further what I mean.

In other news, Bloomberg has reported that Pittsburgh will enjoy the benefit of self-driving cars, with a human-driver supervisor on board, to gradually phase out its purely human-driver UBER cars.  Just think about that for a minute – if the brave attorneys representing UBER in court can delay resolution of the matter long enough, it won’t really matter whether UBER drivers are employees or independent contractors – they’ll all be out of work anyway.  Litigation is a yon strait path, indeed.

UBER is in that unique position where it is experience the outrageous costs of a human work force with modern Labor Laws, but has in its arsenal both the technological network and the monetary resources to replace that workforce with automation.

While UBER does the heaving lifting in forming a breach in legislation for self-driving cars, its lowering the cost of following suit for competitors and other industries.  The general trend across the board is towards replacing human drivers with self-driving cars and trucks (soon to be followed by boats and airplanes).

Think of how much cheaper it will be to get from point A to point B when (1) freight trucks stop for gas and not sleep or food; (2) couriers stop to recharge batteries, not to take breaks; (3) the flow of goods and people does not stop for vacations, sick leave, or injuries; and (4) customers do not have to pay the costs of overtime, workers’ compensation insurance, etc.

Vroom-Vroom, dear readers… and have a good weekend!

Hello dear readers!

As you all know, once in a while I do a blog post here or there on the subject of workers’ compensation. As wonderful as a system as it is, there is a tiny class of Californians that are cruelly denied its benevolent coverage.  I’m speaking, of course, of those entrepreneurs and titans of industry –the small business owner, the partner in a law firm, the shareholder and officer of a corporation – the guys that make the world go round!

Under Labor Code section 3351(c), the term “employee” does NOT include the officers and directors of a private corporation where those officers and directors are the sole shareholders of the corporation, unless they elect to be.  The same goes for “all working members of a partnership or limited liability company” under subsection (f).

Well, the state Assembly Committee on Insurance has introduced AB No. 2883, which would amend sections 3351 and 3352, which would allow an officer/shareholder to be exempt from workers’ compensation coverage only if he or she owns at least 15% of the outstanding stock.  Both partners and officers would have to prepare a written waiver signed under penalty of perjury.

In short, AB 2883 would require action to be exempt from workers’ compensation, rather than requiring action to come under the workers’ comp rules.  Just for fun, ask anyone who has a hard time paying their bills if they would rather have workers’ comp coverage or a pay raise (or a job) and you’ll see why limiting the people who can opt out of workers’ comp even further is not a welcome move.

Your humble blogger respectfully submits that this is, to use a highly technical and legal-based term, a “bad law.”

Why?

BECAUSE SACRAMENTO NEEDS TO LEAVE PEOPLE ALONE!

Not every business owner is a savvy and handsome young adventurer like your humble blogger.  Right now, there are plenty of people who have businesses with no employees and who think (correctly) that they don’t need workers’ compensation insurance because they can automatically opt out.  That’s great – there’s no need for extra expenses and extra paperwork, especially when small businesses are trying to keep the lights on and make ends meet.

Imagine two gentlemen are equal partners in a house-painting venture with no employees.  What if one of them gets hurt?  Is there suddenly an “illegally uninsured” case to be had? Is there liability for whoever hired them as independent contractors to paint a house? Why are we even discussing this…?

I don’t know if this proposal was the result of lack of sleep or a fiercely competitive round of “who can draft the most ridiculous legislation possible” over at the state capitol, but in either case, this is bad law.

California is losing businesses (and residents) every year to other states.  No, they’re not fleeing from AB 2883, but AB2883 is another example of the thinking in Sacramento, and how divorced it is from the people trying to make a living in this State.

So, the next time you’re playing golf with your state assemblyman or drinking coffee with your state senator, mention that your humble blogger says to set AB 2883 on fire, and dance around the ashes singing: “Greg was right; you were wrong; you should have listened all along…”

Happy Monday, dear readers!

Your humble blogger is back at it with a spring in his step and a song in his heart, denying benefits with the left hand and defeating liens with the right.  But, life being so sweet has given this care-free defense attorney a proverbial tooth-ache, so a workers’ compensation post touching on dental treatment is absolutely appropriate.

Recently, the Court of Appeal denied review following a split panel’s decision on an applicant’s claim of right to medical treatment in the form of dental care.

Applicant sustained an admitted injury on June 1, 2004, when she was assaulted by a psychiatric patient.  She sustained injury to various body parts including her tooth and head.  The claim was the subject of an award, issued in February of 2013, which included future medical care for, among other body parts, the tooth and head.  Down the road, a dentist requested authorization to extract tooth 18 and insert a cantilever bridge anchored on tooth 19 and tooth 20.  The treating dentist noted that the fracture to tooth no. 18 was NOT an industrial injury, but its extraction was necessary to fit a bridge on 19 and 20, thereby relieving the symptoms of the industrial injury.

At trial on the dental treatment issue, defendant argued that tooth 18 was not hurt during the original injury, and so was excluded from a future medical award.  The WCJ rejected applicant’s claims, reasoning “[w]hat remains is an effort to bootstrap ‘tooth’ into any dental care that Applicant might require.  Such an effort does not constitute a valid basis for imposing Applicant’s current dental problems upon this employer.”

The WCAB majority concurred that it was too late, more than 5 years after the date of injury, to amend the WCJ’s original award to include all the dental care one could imagine.

My dear readers can probably attest to the fact that dental care can get expensive, especially when the worker chips a tooth for his or her employer, and the employer eats the entire mouth.

The dissent took the position that the unrebutted evidence was that the dentist’s proposed treatment was a prerequisite for treatment of the entire mouth and jaw, and that, as the jaw was part of the “head,” treatment should have been provided under applicant’s future medical award.

Your humble blogger would like to submit that his reading of the available information of this case was that we have something rare before our eyes – a common sense result.  Applicant chipped her tooth during the assault and the future medical care was for the tooth she chipped.

Had she been entitled to future medical care for her lumbar spine, labeled as “back” on an award, that treatment would not have included treatment for skin cancer due to sun exposure to her back.

Nor does an award for future medical care entitle her to treatment for hearing loss, just because her ears (and her hearing) are part of her head.

But, don’t just “get it and forget it,” dear readers – this case could have gone the other way.  Let this be a reminder to us all to be precise in our language when settling our claims with future medical awards to be left open – let us describe in detail the body part injured and the NATURE of the injury.  Future medical care for one harm does not mean future medical care for all harms, right?

Now go out there and get em!