What does a gathering of former romantic interests on one hand and an unlawful communication with a medical evaluator on the other have in common?  Both are called “ex-parte.”  Get it?

Yeah, I know, I know…

So, dear readers, your humble blogger brings you now the story of Vallem v. State of California/SCIF, a recent panel decision originating in Stockton.

Applicant’s claim for injury to the heart and psyche was resolved by way of stipulation, with 47% permanent disability and future medical care included.  The parties had used an AME, but, as the matter was pending on the issues of applicant’s petition to reopen, applicant had apparently called the AME to set an appointment for treatment at the advice of his primary treating physician.

Defendant sought an order striking all the reports and transcripts of the AME, and to obtain an order for the Medical Unit to issue a QME Panel.

The Petition was denied and, on removal, the WCAB concurred with the WCJ, who had relied on the Alvarez case for the proposition that “an ex parte communication may be so insignificant and inconsequential that any resulting repercussions would be unreasonable.”

Just thought thoughts from your humble blogger:

One of the amendments of SB-863 was to draw a line between QMEs and AMEs in terms of communication:  Labor Code section 4062.3(f) provides that “[o]ral or written communication with physician staff or, as applicable, with the agreed medical evaluator, relative to nonsubstantial matters such as scheduling of appointments, missed appointments, the furnishing of records and reports, and the availability of the report, do not constitute ex parte communication…”  So, calling the AME to schedule an appointment, whether for treatment or an evaluation, should not constitute ex parte communication on its face.

Additionally, subsection (i) provides that “oral or written communications by the employee … in the course of the examination” do not fall into the scope of ex parte communication either.

So… what happened here?  The injured worker contacted the AME and was seen at an appointment, which was probably a mix of treatment and evaluation.  The ex parte is not there…

However, compare that to the same section in pre-SB863 Labor Code.  Section 4062.3(e) made no distinction between an AME and a QME for communications of any sort.  But, even still, assuming that Alvarez still applies in a post-SB863 world, a communication to schedule an appointment appears safe from an ex parte finding.

Have a good weekend!

Happy Hump Day, dear readers!  Are you starving for workers’ compensation knowledge?  Are you curious what Chef Humble Blogger has cooking for you?

Hello, dear readers!

Once again, dear readers – Quis custodiet ipsos custodes?

The Orange County District Attorney has announced that it has charged a Costa Mesa Police Officer with insurance fraud, claiming that he faked a work-injury of striking his fist against a wall during an arrest.  An internal investigation “uncovered evidence contradicting [the officer’s] account of how and when the injury occurred.”  Your humble blogger is declining to name names at this time, as this is only an accusation, and falls short of a conviction.

As noted on this blog a time or two, certain public employees, typically law enforcement officers and firefighters, hold a certain degree of public trust.  Only in a society as confused as ours, are workers’ compensation defense bloggers and attorneys not the pride of the population… To abuse that trust does a considerable amount of damage to society in general.

But, bitter cynic that your humble blogger is, he can’t help but wonder about two particular issues in such scenarios.

On more than one occasion, your humble blogger has met some resistance from law enforcement agencies in having obvious, obnoxious, and borderline heinous instances of fraud ignored – the damages are too small, the fraud not high-profile enough, etc., etc.  How often does a law enforcement agency decline to prosecute a person who steals from its coffers on those very grounds?

Furthermore, we obviously have instances of fraud on the part of law enforcement officers.  This blog has documented sheriff’s deputies, police officers, firefighters (pretend they enforce the law against fires), and CHP officers charged with and convicted or confessed to various forms of workers’ compensation fraud.  It is possible to be an officer of the law and steal from your employer (and the tax payers)!  Why, then, do we continue to offer so many presumptions to favor LEOs in workers’ compensation cases?  Nothing against cops or firefighters – of course there are some great folks in uniform that are honest, hard-working, and brave, but why the kid gloves and special treatment?

There are construction workers that are honest, hard-working, and brave.  There are lots of professions that expose people to dangerous conditions.  Even workers’ compensation defense attorneys can encounter danger from time to time (sometimes parties can react violently to not getting certain benefits, after all).

It’s obvious that the badge or the fire truck don’t make one a paragon of truth and justice – even the rotten ones get to play with the siren or shoot the water hose.

