Happy Friday, dear readers!

Your humble blogger hopes you head off into a wonderful weekend fully of puppy dogs and rainbows and all that fun stuff.  But if you are one of those cursed wretches that sees the Labor Code on the back of your eyelids and potential workers’ compensation claims everywhere you go – night and day, work or leisure, foreign or domestic, then I have a post to keep you occupied for the next couple of days.

Often times enough, I’ve found myself muttering that I have the most ridiculous claim of injury ever heard of.  I’ve compared some claims to paper cuts, and others to wounded pride.  Certainly, out there, one of my beloved readers is thinking “I’ve got one to top that…” Well, you don’t.  Your humble blogger has conducted extensive research and has found THE most ridiculous case ever.  This claim lends credibility to the worst of the worst:

The matter is, of course, that of John T. Manchester v. Miller Manufacturing Company (1940) 6 CCC 26.  Mr. Manchester, a mechanic’s helper, was operating a hay grinder when a rod on the grinder broke, striking his glasses and breaking one of the lenses.  That’s it.

The applicant alleged that he sustained injury to his eyeglasses.

The referee held that damage to eyeglasses… you know… inanimate objects that are not part of the human body, were not compensable.  The referee further held that Mr. Manchester is going to have to pay for his own replacement glasses, and not come after the employer for them.

Just imagine that, dear readers – a world where workers file claims for cumulative trauma sustained to their boots, specific injuries sustained to their pants as stains, and amputation claims when a button gets lost during the work day.  We might even have claims filed by domesticated animals.

Fortunately, we’re limited to ridiculous claims to actual human body parts which only manifest subjective symptoms and can be easily cured with large sums of money applied directly to the wallet.

Have a good weekend, folks!

Hello dear readers!

There’s a case making a bit of buzz around our little bee-hive of workers’ compensation, and the sweet, sweet honey is that good faith personnel actions aren’t the might bears we thought they were… I’m out of bee analogies, folk – leave yours in the comments.

Anyways, the case going around is Ferrell v. County of Riverside where the WCAB panel held that good faith personnel actions, as contemplated by Labor Code section 3208.3(h), aren’t just any personnel activities, but are more related to specific interactions between management and employees.

In Ferrell, the employer needed to consolidate its workforce and so applicant, along with her entire department, was transferred to a different department, where they became probationary employees, despite a tenure of more than five years.  She had a new director which she apparently didn’t like, and had to share a car instead of having one assigned to her individually.  Other equipment was pooled and restricted as well.

She claimed this caused her stress and she sought treatment, but was eventually laid off and settled her workers’ compensation case.  The Ferrell opinion that we’ve got to work with is because a lien claimant sought reimbursement for the treatment provided to Ms. Ferrell.

Defendant raised the good faith personnel action and lost at trial, then promptly sought reconsideration.   The WCJ’s reasoning that the budgetary needs of the employer that lead to stressful work conditions were not “personnel actions” as contemplated by Labor Code section 3208.3.  The panel opinion agreed that “[t]he distinction between the effect of working conditions, and the effect of an action directed towards an individual’s employment status” is what made this claim compensable.

Your humble blogger would respectfully direct his enlightened readers to the Court of Appeal opinion in Michael Brooks v. County of Sacramento.  Therein, the psyche AME found that an internal affairs investigation made up 1/3^rd of the cause of applicant’s psyche claim, and another 1/3^rd was from Mr. Brooks’ feelings about his lack of support from his supervisors during the investigation.  The Court of Appeal ruled that Mr. Brooks’ “feelings were his injury, or symptoms of the injury, not the cause of the injury.”

In this case, certainly some portion of the psyche claim was related to the actual working conditions which can be stressful.  After all, stressful jobs cause stress, and stress can be a compensable injury.  But some of the other factors involved here, as per the WCJ’s report, appear to be reactions to good faith personnel actions.  For example, the transfer of employees (rather than simply laying them off) is a good faith personnel action.  As is having to place employees recently transferred on probationary status.  As is any reaction to the management decisions of her new director.

The Brooks opinion tells us that a subjective reaction to a good faith personnel action is part of that action.  How much of any psyche claim is going to be subjective reactions to good faith personnel decisions, and how much will be caused by general stressful conditions?

Happy Friday, dear readers!

Your humble blogger admits that, when I was but a child, just knee-high to a grasshopper, I thought a prosthetic arm or hand was basically what Captain Hook had from the Robin Williams Peter Pan film, “Hook.”  As an aside, if you haven’t seen the movie, you really should – Robin Williams does not disappoint.

