Greetings, dear readers!  Your humble blogger understands and appreciates that many of the kind workers’ compensation scholars out there, some of which may, in terms of e-mail subscriptions, be called “followers”, have today off work in observance of Martin Luther King day.  As always, your humble blogger urges his readers to not only take a holiday off to rest and catch up on chores, but also to reflect on the reason that so many businesses have their doors closed in observance.

Now, that being said, your humble blogger saw a writ denied case that would tolerate no delay in commentary.  So, without any intended disrespect to the legacy of Dr. King, your humble blogger now brings you the case of Montejo v. United States Fire Insurance.

Therein, applicant sustained an injury to his neck and shoulders as a cumulative trauma.  The defendant requested a report under Labor Code section 4064, which was discussed previously in this post.  Although sub rosa video, along with applicant’s deposition transcript and medical records were sent to this physician, the physician did not examine applicant. (Dear readers, your humble blogger has no experience with the physician named in this case, and so declines to name him.  After all, your humble blogger does not like to name names.)

The 4064 physician wrote a report in which he concluded that applicant was a malingerer and had masochistic tendencies, and that his level of disability did not appears to match his activities in the video.  Defendant sought to serve this report on the primary treating physician, the QME and the AME (your humble blogger presumes that there was an AME for some issues, but only a QME for others).

Applicant objected, arguing that the report would be prejudicial and sought an Order preventing service of the report to any of the relevant medical authorities.  After all, if defendant could get the primary treating physician to comment on the report, even to condemn it completely, then, presumably, the primary treating physician’s report would incorporate the 4064 report, and both could be sent to the QME and AME.

The issue came before the WCJ, who ruled that the report could not be provided to any physician because it was “inadequate.”  The WCJ noted that there had never been an examination by defendant’s 4064 physician of applicant, and that there was no foundation for the 4064 physician’s qualifications to comment on neither the results of surgery nor the claim of psychiatric injury, as the 4064 physician was an internist.  From the WCJ’s position, it appears that there were also several layers of hearsay relied-upon by the report.

The WCAB was not receptive to defendant’s petition for removal, adopting the WCJ’s  report and recommendation and denying removal.  The Court of Appeal, likewise, denied review.

I know, I know, dear readers, not the case of the century.  But, it struck me as interesting and particularly worthy of relating because of the flaws found by the WCJ should be a cautionary tale for us all.

The first thing to recognize is that 4064 is not really in play anymore.  SB-863 amended 4064 to drastically limit the admissibility of these reports.  However, if you aren’t too happy with the PTP or what the Medical Unit sends you, and an AME is not a viable option, you can still get a 4050 exam and report.  That being said, the flaws found in this case’s 4064 exam should be avoided in your 4050 exam to increase the odds of it being reviewed by a PTP, and eventually a QME:

1. There should be an actual, face-to-face examination;
2. There should be a listed and review and summary of all medical records and reports;
3. There should be some foundation laid for the physician’s qualifications, including, but not limited to, a curriculum vitae;
4. To the extent possible, all conclusions should be explained and supported in detail: it’s very easy to say that an opinion is based on the physician’s “training and experience,” but it would be far better to explain that “symptom X is typically not found in the presence of condition Y as explained in Medical Journal ABC…”
5. Finally, the report should not rely on “hearsay” too heavily – although what the defense attorney or the private investigator relates to the evaluation physician is likely true and accurate, the report will be more reliable if information is obtained from primary sources, such as medical records and the injured worker him or herself.

As always, dear readers, life offers no certainty except death and blog posts, so take the rambling postings of your humble blogger as worth as much as what you paid for it.  But, once you have engaged in meaningful reflection of today’s holiday, perhaps you can also reflect on this tiny corner of the workers’ compensation world.

Happy Wednesday, dear readers!

The first week of 2015 is now finally gone – have you made good use of it?  Is your new years’ resolution still sporting a faint heartbeat, or has it died on the vine?

Well, I bring you an interesting case today to distract you from your woes, which I presume you have a plenty, given the fact that you’re reading a workers’ comp blog.  Though of limited applicability, given that the case itself is unpublished, it does stand for the concept that even defendants have rights in workers’ compensation proceedings.  And to think, this all came about because your humble blogger accidentally got involved in a pro-workers’ comp defendant demonstration…

Anywho… the case is that of Ogden Entertainment v. WCAB (Ritzhoff), issued but not published as 2014 yielded its last few glimmers of light.

