Happy Wednesday, dear readers!

We are all back in full swing and your humble blogger brings you the sweet news of a claim denied.

The case is that of Garcia v. Lai and UEBTF.  In this one, applicant was a handy-man and maintenance worker, hired regularly by the alleged employer to perform work on the rental apartments that Mr. Lai kept as his business.

To sum up the facts, applicant sustained an injury to the eye in 2012 while fixing a water leak at Mr. Lai’s home and personal residence.

As it happens, applicant did regular work for Mr. Lai at Mr. Lai’s rental properties, and the work was pretty much the same, and applicant did not have a contractor’s license.

So, of course, the applicant claimed benefits, and began the usual scramble of the usual suspects:

Applicant sought benefits as (1) an employee of the homeowner (insured by State Farm); and (2) an employee of an illegally uninsured employer, dragging in the Uninsured Employer Benefit Trust Fund.

The defendant, however, was not going to take this Lai-ing down!  (See what I did there…?)

Both entities raised their respective defenses: State Farm argued that because applicant did not meet the requirements set out by Labor Code section 3352(h) (excluding, from the “employee” category, anyone working less than 52 hours during the past 90 calendar days prior to the injury).

Along the same lines, UEBTF claimed that because applicant was excluded from employment under 3352(h), UEBTF was, likewise, off the hook, and so applicant was to be left in the cold.

But, what if applicant was performing work on defendant’s personal residence as part of his general employment of working on defendant’s residential units?  The parties were the same, as were the job duties and the payment.  The WCJ, however, rejected this theory, instead concluding that applicant was hired solely for the personal home of defendant, rather than for the business, and so his claim was barred by section 3352(h).

On reconsideration, applicant advanced the same theory – defendant was personally liable, as an uninsured employer, with UEBTF providing the back-up deep pockets should defendant fail to pay.  The majority panel found that, because the home upon which applicant worked was not part of that group of units let out for rent, defendant hired applicant as a homeowner… one that also happened to be a landlord of other properties let out for rent.  Accordingly, the panel denied reconsideration.

The dissent reasoned that the job which resulted in applicant’s injury was part of “an ongoing relationship over the course of years and multiple jobs.”  The duties and locations varied, and sometimes defendant even got applicant jobs with other property owners.   The dissent would have found that applicant was an employee of defendant’s business rather than performing work for a homeowner.

A lot of these jobs, especially done between people who have regular relationships, are done with handshakes.  There typically isn’t a separate contract for every single job or assignment.  Small business owners, like landlords, might even use one e-mail address for all correspondence, business and personal.

So what’s to be done?

Obviously, better record keeping (job assignments, e-mails, and contracts) and workers’ compensation insurance for the renting entity would have solved a lot of these problems for Mr. Lai, but the extra diligence and cost would likely have impacted the viability of his operation.

On the other hand, this case provides at least some guidance – the law will likely draw a distinction between work done at an employer’s home vs. the regular business.  What happens, then, when the employer re-deploys his employees to help him move, even though the moving has nothing to do with the regular work, and the boss pays them in cash?

Just some more craziness to think about, dear readers.

Hello, dear readers!

Welcome to 2016 – your humble blogger has missed you greatly, and is excited to make this year the Year of the WC Defendants!  We will sanction the lien claimants; we will make a mountain of 5710 fees denied by the WCAB; and hang from the battlements enlarged copies of IMR affirmations of UR determination denying $25 seat cushions…

Anyway, since we’re all just trickling in from vacation, I thought I’d offer a quick recap of some of the things that we get to look forward to as of January 1, 2016:

As you will recall, minimum wage is California has gone from $9/hr to $10/hr, although local governance might have the rate even higher still.  You may want to adjust TD calculations accordingly if you have any full-time minimum wage earners.

Mileage reimbursement goes down to 54 cents per mile (from 57.5 cents)

Assembly Bill 202 took effect on January 1, 2016, statutorily moving cheerleaders for professional sports teams from independent contractors to employees, entitled to workers’ compensation benefits.

