Welcome back from Independence Day Weekend, dear readers!

In honor of our nation’s great underdog victory, I shall relate to you the story that played out recently at the San Francisco Board – a contest between little Niko, the brave little defense attorney, and Natasha, the queen of evil and all that is unholy, representing lien claimants before the WCAB.

Niko appeared ready to defend his client, the poor and exploited corporation, but Natasha had brought her “A” game.  Within each argument for reimbursement was a better and more concise argument, not unlike the nesting dolls that were common in Natasha’s native land.

Niko seemed completely lost, until, as he frantically looked through his file for some defense, he noticed a piece of paper had come loose… his own Notice of Representation, zealously drafted and dutifully filed with the Board.  But where was Natasha’s?

“Mr. Niko… for the last time, do you have any defense to this lien claim?” asked the Judge, eager to afford all parties on calendar enough time to be heard.

“Yes your honor.  EvilDoc has failed to appear, as there is no EvilDoc representative present and there is no legally valid Notice of Representation on file.”

“What do you mean?” Roared Natasha, taking a break from installing iron curtains on the Board windows.  “I’m right here – I represent EvilDoc.”

Well, dear readers, was she, legally speaking?

Labor Code section 4903.6(b) requires all lien claimants to inform all employers, their representatives, and the appeals board within 5 days of any change in representation status.  Furthermore, Rule 10774.5(e)(4) defines the notice of representation as requiring the signature of both the lien claimant and the representative assuming the representation.  (This does not apply to attorney representatives for lien claimants, as per section (e).)

Subsection (e)(5) provides that failure to properly follow the Notice of Representation rules holds that the lien claimant is not actually represented, and if not, then the lien claimant had better be there or else face a dismissal for failure to appear.

So, unless Natasha (or the EAMS record) can produce a copy of the Notice of Representation and a valid proof of service, Natasha is just hanging out at the Board, and not appearing for EvilDoc.  And since EvilDoc is busy doing whatever it is EvilDoc does, odds are high that he isn’t going to be showing up.

Lexis has a survey of these cases in a great post here.

Greetings dear readers!  *Cricket Cricket* Ahh – of course, you’re probably sleeping in, prepping the BBQ, camping, or even engaging in the purchase and discharge of some illegal fireworks

Now, bear in mind, your humble blogger does not want to discourage you from doing any of that (except, perhaps, the illegal fireworks part).  But, as with all holidays, we should take time to reflect.

Fireworks are just fireworks.  As are BBQs and camping, and over-eating hamburgers (or veggie-burgers, for my herbivore readers).  What makes them special today is not that they’re explosives and grilled food, or that they are explosives and burned food on the same day every year.  What makes them special today is that they are to celebrate our nation’s independence, and also our nation as a nation of independents.

Now comes the ugly…

As great as this country is, something is going wrong when Americans living abroad are, at epidemic proportions, renouncing their U.S. Citizenship.  From the looks of it, it’s for economic reasons and not any ideological ones.

Something is wrong with California too, when businesses (and the jobs that go with them) are leaving the land of chronic sunshine, delicious grapes, and bountiful Sushi to face tornadoes, floods, the dessert, and even blizzards (no, not the delicious ice-cream ones).

Light up your BBQ, blow up your fireworks, and, if you’re Yosemite Sam, go ahead and shoot your guns into the air.  But in between your fourth burger and your fifth, or while you’re getting the hose to put the fire out, or even while you’re reloading, think about what course we’re taking as a nation and as a state, if the honesty of self-interest is taking our fellow Californians and countrymen elsewhere.  What are we doing that makes them prefer their new homes to their real homes?

Wishing you a 4th of July that is safe, fun, and balanced enough to afford you time to reflect!

Your humble blogger, before he hung out his own proverbial shingle and opened his own literal office, had the privilege of working for another law firm.  One requirement of continued employment was a valid California Bar license, and one requirement of a valid California Bar license was keeping up with the State’s ridiculous MCLE minimums.