Applicant Ritzhoff had sustained an injury in 1996, which was found permanent and stationary in 2005.  However, applicant claimed a compensable psyche injury, and his psyche treating physician found him permanently and totally disabled.  When the defendant received a permanent and stationary report as to the psyche injury, it cut off temporary disability benefits, prompting an expedited hearing.  Applicant testified that he was still temporarily totally disabled, but when defendant’s efforts to cross examine him were cut off due to time constraints.

At various hearings that followed, applicant refused to be cross-examined.  The defense position was that it had a right to cross-examine applicant, and that, through its cross-examination, it would prove not only that applicant was permanent and stationary, but also that he had been working and earning money, thereby defeating the claim that he was totally and permanently disabled.

The WCJ concluded that applicant was TTD based on the opinions of applicant’s psychiatrist, and further concluded that the lay testimony of an injured worker would have no bearing on the expert testimony of the psychiatrist.

Defendant filed a petition for reconsideration, but found no assistance there, as the WCAB agreed with the WCJ’s holding.

In response, the defendant stopped paying for treatment, asserting the position that it was denied due process.  So, at another expedited hearing, the WCJ ordered the defendant to start providing medical treatment.  However, although the WCJ ordered the payment of TTD benefits and psychiatric treatment, because applicant continued to refuse to submit to cross examination, no orthopedic treatment was ordered.

Again the defendant sought reconsideration, and again the WCAB allowed the WCJ’s decision to stand, although the panel opinion noted that, ultimately, applicant would have to submit to cross-examination, just not yet.

So, here’s where it gets really fun, and those cold, hard, barely-functioning defense hearts out there can flutter with the faintest signs of joy.

The Court of Appeal panel squinted at the facts and procedural history of this case, and disapprovingly shook its head, like so:

The COA went so far as to quote the United States Supreme Court (called “SCOTUS,” by the cooler kids) to support the contention that cross examination is pretty darn important for due process, and even employers and insurers are entitled to due process in California.  After a brief discussion of various sources of legal authority for the right to cross examine witnesses, especially when a witness is a party to the case, the WCAB annulled the WCJ’s and WCAB’s decisions, remanding the case to down below.

Now, I know this case is unpublished, so you’re not going to have too much luck citing it unless you’re willing to go in for one of your humble blogger’s crackpot ideas, but the opinion is a ready to be copy-pasted into a brief on why you should be entitled to cross-examine any witness.

If nothing else, this opinion should provide incentive for defendants to consider going up to the Court of Appeal on such issues.

Strap in tight, dear readers, it’s going to be a bumpy year!

Hello, dear readers!

I welcome you to “hump” day Wednesday with a published Court of Appeal decision on the topic of going and coming.  As my readers will recall, this blog has had occasion to touch on this topic before, and the rule itself has riddled California tort and workers’ compensation law since the first lawyers emerged to torment civilized society.

The case in Schultz v. WCAB, where Mr. Schultz was employed by Joint Test Tactics and Training as a technical drafter at Edwards Airforce Base in 2010.  The Court of Appeal held that a civilian contractor had finished his commute and started working when he entered the general air force base by passing through a security gate not open to the public, and not when he would have otherwise arrived at the building where he performed most of his work located inside the base.

Your humble blogger was able to secure some footage from the base, although the accident itself was not captured on video:

Apparently, on the date of the injury, applicant was to report to Building 1440 to commence work.  Although defendant argue that applicant had not reached the premises line of where he was to start working because he had not yet reached Building 1440 when the injury occurred, applicant argued the premises line should be identified as the border of the Airforce Base, but also that applicant’s occasional use of his personal vehicle for work should constitute the entire commute as exempt from the going and coming rule.

At trial, the WCJ concluded the injury was compensable because applicant testified to having to work, on occasion, at different locations within the base, and because applicant was using his personal car to get to, around, and from work.  “[I]f the commuting employee uses a method of transportation that benefits the employer by facilitating the employee’s work, an injury during the commute may be compensable where the employee’s use of the vehicle although not expressly or impliedly required by the employer was an accommodation to the employer.”

Defendant sought reconsideration, arguing that the going and coming rule should bar compensability.  The WCAB agreed with defendant, reasoning that “[t]he problem with the WCJ’s analysis is that it focuses on how the employer might possibly benefit by having applicant bring his car to work instead of considering why applicant was in his car on [the DOI] and what he was actually doing at the time he crashed.”  To wit, at the time of the injury, the car was not being driven for any purpose other than a commute.

So, the Court of Appeal took a completely different take.  The COA focused on the fact that work was done mostly in Building 1440, but also around the base.  Furthermore, applicant’s access to the base was granted only because he was an employee of the defendant.