Additionally, any liens filed prior to January 1, 2013, for which there has not yet been an activation fee paid, are dismissed by operation of law, as of January 1, 2016.

Finally, for injuries sustained after January 1, 2016, the TD rates are at a minimum of $169.26 and the maximum is $1,128.43.

What do you think dear readers? Has your humble blogger missed anything of significance?

Happy New Year, dear readers!  I’ll see you folks, bright and early, next Wednesday!

Hello, dear readers!

Your humble blogger wishes you a very happy Monday – and it truly is!  The Christmas lights are out, the offices are (almost) all closed for the holidays, and the schools are closed as well, flooding the normally calm lives of parents with their idle children.  But not only the cheerful among us are busy this holiday season.  Just as we take moments to reflect on the wonderful life we have bearing witness to science, technology, and innovation cure all the ills of mankind, the Grinches of the world are busy stealing Christmas and the Gubmn’t of California is moving to stifle advances.

Reportedly, the DMV has proposed regulations that would essentially make self-driving cars illegal in California.

According to this draft, “[a] licensed operator will be required to be present inside the vehicle and be capable of taking control in the event of a technology failure or other emergency.  Driverless vehicles are initially excluded from deployment.”

This is only a draft, and it’s supposed to be for a 3-year period only, but you can imagine what effect this is going to have on investors and manufacturing.  Hopefully not too much so that your humble blogger can spend his driving time on blogging instead.

Hearings are being held on January 28, 2016 in Sacramento and on February 2, 2016 in Los Angeles to address these proposed regulations.

The benefits of self-driving cars are pretty clear: release of labor currently occupied in driving professions, freedom and mobility for those physically unable to drive, fewer accidents, etc., etc., etc.  What self-driving cars mean for the state is less in tax revenue from wages of drivers, fewer traffic tickets, and an evaporating demand for public services like transportation.

Sure enough, the DMV is already lining up make it harder for us to replace a lot of the workings of California with something that actually works.  Let’s hope that this draft is revised before it’s implemented.

Happy Wednesday, dear readers!

Have you ever thought about the fact that if you’re a camel, every day is hump day?

Anywho, your humble blogger brings you a wonderful case today from the Oakland Board (or, as the kids say “straight outta Oakland”).

The case was excellently discussed by the Lexis WC community here.  In Mesanovic v. Specialty Termite, applicant sought to rebut the PDRS with the same type of report that was so masterfully deconstructed and discarded in the Dalh decision by the Court of Appeal.  The vocational rehabilitation report, while acknowledging that the applicant was amenable to rehabilitation,

The WCJ rejected applicant’s theory that the permanent disability rating schedule should be rebutted “because applicant’s future earning capacity had significantly been impacted by his work related injury.”  The WCJ noted that applicant had a sporadic work history, ranging in hourly wages from $8.75 to $22, but had never held a job for more than a year.  Under the rehab expert’s calculations, the applicant could have gotten a job paying $19 per hour.  So, the WCJ noted that there was no loss of earning capacity.

The WCJ also noted that the expert does not explain why the applicant could not retrain and get a new job or new career, the age at the time of injury being just 25.  After all, isn’t the burden of rebuttal on the party seeking to do the rebutting?

Of interest is that the trial in this case was in June and the decision was issued in August, so well before the Dahl opinion issued in September.

The WCAB denied applicant’s petition for reconsideration of this finding.  The panel opinion notes that on page 11 of the expert’s report, he notes that because post-injury jobs have been identified that the applicant can perform, “a discussion of rehabilitation” is rendered “irrelevant.”  As your humble blogger call tell you from observing the oral arguments in Dahl, the expert’s labeling a discussion of rehabilitation as “irrelevant” was not well received by the Court of Appeal.

The commissioners, now with the benefit of Dahl’s guidance, were able to clearly rebuff applicant’s efforts to rebut the PDRS.  The first step in the analysis is and must be that the injured worker would not be amenable to rehabilitation.  And, more importantly, being amenable to rehabilitation DOES NOT mean that rehabilitation would restore applicant to a pre-injury condition – that’s what the permanent disability benefits are for in the first place, to bridge the gap between pre- and post injury status.