What was it? A choice for amputees of either utility (a hook) or aesthetics (a non-functioning prosthesis made took like a hand).

Recently, your humble blogger saw an article about a Mr. Nigel Ackland, who lost his right arm below the forearm in an industrial blender accident and was left without work.  Enter “be-bionic,” which provided Mr. Ackland with a bionic arm, attached at his elbow.

Now, Mr. Ackland uses the bionic hand for “everyday tasks [like] two-handed like driving, typing, shopping and washing his hands.”

Looking at the AMA guides, Figure 16-2, an amputation just below the elbow is worth 57% WPI.  Applying the 1.4 modifier for an injury today, without accounting for age or occupation, you’re looking at 80% PD, which is already a life pension plus the base of $172,042.50.  That’s the PD alone.

And, of course, amputation of both hands is total permanent disability – life pension.

If such a bionic arm and hand set is available, do these numbers still apply?

Think about it – just this one bionic hand brings an injured worker to almost pre-injury functioning.  Surely there’s some PD, and future medical and TD (of course), but are we still in the same category for permanent disability when an injured worker can return to work with such a tool?

The same applies for double amputation – Labor Code section 4662(a)(2) provides for total permanent disability for the “loss of both hands or the use thereof.”  Do we need to start revising this language, especially as it appears that one can “lose” both hands but retain “the use thereof” through bionic ones?

Your humble blogger submits to you that we must come to realize that much of the language and thinking surrounding workers’ compensation is rooted in somewhat obsolete thinking about the nature of industry and the practice of medicine.  Should an army field medic equipped with today’s techniques and tools be guided at all by a Civil War era surgeon, who primarily focuses on amputations? The phrase “chop-chop” now means to hurry, but during the days of what some refer to as the “Northern War of Aggression,” it was basic medical doctrine.

Have a good weekend!

Happy Wednesday, dear readers!

Your humble blogger made the grave mistake of looking at recently proposed workers compensation legislation, and, as we all know, what once is seen cannot be unseen.

State Senator Tony Mendoza has introduced Senate Bill 1160, which will, among other things, lift the cap on 24 chiropractic, occupational therapy, and physical therapy visits as provided in current Labor Code section 4604.5 for physical medicine and rehabilitation services.

Seriously guys… what the heck? As the kids say these days…

Chiropractic care was limited as part of SB-899 to 24 visits, unless the defendant authorizes more visits in writing.  Why?  Because chiropractors tended to award more PD and more TD based on subjective complaints, and they tended to run up the bill on “treatment,” often with no medical gains for the injured worker but a big bill for the defendant (and all the applicant’s co-workers kept wondering “why don’t we ever get a raise?”)

This is bad news for California and yet another effort by all the folks that buy their vacation homes from the suffering of injured workers to roll back the gains made in workers’ compensation reforms.  Hopefully, the more influential players in California will catch on to the negative effects of this bill and promptly move to stomp it out.

Then again, perhaps the bill is not meant to pass, but just another DOA piece of legislation to show the voters where everyone stands.

Hello, dear readers!

Your humble blogger is back from his short (but well-earned) hiatus and brings you a report on a case recently denied review by the Court of Appeal: Ortega v. City of Guadalupe.  Therein, a police officer sustained an admitted injury to the back and psyche.  He was placed on paid administrative leave for about 41 weeks, and then was placed on temporary total disability after his employment ended.

So… what’s the problem?  Defendant took credit for the 41 weeks of paid administrative leave against the 104 week cap of Labor Code section 4656.  Naturally, applicant and his attorney had a problem with this, as… well… MONEY!

The parties proceeded to trial on this sole issue – can paid administrative leave paid by the employer be credited as temporary disability benefits?

Well, the WCJ and the WCAB gave a pretty fairly resolute “No.”

As the WCJ and the WCAB reasoned, paid administrative leave is, technically, “working.”  As applicant was earning wages, even as leave being a form of “modified” duty, where the modification is to do no work, these were wages and not wage loss.

In one sense, this is perfectly reasonable: applicant was hired with certain rights and responsibilities and benefits.  Among them paid administrative leave was included as part of the terms of employment, and the available money for wages was likely reduced to account for this other benefit (in lieu of, for example, unpaid administrative leave).

But, on the other hand, the guy is not actually working.  There’s no benefit being conveyed to the employer through this applicant’s labors while he is on administrative leave, and there are further losses to the employer – someone has to pick up applicant’s shifts and duties while he is on leave.