Perhaps we need more powerful lobbying groups – perhaps workers’ compensation defense attorneys should maneuver the legislature into various presumptions to favor our interests – such as conclusive presumptions that we’re handsome devils; witty and charming beyond contest; and when we turn to blogging, there is an irrefutable presumption that we’re humble.

Given the considerably disconcerting events involving law enforcement officers making the news lately, perhaps it’s time we departed from the hero-worship that leads congenital heart conditions to be found compensable and instead subject law enforcement officers’ claims to the same scrutiny as the common man – both as to the veracity of claims and the burden of proof in establishing compensability.

That is, of course, until the defense attorney lobby gets going and membership in the profession establishes a presumptively compensable psyche claim…

Power through, dear readers, your weekend is just around the corner!

Happy Monday, dear readers!

I bring to you the case of Millette v. 81 Grand holdings, Inc., a recent writ-denied case having to do with deferral of utilization review.  Applicant sustained an injury for which no denial was issued within 90 days of it being reported, and defendant provided neck surgery.  Following the surgery, various treating physicians requested several forms of treatment, all of which were deferred by the defense because “causation is in dispute.”

Applicant filed for an expedited hearing, and the WCJ awarded treatment, reasoning that California Code of Regulations section 9792.9.1(b) requires a “clear, concise, and appropriate explanation of the reason for the claims administrator’s dispute of liability for either the injury, claimed body part or parts, or the recommended treatment.”  The WCJ found that “causation is in dispute” did not satisfy the requirements of the regulation.

On reconsideration, defendant argued that this order would bypass utilization review, but the WCJ, in his report and recommendation, relied on subsection (D) of 9792.9.1, which provides that the injured employee may use “the dispute resolution process of the [WCAB].”

The WCAB denied reconsideration and the Court of Appeal denied review.

Of interest in this case is that defendant was put in a position where the injury was presumably compensable, as per Labor Code 5402(b) (“[i]f liability is not rejected within 90 days after the date the claim form is filed under Section 5401, the injury shall be presumed compensable under this division.”)  So, what is the defense basis for disputing causation?

Well, the injury itself was a trip-and-fall, resulting in injury to the neck and face.  But the RFAs were for treatment home care, a Foley catheter, a power wheel chair, and a urological consult.  If defendant is aware of pre-existing medical conditions that might create the need for this additional treatment, conceivably there would be valid grounds for whether the treatment is necessary specifically for the industrial injury.

But, it looks like a more concise explanation would be necessary to defer UR.  Perhaps further discovery would also be necessary prior to litigating the issue – defendants have the resources of a 4050 exam which can be used to cross-examine the treating physicians and even to guide and inform the cross-examination of a PQME on the issue of causation (your humble blogger will go toe-to-toe with anyone on Star Wars trivia, but might need some professional guidance when it comes to whether a neck surgery might cause urinary problems).

Defendants can subpoena prior treatment reports to show the need for these treatments existed prior to the industrial injury – perhaps an applicant’s private insurance records will include a denied request for such treatment predating the DOI?

In any case, dear readers, perhaps UR is a safe route to do as well?  After all, while section 9792.9.1 allows the disputes to be resolved through the WCAB, Dubon II allows no such disturbance from a timely and properly communicated UR report.  It might be worth the vendor fee and IMR bill.

Hello dear readers!  Given that my beloved followers are my one source for unloading the insanity that comes with being a workers’ comp defense attorney, I thought I’d take this opportunity to share a dream I had recently.  Now, now, you’ve already started reading, your coffee is still cooling, don’t go anywhere!

In my dream, everywhere I went, jobs and labor were replaced with machines.  This is the pre-Skynet stage, so all the robots were still friendly.  Job after job after job was done by machine, and the few human jobs left were focused on designing, maintaining, and supervising the machines.  There were no work injuries (coincidentally, I was out of a job).

I woke up in a cold sweat – but who would pay for doctors’ vacation homes and applicant attorneys’ Teslas?

I bring you then, the news fresh out of China (like just about everything on store shelves these days), that one factory has replaced 600 employees with robots, resulting in a workforce of 60, but, as a result, has tripled production and seen a reduction in defective products from 25% to 5%.

China and her Asian neighbors are often destinations for production because of a variety of reasons – among them, cheap labor.  In years past, Apple has been accused of running practical slave labor camps for the production of its products.