In effect, applicant argued, the entire base was the employer’s premises.  “Because [the employer] controlled Schultz’s access to Edwards [Airforce Base], and [applicant] worked through the base on assignments, he was on the premises of his employer once [applicant] entered Edwards [Airforce Base], and his injury was compensable.

So, dear readers, what do you think – next stop: Supreme Court?  Your humble blogger thinks this may be the end of this case, but who knows?

Alright, dear readers, you remember that CHP officer accused of insurance fraud?  Your humble blogger reported on this matter back in 2012, when Officer Tony Yao was accused of workers’ compensation fraud.  Well, it looks like officer Yao has been convicted, and sentencing is set for the end of January.  (Special thanks to E.V., Esq.)

Now, think back, dear readers, to when you’ve had an actual fraud case that you would like to see prosecuted by the District Attorney.  Whether this is a major fraud case or a slam-dunk petty fraud case, how often have you been told that the good folks enforcing the laws have neither the time nor the resources to handle every single case, including yours?

Now that officer Yao has been convicted, do you think any cases that he may have worked on in the past might warrant a review?  Do you think that, now, there’s going to be more or less in terms of resources available to prosecute workers’ compensation fraud when the district attorney has additional cases to re-litigate?

Workers’  compensation fraud hurts a lot of people – it raises the cost of doing business, and that raise in cost translates to higher prices for consumers and less in available wages for workers.  When a law enforcement officer engages in fraud, the harm resonates further, and robs Californians of law-enforcement tax dollars as well.

Congratulations to the District Attorney for getting this conviction – hopefully it will resonate with any other law enforcement officers, and employees in general, about the consequences of fraudulent actions.

Welcome back, dear readers!  It’s finally 2015 – the long awaited date of everyone who ever watched the famous movie, Back to the Future, Part II.  In that wonderfully entertaining film from 1989, the story’s hero, Mr. Marty McFly, travels to 2015, where we encounter a sneak-peak of what fashion would eventually be like.  In case you’re wondering, this is us casual:

and this is us in business attire:

Well, 2015 is looking good already!

Anywho, your humble blogger thought we’d start this year off with a straightforward and simple post.  In the recent writ denied case of Bracken v. Team Commercial Construction.  Applicant had sustained an injury all the way back in 1996 after a bit more than two months on the job.  He then was off work for about nine months, before returning to modified duty for a day and then going off work again.  Well, he was finally laid off in mid-June of 1997, with, effectively, a little less than two years on the books.

Applicant then claimed a psyche injury, but, as any defendant would in such a situation, defendant raised the 6-month employment rule of 3208.3(d), arguing that applicant was not employed for six months, because he actually worked less than six months, despite being “on the books” for almost two years.

Labor Code section 3208.3(d) specifically provides that a psyche claim requires that “the employee has been employed by that employer for at least six months.” Does being on the books mean being employed for the purposes of 3208.3?

Well, Wal-Mart Stores v. WCAB, a 2003 Court of Appeal case, held that “employment … mean[s] the performance of actual service for the employer.”  In other words, simply being on the books is not enough.  Accordingly, time spent on temporary disability is likewise not part of the six months.

Now, here’s a thought (or, more accurately, a stretch).  If six months of “performance of actual service for the employer” is the requirement, then what about seasonal work?  Weekend employment only?  Shouldn’t six months be converted into days, and those days of “actual service” be calculated?  An employee working two days a week would then have to wait longer before filing a psyche claim than one working five days.  Again, dear readers, just another crackpot thought.

Welcome to 2015!

Hello, dear readers!

From the bottom of your humble blogger’s humble heart, Happy New Year!  May 2015 bring us all health, happiness, and success, and may the lessons learned and victories earned of 2014 carry forward with us.

I hope you have a safe and fun new year, and your humble blogger will be ready and waiting for you in 2015.

Cheers!

Greg

It’s the holiday season, dear readers!  Channukah; Hannukah; Hanukah; the Festival of Lights, Christmas, New Years, and, of course, Festivus!

And, in the holiday spirit, your humble blogger brings you the case of Bitkarim v. Edible Arrangements.  Therein, applicant sustained an injury while on the way home from work.  Now, I know what you’re thinking, dear readers, “going and coming rule” right? Obviously, door-to-door doesn’t get you a workers’ comp claim.  Well, applicant had an interesting theory to defeat the going and coming defense.

During the Christmas season, Edible Arrangements, at least according to applicant, had employees working lots and lots and lots of overtime, to the point that exhausted employees got into car accidents on the way home.  In fact, after working overtime (“near doubling of the applicant’s normal shift duration” applicant was left “tired, apparently to a much greater degree than her normal shift.”)  The theory, according to applicant, was that these extra hours left applicant “unable to come to a complete stop due to her tired feet” resulting in an auto collision, and applicant’s injuries.