How does it apply to those employers in the private sector?  Well, there are going to be times when employees are entitled to various benefits that include them not doing any work but earning wages.  Some employers offer paid sabbaticals.  Certainly, it is conceivable that as part of a contract for employment, employees will demand a provision for paid administrative leave during administrative review of any lay-off or termination appeal.  Employees sometimes even use paid vacation to avoid taking a hit on their earnings while unable to work or while the injury is still in dispute.

Although wage continuation benefits under Labor Code section 4850 go towards the 104 week cap, at least according to the Court of Appeal in Knittel, wages that come directly from the employer (even the self-insured employer) rather than as a workers’ compensation benefit, might not be credited against temporary disability limits.

Perhaps this is something that can be remedied with legislation – the injured worker isn’t “working” unless there is actual benefit to the employer being conveyed.  Until there is such legislation in place, employers and insurers should be wary of claiming TD credit for non-TD benefits.

Happy Friday, dear readers!

Your humble blogger has heard many-a-whispers of a case making the rounds (Alvarenga v. Scope Industries) discussing the interplay of Medicare Set-Asides (MSA) and Compromise and Release settlements.  From the looks of it, the parties entered into a C&R which was approved, but then defendant sought to set aside the Order Approving on the grounds of mutual mistake, to wit, that the MSA did not require Centers for Medicare & Medicaid Services (CMS) approval.

The case is an interesting one for many reasons.  The WCAB provided a discussion of CMS procedures and ultimately did rescind the order approving compromise and release, but not because of any allegations of mutual mistake – the WCAB found the settlement inadequate and that applicant was not properly advised of the impact the C&R would have on his Medicare benefits going forward.

With respect to CMS and MSA the WCAB panel noted that if the injured worker is (1) a Medicare beneficiary; or (2) has a reasonable expectation of becoming a Medicare beneficiary in the next 30 months, the parties must protect CMS’s interests.  In other words, you can’t just shift the obligation to pay for medical treatment for an industrial injury onto the federal government.  (42 USC sec 1395y(b)(1); identifying Medicare as secondary payer to workers’ compensation).

CMS, out of a workload consideration, won’t even review (and thus won’t approve) settlements for under $25,000 where the injured worker is a Medicare beneficiary, or $250,000 where the injured worker may become a Medicare beneficiary.

Accordingly, the WCAB pointed out that there is no requirement of CMS approval at all, and that approval by CMS of a Medicare set-aside will only be available to the parties when the workload threshold is met as above.

However, the settlement was still set aside on adequacy grounds.  The MSA came back at $24,079.23, and the C&R was for $39,000, less $11,040 for PDAs and $5,850 for attorney fees.  So the applicant was left with less than enough to cover the medical expenses as projected by the MSA.  But, had applicant’s counsel waived the attorney fee on the MSA portion of the settlement, the “new money” would have been $24,079.23 for the MSA and an additional $1,642.66 for applicant.

But… isn’t the attorney supposed to take a fee out of the MSA amount?  The WCAB has held that attorneys get a piece of the MSA as part of their fee.  Let’s take a case where the parties are five years out past the date of injury (so no chance of a new and further claim) and all TTD and PD has been paid (prior to representation of the injured worker).  All that’s left if the future medical care and for whatever reason, applicant is not entitled to a voucher.  If the MSA comes back at $24,000, and there’s no other benefit to settle, either the applicant’s attorney is entitled to a fee off the  $24,000 C&R, in which case there’s not enough money left to fund the MSA (leaving just $20,400/$24,000) or the attorney is not entitled to a fee.  Which one is it?

Additionally, the panel held that the C&R is inadequate because “based on the language contained within the C&R, it does not appear that applicant was adequately advised of the effect of the parties’ failure to conduct CMS review of the MSA.  If the parties wish to enter into a C&R with an MSA arrangement without obtaining CMS review, applicant should be advised of the fact that CMS may withhold future Medicare benefits if CMS deems the settlement to be inadequate.”   Well… in that case… why is there an attorney fee at all?

The injured worker is ponying up 15% of his settlement for a reason – the attorney is there to advocate for his interest and to advise him of his rights and risks in litigating his case.  If the burden is on the defense to advise a represented applicant of the effects of a settlement, should the WCAB award that 15% right back to the defendant for doing the applicant’s attorney’s job?

As a workers’ compensation defense attorney, I have the privilege of working with lots and lots of applicant’s attorneys.  Some are nice, some are jerks.  Some are competent, and some aren’t.  There are some that put the injured worker’s interests first, and some that will guide their clients by the nose to the operating table for needless but crippling surgeries.  But in all of these cases, the injured worker has his remedy: if the applicant’s attorney breaches his duty of loyalty and competency, there are available actions such as (1) state bar discipline; and (2) malpractice actions.