What we’re seeing with this case is Dahl mopping up a mess that existed before Dahl – the regular efforts of applicants to increase the level of PD through such expert reports should taper off because of the rock of Dahl from one end and the hard place of Labor Code section 4660.1, which completely eliminates diminished future earnings capacity from the rating equation.

All in all, dear readers, good news!

Happy Monday, dear readers!

As many of you are traveling for the holidays, I figured I’d give you a little insight into life of days gone by.

Back in the days of the Cold War, as children in the West were already growing tired of their Christmas presents, their soviet counterparts saw the approach of New Years eve, which brought with it visits from “Ded Moroz,” a soviet version of Santa Clause who was muscular and aggressive.

Unlike American Children, soviet children looked forward to gifts of coal, which ensured survival of the cold winters.  January 1st brought with it both the start of a new year and presents, a secular Christmas of sorts.

Had the Soviet Union won the Cold War, Americans would be enjoying unwrapping potatoes and coal today (fortunately, it went the other way).

This January 1st, however, some Californians will still get to unwrap a present of sorts, provided by their benevolent government.  As of January 1, 2016, California’s state-wide minimum wage goes from $9 per hour to $10.

In places like San Francisco, where the minimum wage is already $12.25, there won’t be much of a change, but not all counties and cities have a minimum wage which exceeds the State’s.

What does this mean for us in the workers’ compensation world?

Well, let’s say that you have an injured worker who was making minimum wage at the time he sustained injury ($9/hour).  At 40 hours per week, that would be $360 per week, entitling him to TTD at a rate of $240 per week.  Well, as of January 1, 2016, had he not sustained an injury, he would likely be earning $400 per week, which would generate a TTD rate of $266.67 per week.

But wait, temporary disability benefits are set by average weekly wages, right?  In fact, Labor Code section 4453(c) pretty clearly lays out how to calculate average weekly wages “[w]here the employment is for 30 or more hours a week and for five or more working days a week” and that’s to multiply daily wages by working days in the week.  Simple, no?

Not so fast.

There is a long string of cases which have held that post-injury developments, including completion of studies and union raises, result in an increase in the average weekly wage calculation.

So, realistically, we can expect demands for minimum wage workers to increase temporary disability benefits to account for the minimum wage increase.  On the bright side, all things considered, this really isn’t a lot of money, and it might be better to pay it now rather than having it come up at an MSC and be the subject of a penalty petition.

Till next time, comrades!

Happy Wednesday, dear readers!

You know, in observing the “gig” or “sharing” economy, your humble blogger is noticing a pattern: legislation and regulation that is too old is trying, but failing, to understand new and advanced technology and methods which were designed with an eye to solving the problems of the old ways of doing things.

It’s like the Flintstones drafting legislation to govern how the Jetsons are going to feed their shiny dinosaurs. 

But, keeping this in mind, I ran across two interesting stories I’d like to share with you today.  The first is from the New York Times, with a study by the Economic Policy Institute.  A study of Walmart’s 2013 activity suggests that the $49 billion spent by Walmart for imported goods from China “displaced over 400,000 jobs in the United States between 2001 and 2013.”  That means that Walmart was prepared to suffer the delays in over-seas manufacturing and transportation, as well as the cost of the transportation over sea and ground, rather than pay the wages, taxes, and costs or regulatory compliance in the United States.

If this study is to be believed, that’s probably 400k manufacturing jobs that the United States forfeited to China, although there’s no guarantee that any of them would have been in California.

In the face of this story, you have another — Adidas is planning to start shifting its production from China and other Asian countries to Europe.  How?  By opening an almost entirely robotic factory to manufacture shoes.  No more labor costs, or dealing with the costs and delays of international manufacturing.  There would, presumably, be less concern of copy-factories being set up across the street and making knock-off shoes.