As we all know, the going and coming rule has exceptions… and lots of them.  One of them is the “special mission” exception, which provides that that when an injured worker is assigned to a special task, typically at a different location or at different hours than the usual job, going to or coming from the special assignment, and any injuries sustained during the commute tend to be compensable.

So, applicant in this case argued that the extra hours were a “special mission” and resulted in the exhaustion that caused the collision.  After all, how could you deny such an argument around Christmas time…?  What kind of a Grinch of a defense attorney would try to resist such a claim…?

Well, the WCJ was not persuaded.  Applicant testified to often working overtime around the Holiday season, including around Christmas time.  The WCJ opined that “[a]pplicant working overtime at the time of the injury on 12/15/2008 is not extraordinary or in any way outside of the normal course of business for this employer… [i]n fact, it appears to be rather expected.”

Applicant also argued that Labor Code section 3202 and the “liberal construction” provision of the same, requires a finding of compensability, or at least of the “special mission exception” being applied.  The WCJ disagreed there as well, finding that applicant’s frequency in working overtime and being tired negated the “special” component of the “special mission” exception.

Although not mentioned in the WCJ’s report, it should be noted that the Lantz case, a Court of Appeal decision effectively held that the “liberal construction” provision of 3202 does not apply when AOE/COE has not been established.  So, when AOE/COE is in question and has not been established, liberal construction has no more place than conservative  construction, communist construction, or even libertarian construction (where buildings are made out of marijuana and privately constructed roads).

The WCAB adopted the WCJ’s report and the Court of Appeal denied review.

From the bottom of my cold, hard, barely-human defense attorney heart, I wish my beloved readers, from the frequent commenters to the silent lurkers, and everyone in between, a very Merry Christmas and a very happy New Year!

Happy Monday, dear readers!  Boy, you won’t believe what your humble blogger went through on Friday!  As I was walking to make an appearance at the San Francisco Board, a huge group of tourists crossed paths with me, and I was involuntarily turned around and ended up, somehow, where the California Supreme Court Justices go about their duties.  As I was trying to make my way out, without California Highway Patrol catching wind of my involuntary trespass, I suddenly heard someone yell “Dogpile!” and four of the current Supreme Court justices, and two CHP officers, jumped on your humble blogger.  Afterwards, they all got up laughing and “high-fiving,” before they realized that I wasn’t one of the other CHP officers and briefly apologized before escorting me out into the lobby.

If you don’t believe this story, neither did opposing counsel…

Anyway, dogpiles are apparently a growing occupational hazard.  As everyone knows, cultural norms react to the dogpile in different ways.  For example, in America, the dogpile is a friendly, fun form of roughhousing.  By contrast, in some former member-states of the Soviet Union, the dogpile was the preferred method of execution.  As Yakov Smirnoff used to say “In Soviet Russia, dogpile crush you for crimes against proletariat!”

But, as a recent split panel held, whether or not the “horseplay” defense can shield an employer from liability in a dogpile scenario turns on whether the injured worker was part of the pile, or the “victim.”

I respectfully submit for your attention the case of Tapiav. Golden State Health Centers.  From what your humble blogger can glean from the facts, applicant had participated in several “dogpiles” of fellow employees at work over a period of several weeks.  The prior dogpiles always were in good spirits, with no reprisals being taken by the victims.

At some point in December of 2012, applicant’s coworkers decided that it was his turn to suffer the wrath of the pile of dogs, and so he too was covered in the still-breathing bodies of his coworkers, with nothing but a couch to cushion the crushing weight.  The testimony in the case reflects that the employer did not know about the dogpiling, and some testimony even reflected that applicant was smiling and laughing during the injury-causing dogpile.  Dogpile. Dogpile. Dogpile.

Anywho, applicant claimed he sustained injuries resulting from this last dogpile, and the defendant raised the horseplay defense, reasoning that the dogpile was a game the employees were playing and so was not AOE/COE (this did occur off the clock, after hours, without the knowledge of management).  At trial, the WCJ sided with the defense, noting in his observations that applicant, who claimed not to have wanted to participate in this particular dogpile, was “overall evasive” in his testimony.

The WCAB disagreed, reasoning that past participation in the dogpile “game” did not make this particular involuntary involvement in the game.  The dissent, noted that whether applicant had wanted to participate and was now sour about sustaining an injury, or whether he really never wanted to be crushed beneath the dual burden of peer pressure and his peers, was a factual inquiry, and the WCJ is usually given a great deal of deference on factual inquiries, particularly the credibility of witnesses.