Now, your humble blogger just has to ask the question – if a country with a ridiculously low-cost of labor finds enough economic incentive to mechanize its work force, why wouldn’t a country (or even a state, hint hint) find a similar financial incentive?  Why go through labor disputes, workers’ compensation claims and insurance, and human error when machines could be working round the clock?  Why not limit your employees to highly educated and/or skilled employees who would be such high earners that attempting to defraud the workers’ compensation system would result in a net loss even if successful?

Here’s another question for you – California is a hotbed of conflict between new technology and old laws.  Regulation governing the day-to-day of the Flintstones is difficult to apply to the world of the Jetsons.

Going forward, how should California’s workers’ compensation laws adjust to be better suited to an increasingly high-tech and robot-based industry?  As awesome as it would be to depose a robot, I’m thinking more along the lines that laws focused on heavy manual labor, with resulting injuries and needs of human workers might gradually become less and less relevant.

What do you think, dear readers?  Should we all enjoy the beach while the robots work and litigate their own injuries?

Have a great weekend!

Your humble blogger once went on a cruise.  After attending an event about what a great idea is to pre-purchase my next 35 years of cruising, I was handed a drink voucher.  On my way out of the “presentation” I was handed another drink voucher.  And then I thought to myself – what could be better in life than getting not one, but TWO vouchers?!?

Consider, then, the case of Silva v. LSG Sky Chefs, a recent panel decision that was covered extensively and very well by the good folks over at Lexis.  I won’t rehash the details, only that the AME in this case found applicant sustained two injuries – a CT rating to 25% and a specific rating to 30% PD.  The WCJ awarded two (count em!) supplemental job displacement benefit vouchers, one for each injury.

The defendant balked at having to help applicant open a computer lab, and so appealed.  In affirming the WCJ, the appeals board stated that the plain reading of the relevant statutes, namely Labor Code section 4658.5(b) and Regulation 10133.56 both refer to “the injury,” suggesting that a voucher should be awarded for each qualifying injury.

Thus spake the commissioners: “Defendant has provided no relevant authority to the contrary.”

Having seen the proverbial gauntlet dropped before the feet of the collective defense community, your humble blogger wanted to take a crack at answering the challenge.

Sadly, I could find no authority, much like the commissioners pointed out, that would support the contention that applicant is entitled to only one voucher.  However, although I came away without citeable authority, I did craft an argument or two that some brave soul might try, running the risk of being laughed out of the hearing room and right into a straight jacket, of course.

Initially, I would point out that not every injury results I a voucher – the only injuries resulting in a voucher are those that cause permanent disability and for which the employer cannot offer regular, modified, or alternative work.  (Labor Code section 4658.6)  Let’s also not forget the case of Del Taco v. WCAB, Gutierrez, wherein the Court of Appeal held that “[a]n injured employee is not entitled to vocational rehabilitation benefits where the employee is unable to return to work solely because of immigration status.”  In other words, even when there is an injury (or more than one injury) and there is permanent disability, the worker might not get the voucher.

So, how does the employer know it can offer regular, modified, or alternative work?  By the work restrictions imposed by the physician preparing the report, of course!  However, while Labor Code section 4663 provides that “[a]ny physician who prepares a report addressing the issue of permanent disability due to a claimed industrial injury shall in that report address the issue of causation of the permanent disability,” your humble blogger is aware of no such requirement with respect to work restrictions.

And, come on folks – that makes sense!  “Ok doctor, you say Mr. Applicant can’t lift more than 20 pounds.  How many pounds can he NOT lift because of injury 1; how many pounds can he NOT lift because of injury 2; and how many pounds can he NOT lift because of a synergy of the two?”  Well, even the most learned doctor would probably say “ugh… potato?”

Work restrictions are naturally intermingled to the point where one can’t parse them out – permanent disability is not.

Accordingly, the Legislature did not provide a framework for allowing the employer to make an offer for the permanent restrictions based on one of the injuries, but not the other, because, your humble blogger humbly submits to you, the intent was never to have multiple vouchers for the same person at the same time, especially for injuries that temporally overlap.

Turning, by comparison, to the morbid, your humble blogger has a bit of a stretch of an analogy for you:

Take a glance at Labor Code section 4701: “If an injury causes death, either with or without disability, the employer shall be liable, in addition to any other benefits provided by this division … [r]easonable expenses of the employee’s burial …”

An applicant can sustained a cumulative trauma and a specific injury, or even two injuries, with two dates of injury relatively close to each other, and both contribute to the applicant’s death (think of a person working in a factory breathing in harmful fumes causing serious lung damage, only to suffer smoke inhalation as a result of a fire on a specific day – a doctor could opine that both the cumulative breathing of fumes and the specific inhalation of smoke “caused” in part, the death of the injured worker).  Or, a worker performing desk duty while healing a leg broken during a fall at work just a month earlier is unable to escape the building during a fire and his (and his family’s) attorney argues the two injuries, together “caused” his death.