Adidas is claiming this new factory is going to be in addition to rather than instead of Asian production, but, realistically, if this factory proves itself cheaper and more efficient than overseas production, why wouldn’t Adidas start manufacturing everything local to the markets that demand their goods.

If these and similar stories are an indication of things to come, the news is both good and bad for Californians, depending on who you ask.  The good thing is that manufacturing may soon return to California – money will be spent and re-spent locally, instead of being sent overseas.  But while the manufacturing might return, the manufacturing jobs probably wont.  There will be highly skilled engineer and programmer jobs, sure, but a lot of the traditional jobs might disappear.

But, what changes slower than the market? The law.  The law that exists specifically to address issues in these industries that might vanish will stay on the books for years to come.  California would do well to start the process of change now, and welcome new industries into the state.

I know, I know, the Flintstones of the world are thinking “Rock hard.  Rock good. Me like rock. Rock legal standard.”  But the time is quickly approaching for that kind of thinking to follow the dinosaurs into the movies, and to give way to the Jetsons and the Jetsons way of life:

“The slave driver! Imaging putting you back on a four day week.  What does he think this is? The 20th Century?”

You know, dear readers, your humble blogger, much like American’s first president, cannot tell a lie.  I wasn’t going to do a blog post for today.  I figured it’s Friday, and my beloved and infinitely patient readers probably need a break from my petty puns and hand-wringing frustration.

But then I saw the case of Smith v. Walter Claudio Salon & Spa, recently denied review by the Court of Appeal.

After applicant Smith claimed injury to various body parts, including her right shoulder, defendant hired a private investigator to do what private investigators do very well – let everyone see what the applicant is like when the applicant thinks no one can see.

So, when applicant went into a gym, the investigator purchased a “day-pass” and let the applicant work her magic for the camera.

Well, defendant wanted to have the AME to review and comment on the sub rosa footage (your humble blogger hasn’t seen the footage and can only guess what was on it to prompt such a strategy – after all, why waste the time the AME’s time having him watch a movie that confirms the subjective complaints?)

Applicant objected – this video was an invasion of applicant’s privacy!

The WCJ held that, as the video was taken in plain sight of members of the public, any one of which could have purchased a day pass to actually use the gym, there was no expectation of privacy.  Applicant sought reconsideration (which, given that this is a discovery order, should have been a petition for removal) and the WCAB treated the petition as one for removal and denied it as well.

The Court of Appeal likewise denied review.

This brings to mind a similar case, where an applicant’s contention that the sub rosa film should be excluded because the investigators violated the “no videotaping” and “no trespassing” signs of a local business.   Likewise, those contentions were rejected by the Board.

Seriously, though, folks – what expectation of privacy does an injured worker have with respect to the very issue being claimed in a case?  Couldn’t this line of reasoning be used to answer every single deposition question with “I’m not telling you that – it’s private!”  If you wanted this to stay private… why file the claim in the first place?

Have a good weekend, dear readers!

Happy Wednesday, dear readers!

My plan for today’s blog post was to provide you with a list of 10 reasons why, when you have something you need to do, procrastination is not acceptable.  Unfortunately, I kept putting this assignment off, so I didn’t get to it in time for today’s post.

Instead, I bring you the case of Walker v. WCAB.  By way of background, back in 2013, California was in a middle of a mass hysteria of blood-lust for professional athletes.  Basketball players were herded together, only to be tarred and feathered.  Angry mobs descended on hockey players, pouring warm water over ice skating rings to create potholes, and burning copies of the Mighty Ducks.

In response, to pacify the angry hordes taking to the streets, the Legislature offered Assembly Bill 1309, which limited out-of-state professional athlete claims for workers’ compensation.  As part of the language of the bill, it “would provide that these changes apply to all pending claims for benefits filed on or after [Sunday] September 15, 2013, as specified”.

In Walker, it looks like the applicant filed his application on Monday, September 16, 2013.