In any case, this is a lesson for us all: keep an eye on what the employees are doing after hours!  Now, if you’ll excuse me, your humble blogger has some industrially-caused physical therapy to attend to due to the dogpile incident sustained by decree of the Supreme Court…

Your humble blogger has heard that the limelight can be addictive.  Once one is in the spotlight, for better or for worse, it’s hard to return to the quiet life of everyday.

So, it should come as no surprise that a woman who graced the TVs of countless homes on the show Bridezillas has once again made her way into the forum of public discussion as she stands accused of various acts of insurance fraud.

It appears that this woman (seeing how this is an accusation rather than a conviction, her name will not grace the pages of this humblest of blogs) is accused by the California Department of Insurance of having lied to her treating physician regarding the existence of prior industrial injuries, and also stands accused of submit falls mileage tallies for reimbursement by her employer.

As the word goes, the alleged fraud was discovered when the defense investigation managed to find past awards and injuries which the injured worker either failed to mention or denied (as the facts come out in the criminal prosecution, we’ll know for certain).

Now, this is nothing new, dear readers.   Many people are inclined to wander from the truth, and it doesn’t take a humble blogger to realize that if you embellish your good health prior to injuries and maximize your poor health after the fact.  That being said, your humble blogger has these thoughts to offer which may be of some use to all employers, insurers, and the troops in the trenches:

1. The defense in this case needs to be credited with diligent investigation, discovery the existence of past injuries and the terms under which the relevant claims were resolved;

2. It’s the easiest thing in the world to simply process and pay a mileage reimbursement form – don’t. The attorney on the file, or your claims assistant, can run the destination through google maps and match the dates of the visits against medical appointments at no charge to the file.  Of course, the visits should be to authorized treatment, which passes both UR and MPN muster.

3. Odds are that before this case was presented to the Department of Insurance, all the leg work was properly done by the defense, including a proper outline and presentation of the claims made and the evidence contradicting the same. The law enforcement folks tend to be overworked to the point where limited resources necessitate taking the cases where it’s practically a “sure thing.”

Semper Vigilans, dear readers.

Hello, dear readers!  Thank you all for your kind notes of concern – your humble blogger barely survived being washed away by the storm that slammed into the Bay Area this past Thursday and Friday.  The devastation is heartbreaking, but, rest assured, your humble blogger is determined to march onward!

Just as the skies let forth their blessings on the reluctant recipients of San Francisco and the surrounding areas, so, too, your humble blogger will rain down his wrath upon his luckless readers in the form of another blog post.

The case I bring to your attention today is that of Coon v. Swift Transportation.  Applicant was a student long-haul truck driver out on assignment when he took a dinner break, only to be viciously assaulted after parking the truck and walking to get dinner.  The employer’s policy was to have drivers stay with the trucks in “high theft areas,” which, apparently, includes the entirety of Southern California.  (By contrast, Northern California is regarded as an area of high awesomeness, so there!)

Even after the arrest of the assailant, there had been no allegations of any personal connection between the assailant and applicant.  So, in all likelihood, this was “nothing personal” and really about either hurting an unfortunate victim, or effecting a robbery through extremely violent means.

The WCJ and the WCAB both found the injuries sustained as the result of the assault to be compensable.  Applicant was a commercial traveler, in that he was traveling with the truck on the way to a delivery.  So, even when he stopped to rest, sleep, or eat, he was still “on the job.”  Furthermore, he was following his employer’s instructions to stay with the truck to prevent theft.  In fact, it is entirely possible (and probably likely) that had he left the truck in a parking lot and retired to a hotel for the night, he and the assailant would not have crossed paths.

Another point of interest in this case, however, is that the defense apparently cited to the case of County of San Bernardino v. WCAB (Tuttle), a 1997 Court of Appeal case that was NOT Published.  In Tuttle, the Court of Appeal ruled that the victim of an assault failed to carry his burden in showing that the assault was related to his employment.  Presumably, when taken with the Court of Appeal’s ruling that Labor Code section 3202 is inapplicable when the compensability of an injury has not yet been determined, the defense had an argument against compensability.

In its opinion, the WCAB cautioned the defense against relying on unpublished opinions, as such behavior is expressly prohibited by California Rules of Court 8.1115.  However, in this case, does it matter?  Even if the injury were not otherwise compensable – even if the assault were of a personal nature completely unrelated to his job duties… he’s a commercial traveler!

May you have an easy week, dear readers, and, of course, Happy Channukah!