If each injury, in part, “causes” the death, should the injured worker be provided with two burial expenses of up to $10,000, for injuries occurring on or after January 1, 2013? (LC 4701(a)(3).)  I would think not, but then again, I’m just a humble blogger.

Do you love the panel process? Do you hate computers? Are you ready to be frustrated to the point of filing a psyche claim, only to be forced to submit a panel request online and thereby enter into a vicious cycle of litigation and psychosis?  GOOD NEWS! The DWC has posted online tutorials on how to submit panel requests online!

Starting October 1, 2015, represented parties will be able to submit their panel requests online.  Although the form is not available yet – you can check it out here.

The frustrating thing is that unrepresented workers are currently barred from using the online panel form.  On the bright side, since all represented claims will now be processed online and immediately, the Medical Unit should be able to, very quickly, turn these panel requests around and get unrepresented injured workers their panels.

Now, we’re delving into your humble blogger’s wicked little fantasies here, but you know what your humble blogger would like to see on unrepresented panel requests?  A declaration, under penalty of perjury, that the undersigned “is not being represented, advised, or counseled by any attorney, hearing representative, or law firm with respect to the submission of this panel request or the selection of any panel Qualified Medical Evaluators therefrom.”

Why? Why, indeed.

Labor Code section 4062.1, which governs unrepresented worker panel requests, allows the party submitting the panel request form to designate the panel specialty, but gives the worker a 10-day head-start.  This means that there’s no race to the Medical Unit, and there’s also no debate about which panel specialty should control if two panel requests are received on the same day.  Likewise, section 4062.1 allows the unrepresented worker to select a PQME from the panel, without engaging in the strike process.  I will remind you, dear readers, that the Legislature afforded no such benefits to defendants for starving their attorneys of billable hours.

So, what’s to stop an applicant’s attorney from informally advising an injured worker, guiding him or her to request a panel in a litigation-oriented specialty, rather than a medically appropriate one, and also guiding him or her to select the PQME most likely to be persuaded by impairment-inflating arguments, such as Almaraz-Guzman based inquiries?

Well, don’t look to the California Rules of Court for help – Rule 3.37(a), although on its face limited to civil proceedings, holds that “an attorney who contracts with a client to draft or assist in drafting legal documents, but not to make an appearance in the case, is not required to disclose within the text of the documents that he or she was involved in preparing the documents.”  So, an attorney could, informally and for “free” help an injured worker through this process, and then notice his or her representation after the first evaluation.

Admittedly, your humble blogger is a bit of a cynic and is probably a little bit paranoid… but you could see how this plays out, right?  Guys? Come on…

Anyway, barring technical difficulties (and the litigation those difficulties will undoubtedly cause), we’re about to start the streamlined panel request process.  Mark your calendars, dear readers.

Remember folks, that “the Medical Unit will not accept or process panel requests on the QME Form 106 postmarked after September 3, 2015…” (New section 30(b).)

Hello dear readers!  Your humble blogger welcomes you, once more, with this question: do you ever get stressed at your job?  Do you ever get tired from work?  Do you ever think your employees are looking at your… WITH THEIR EYES?!?  Once, a co-worker stopped by your humble blogger’s office and asked if I wanted a glass of water.  When our eyes met, I KNEW that what he was really saying is that he wants me to drown…

Crazy, no?  I’m so glad I have my readers to vent to… especially those that haven’t figured out how the “unsubscribe” button on their e-mails works.

Anywho, I bring you the case of Banuelos v. Acorn Engineering Co., a recent writ-denied case.  All kidding aside, applicant had suffered a pretty serious stroke, which he claimed was the result of stress at work.  Defendant argued that it was error for the WCJ to find industrial causation.

By way of factual background, applicant polished 7-8 tubs per day, and would help co-workers meet their quotas when he was done with his.  Apparently, he felt a lot of pressure and stress from the demands of the job, and, although he was never threatened with any sort of employment consequences himself, feared punishment as he had seen other employees fired for poor performance.