It’s hard enough being a defendant in California’s workers’ compensation system – let’s not make defendants serve the role of a second applicant’s counsel as well!

Alright, dear readers, bear with me, because you’re about to get a dose of two-parts nerd and two-parts dork.

For the longest time, Nintendo has had a franchise called “Pokemon” in which the players collect and train fictional monsters.  Well, modern technology has allowed this franchise to go one step further: the Pokemon Go game allows players to use their GPS and a basic map function to search for these monsters in the real world, and to “catch” them by using the phone’s camera function.

If I haven’t lost you yet, dear readers, I’m about to tie this into workers’ compensation.

The “monsters” appear just about everywhere, but especially in publicly frequented areas and businesses – at Whole Foods by the deli, on the street in front of Pottery Barn, in the waiting room at the local Dignity Health hospital.  You know where else they appear?

While crossing the street.  While driving. While standing in a dangerous area.  This addicting little game which seems to be garnering a lot of attention on social media is also providing a vehicle for a lot of accidents and injuries.  Not only can employers expect their own less-attentive workers to sustain injuries due to being oblivious or taking ridiculous chances while going about their duties, but third parties can be expected to be careless as well.

A Man “catches” a monster as his wife gives birth.

Just a thought, dear readers – given this latest craze, employers left and right can expect to lose productivity from their employees as they chase virtual monsters all around them.  Let’s not double the loss by seeing a spike in “work-related” injuries.

Some ways to combat this?  Well, if the employer provides the actual phones for the employees, care should be taken to restrict which applications can be loaded onto the phone (hint: Pokemon game should probably be blocked).

If the employees are bringing their own phones, clear instructions should be made to ban such activity, and, really, the careless use of the phone while walking around or driving.

Finally, if there are any injuries reported that make you scratch your head and ask “who could possibly be THAT oblivious?!?” it’s time to investigate possible smart phone use.  Even if this doesn’t lead to an outright denial of the claim, it may give rise to a reduction of employee benefits under Labor Code section 4551 (employee serious and willful misconduct).

Work restrictions: the patient is prohibited from any law enforcement activity.  However, he is able to participate in strongman competitions.

Crazy, right? Well, welcome to California, my friend!

Happy Monday, dear readers.  We’ve all heard of Bogdan, the world’s strongest man:

But in our corner of the world, California has its own “strong man” competitions and recently, charges have been filed against a Santa Barbara police officer for competing in strongman competitions while receiving disability benefits.

Presently, this is just an allegation, but we’ve seen similar instances on this blog such as (1) firefighters competing in MMA; and (2) professional dancers performing in car commercials as hamsters while on disability.  Accordingly, this wouldn’t be the first time allegations have flown of an injured worker displaying disability for the worksite and super-human ability away from the eyes of the employer.

Until details emerge, of course, the office charged is entitled to the benefit of the doubt.  Not all injuries preclude all physical activities, and if the strong-man competitions were made under physician supervision, there’s an argument against a finding of Fraud.

The takeaway, for us in the workers’ comp world is that it makes sense to check up on people.  The longer the claimant is on TD, the more it makes sense to check up on him or her.

Most investigator offices will offer you services in the form of a social media or online check, but there are a few basic tricks you can do yourself:

1. Have you done a basic search on Facebook or Twitter?
2. Have you set up a google alert for your claimant’s name?
3. Have you checked any professional updates on LinkedIn?

Just some ideas, dear readers.

See you on Wednesday!

Helllllllooooo dear readers! Your humble blogger is taking a quick break from his BBQ and his fireworks and his flag waving to wish you a happy independence day!

Given the recent news out of Great Britain, it seems like it would be a bit of the ol’ hypocrisy if the Crown were to hold a grudge against the U.S. of A for shrugging off the control of a distant empire.

Anywho – I hope you folks get to enjoy the day and, if you’re really such a glutton for punishment that you’re reading this blog post on Monday, I offer you these thoughts:

We are a people who engage in self-governance.  Whether on the Federal level or in the halls of power in Sacramento, we are, effectively deciding our own fate.  Accordingly, we have exactly the legislature we deserve and exactly the workers’ compensation legislation we have chosen (collectively speaking).  I know this is a thought that is likely to induce nightmares, but it is also a cause for hope: we still have it in us to fix the problems we deal with on a day to day basis.  That’s a reason to wave our flags, grill our burgers, and blow up small pieces of our air-space today.