The parties were in agreement that, if AB1309 applies, the claim is barred, but applicant argued that CCP section 12a and section 10508 (allowing an additional day to perform an act if the last day to act falls on a Saturday, Sunday, or Holiday), means that the claim should not be barred, because, as the law went into effect on a Sunday, all those injured professional athletes should have an extra day to file their claims.

The WCJ agreed, and found the claim is NOT barred.

Well, on appeal, the WCAB reversed, finding that CCP 12a and section 10508 turn on the last day to perform an action.  To the WCAB’s reading, AB1309 did not provide a last day to perform an act, but rather applied additional conditions to filing a claim, such as requiring a minimum amount of time in the State of California prior to filing a pro-sports CT claim.  Accordingly, 12a and 10508 do not apply.  The WCAB ruled the claim is barred.

The COA denied review of the WCAB’s ruling.

Now, your humble blogger is all in favor of claims being denied, but let’s think about this one for a second – AB1309 did not explicitly provide a statute of limitations, BUT it did create conditions which put an expiration date on certain claims.  Given this, isn’t there an implied “last day to perform an act”?  Because the law went into effect on a Sunday, Mr. Walker’s last day to file his application would have been a Saturday, which would have extended his last day to file, as applicant argued to begin with.

Another thought, dear readers — since the world has not ended, and we’re all still here, is it time to consider expanding the effect of AB1309?  Why just professional athletes?  Why only some sports?

What about the guy visiting California to attend a conference in the insurance industry?  What about the lady who is in California temporarily to conduct a job interview of a potential hire from a local law school, only to claim a CT in California for her carpal tunnel syndrome?  Perhaps we need legislation to require a minimum amount of time in California for ANY CT claim.

Perhaps you’d be interested in joining your humble blogger’s fantasy legislation league?

Happy Monday, dear readers!

Your humble blogger hopes you enjoyed Thanksgiving, and are ready for the dare-devil sprint down towards Christmas and New Years’.  I for one am typing this with labored breath, as Thanksgiving Dinner has caused the humble blogger’s empire to expand its borders.

An interesting thing happened on that “iffy” day which some people refer to as “Black Friday.”  Some people were actually going to work!

Is Friday a working day?

Well, for many people it is – especially all those people trying to avoid being trampled while frantically restocking store shelves.

California’s list of officially recognized holidays includes Thanksgiving, November 27, but it also include Friday, November 27, which, since times of yore, was called “Day after Thanksgiving.”  As much as I dislike Black Friday, it has a nicer ring to it.

Ok, so it’s a holiday too? Because, as far as the Federal Gubmn’t is concerned – it isn’t.  So, last Friday, whether you were there to receive it or not, the Post Office delivered your mail.  So much for the Supremacy Clause of the Constitution…

As you will note, not every day, even one cherished and celebrated for years on end, is a holiday.  California continues to refuse to recognize “whacking day,” despite all your humble blogger’s efforts to include this great state to the contrary.

Anywho, various timelines require calculation of “working day,” including panel request dates (Labor Code section 4062.2(b) – “no earlier than the first working day…”); and five working days to authorize change of physician (Labor Code section 4601) (among others).

Unfortunately, working day seems to be vaguely defined.  If a particular company decides to close its office in observance of a non-State holiday, is that a working day?  If, by contrast, California recognizes the day after Thanksgiving as a holiday, but the adjuster sitting in an office in Texas is working, does that count as a working day?  In the absence of clear guidance, perhaps there is a triable fact to wiggle a settlement on a particular issue, depending on the facts.

The next time we have a round of reforms, we really should define what a working day is.  Perhaps “any day, other than Saturday, Sunday, or an official State Holiday.”

For now, it looks like having room for improvement in regards to the clarity of our Labor Code is just one more thing we have to be thankful for.

Gobble Gobble, dear readers!

Hello, dear readers!

Your humble blogger wishes to send you an early but heartfelt wish for a Happy Thanksgiving!

Please be safe out there and, should you participate in the ritual human sacrifice known as “Black Friday Shopping” please remember that no amount of money is worth trampling over someone (or being trampled over).

Cheers!