However, testimony from applicant’s supervisors revealed that the employees he thought were fired actually left for Texas to start their own venture; the overtime records reflected only four hours or so in the 5 months prior to his stroke; and the supervisors denied any set quota or having fired anyone in the last ten years.

Defendant argued that the treating physicians conclusions regarding causation could not be considered substantial evidence because the facts reported to the physician by the applicant did not match those to which he testified at trial.

However, the relevant medical experts and the WCAB commissioners both noted that the significant issue here was not the objective stress of the job, but applicant’s own perception of stress.  Because his perception of work-stress caused the stroke, the WCAB concurred with the WCJ that the stroke was industrial.

Defendant argued that stress is an injury psychiatric in nature, and thus must be caused by actual events of employment.  (See Labor Code section 3208.3)  And, as my well-traveled and discerning readers will recall, the Court of Appeal already held that an emotional response to a Personnel Action falls under the scope of a good-faith personnel action.

The commissioners rejected this argument as well – while acknowledging the higher threshold for psyche injuries, the panel noted “there is no similar requirement for physical injuries caused by stress.  The only requirement is that the work-related stress be a contributing cause to applicant’s injury.”

Your humble blogger can only answer this response with a few crack-pot ideas:

Labor Code section 3600(a)(3) requires proximate cause for the injury to be compensable – “[w]here the injury is proximately caused by the employment, either with or without negligence.”  Could one argue that a person that irrationally or unreasonably perceives stress to the point of stroke in an environment where such stress should not or does not exist, could just as easily have similar stroke from family life, traffic, or any other non-industrial activity which can be irrationally perceived as stressful?  Don’t people get strokes from stress outside of work too?

Additionally, we have somewhat of an “eggshell” applicant here.  There is a writ denied panel case in which an applicant’s industrially-caused pneumonia triggered a pre-existing and previously dormant common variable immune deficiency, necessitating lifetime medical treatment.  The WCAB reversed the WCJ’s reliance on the eggshell plaintiff rule, instead finding that something would have eventually triggered the pre-existing condition.  Accordingly, if an applicant is inclined to misperceive an average work-site as particularly stressful, wouldn’t the same be true for any non-work events?

What do you think, dear readers?  Should the subjective deviation from objectively reasonable responses be compensable under comp?

Happy Wednesday, dear readers!

Since the 9th Circuit decided to put the Kaibosh on the Angelotti injunction, there has been a big question mark floating around on how to deal with the liens.  As my readers will recall, the WCAB stopped processing line activation fees in accordance with the injunction issued by the Federal District Court issued on November 19, 2013.

Well, with the 9th Circuits remand, that injunction is supposed to go out the window soon enough.  But what about the liens?

As part of the SB-863 reform (now Labor Code section 4903.06), any lien filed prior to January 1, 2013, was made subject to a lien activation fee of $100.  The failure to pay this $100 activation fee by January 1, 2014, was supposed to result in a dismissal of the lien by operation of law (LC 4903.06(a)(5).)

In November of 2013, the federal district court ordered an injunction against collecting the activation fees, and the DIR complied.  So… now that the injunction is to be lifted, what’s to be done?  Should the DIR grant an additional 58 days for lien claimants to pay?  Should there now be an additional 60 days or so to pay the activation fees?

Your humble blogger is informed that there is a wide range of different approaches by the various WCJs across our fair state, but a memo from Chief Judge Richard Newman reflects that restraint should be the order of the day.   As the 9th circuit has ordered the district court to vacate its decision granting the injunction, the effect has not happened just yet, and is expected on or about July 20, 2015.

In other words, no one knows what’s going to happen as yet.  Your humble blogger opines that, since the DWC made it impossible to pay a lien activation fee prior to January 1, 2014, in compliance with Judge Wu’s injunction, it seems unlikely that LC 4903.06(b)(5) will be given effect.  In all likelihood, the DWC will start collecting lien activation fees again and provide a grace period for fees to be paid.

But, while uncertainty is in the air, it also seems like a wonderful opportunity to settle liens and close files.  The likely best-case scenario for lien claimants from pre-1/1/13 liens is that they will have to pay lien activation fees at some point in the near future.  The worst-case scenario is that the DWC will take the position that the ship has sailed, the train has left the station, and all those liens are dismissed by operation of law.

So, stand by, dear readers, we’re going to get to see what happens.