Here’s another thought – just something else to consider: We often give thanks to our veterans, especially on days like Independence Day.  Freedom is won and freedom is kept not by the benevolence of our would-be conquerors, but, often enough, by the courage and blood of our armed forces.  The best way to thank the men and women who served and survived injury for our country? Be mindful of your fireworks.

It comes as little surprise that explosions overhead of brightly colored fireworks can bring back memories of explosions everywhere of not-so-bright IEDs, RPGs, and a whole host of small arms.  Be mindful of the veterans that live near you and don’t turn their 4th of July into another Fallujah rerun.

Ok – that’s all I’ve got.  Let’s have some fun, celebrate, and get back to work tomorrow with a new zeal to see claims denied!

In Russia, they call it “Dein.”  In Israel they call it “Yom.”  In Spain (and most of South America), they call it “Dia.”  And, in California’s workers’ compensation system, we call it confusing.

What is a day? When does it start and when does it stop?

In the recently writ denied case of Green v. Elle Placement, an RFA was received by facsimile at 6:18 p.m. on Friday, April 17, 2015, and a UR denial issued on Monday, April 27, 2015, at 6:18 p.m.  Treating the RFA as received on Monday, April 20, the following Monday, April 27, 2015, would have been the 5^th working day.  Was a 6:18 p.m. facsimile late? Or was it still part of that 5th working day?

Well, the matter proceeded to trial (this is for an artificial disc replacement arthroplasty and two days inpatient stay, so it is probably worth the litigation dollars), and the WCJ found that if a business day ends for an RFA at 4:30 p.m., then the business day likewise ends for a  UR denial at 5:30 p.m., rendering the UR decision invalid as untimely.

The WCJ cited Labor Code section 4600.4(a), which states that “a workers’ compensation insurer … shall ensure the availability of [UR] services from 9 a.m. to 5:30 p.m.”

What was defendant’s response?  The decision was made in on the 5th day, prior to the 5:30 p.m. cut-off, as required by Labor Code section 4610(g)(1) (“prospective or concurrent decisions shall be made in a  timely fashion that is appropriate for the nature of the employee’s condition, not to exceed five working days from the receipt of the information reasonably necessary to make the determination…”) but the communication of that decision affords an additional 24 hours.

After ruling that the UR decision was untimely, defendant sought reconsideration.  The WCAB panel granted recon, noting that the 5-day limit of 4610(g)(1) applies once the reviewer has all the necessary information, and, in this case, “there is no evidence of when the UR reviewer received the information reasonably necessary to make the determination.”  Furthermore, the panel majority found that there is no evidence indicating the determination was untimely and that the likely scenario is that the determination was made during regular business hours, and only communicated after 5:30 p.m.

The dissent argued, instead, that there is no support for the contention that the act of communication adds 24 hours to the 5-day limit to make a determination, and would have denied reconsideration.

Granted, dear readers, this is a split panel decision, writ denied though it is.  It has no binding precedent and, at best, indicates the inclination of each of the respect commissioners in interpreter the relevant codes and statutes.  There’s no binding precedent here.

But, that being said, what is the guidance from this opinion as to the following questions:

Does a working day or business day end at 5:30 p.m.?  Can this time limit be applied to the day calculations?  For example, Labor Code section 4062.2 allows a party to request a panel on the “first working day that is at least 10 days after the date of mailing…” a request for evaluation or objection.  But the California Code of Regulations section 30(b) treats all panel requests made after 5:00 p.m. as being received on the next day.  It would appear that this panel decision would hold that the “first working day” would effectively start at 5:31 p.m. on the previous day, but the regulation would instead place the cut-off at 5:00 p.m.  Panel dispute trials have been held for less.

Here is another thought – who bears the burden here?  The majority noted that “there is no evidence of when the UR reviewer received the information reasonably necessary to make the determination.”  Does that mean that the burden is on the applicant to prove when all necessary information was received by the UR physician?  Short of the PTP faxing all relevant reports with the RFA directly to UR, how would this be established?

Also, the majority rejected the inference that the determination was made at the same time as the communication (after 5:30 p.m.)  Who bears the burden in documenting when the determination was made?  Is the determination automatically the date of the report?  But what if the report was written 25 hours prior to being communicated?

This is a great decision for the defense, and hopefully it will be adopted by more commissioners as these cases come up again and again.  However, your humble blogger submits that the defense community would be better off in avoiding the exposure from the get-go: given the state of telecommunication, it isn’t that difficult to fax a UR report prior to 5:30 p.m.