So, one day, as I sat diligently at my desk at home, writing out the answers to a take-home MCLE self-test, my elbow slipped, and my pencil pierced my hand.  The cut wasn’t deep, but it of course became infected.  As a result of the amputation, my other hand and arm became overused, causing carpal tunnel and a cumulative trauma.  The inability to use both hands necessitated the use of my teeth as a gripping method, which of course caused a dental injury, as well as considerable psychiatric trauma.  Needless to say, it wasn’t long before I faced a permanent total disability determination and was prepared to lay the entire claim at the feet of my employer.

After all, I was only injured because I was catching up on my MCLEs, which I was only doing to have continued Bar Membership, which I was only doing to continue my employment.  AOE/COE established, right? Slam dunk…

Ok, now back to reality.

The Court of Appeal recently ruled on the claims of an applicant, one blessed with eternal youth, for injuries sustained at home while engaged in exercise for the purpose of staying fit for his job duties.  In the case of Daniel Young v. WCAB and County of Butte (get it? eternal youth… because his name is always Young… it’s funny because… oh.  You got it? What do you mean it’s not funny?), the Court held that when the employer states a vague requirement that employees must remain physically fit to perform their jobs, and neither provides guidelines for fitness activities or at-work physical fitness facilities, an injury sustained while doing jumping jacks at home is compensable under Labor Code section 3600(a)(9).

Sergeant Young was employed as a correctional officer by Butte County.  There was a general directive requiring him (and all other correctional officers and sergeants) to maintain physical fitness for the demanding job duties that often come with guarding inmates.  Applicant testified that jumping jacks are his “warm-up” activity prior to engaging in other exercise to maintain his weight and general physical condition.  Butte County neither provided a list of activities to be performed by employees to stay in shape, no did it provide opportunities during work hours to exercise.

Applicant’s position was clear: he exercised because he had to because his employer told him to.  Defendant’s position was equally clear: no one told him to do jumping jacks.

Although the workers’ compensation Judge found the injury compensable, the WCAB reversed, relying on the case of City of Stockton v. WCAB (Jenneiahn), for the proposition that an injury sustained at home while preparing for a fitness test necessary for work is compensable, for an injury to stay in shape when no fitness test was on the horizon was not.

The Court of Appeal disagreed, instead reasoning that the test to determine if the “off-duty recreational, social, or athletic activity … are a reasonable expectancy of, or are expressly or impliedly required by, the employment,” was whether the employee subjectively believed the participation was required, and whether this expectation was objectively reasonable.

In this case, there appeared to be no question about the subjective belief by the applicant that he had to do these exercises and stay in shape as part of his job.  On the other hand, the COA and the WCAB disagreed as to the objective reasonableness of this belief.  There was no exam, except the initial hire fitness exam, and applicant would not be tested on his physical fitness.  However, because of the vagueness of the order, the COA reasoned that the bar for what activities were objectively reasonable should be lowered.

The COA did encourage employers to avoid increased liability by limiting the scope of exercises required by the employer to maintain physical fitness.

What do you think, dear readers, is the Court of Appeal right on this one?  My initial impression when reading this opinion was that there should be a distinction between an employer wanting an employee to develop and maintain a new skill, rather than the maintenance required for the skill or ability promised at the time of hire.

So, if you have to be able to lift 160 pounds and carry it for 20 feet to get hired, it should be understood that you have to continue to be able to do that to keep your job.  By contrast, if the employer tells you, once hired, that you now need to be able to do something else, like learn and perform CPR, perhaps the injuries sustained in that pursuit should be compensable.  Just a thought, dear readers.

“Injuries taking place when a worker has reentered the job site for a personal motive after his or her workday has ended have been held to be outside the scope of employment.”

The Court of Appeal recently denied applicant’s petition for a writ of review in the matter of M.C. v. University of Southern California, wherein the WCAB held that applicant’s injuries sustained in the form of an assault by a co-worker when she returned to work several hours after the end of her shift to retrieve some personal effects was non-compensable.

The reasoning relied heavily on an analysis of the meaning of Arising out of Employment and in the Course of Employment, which we of the workers’ compensation community refer to as “AOE/COE.”  The analysis has  two prongs – whether the injury occurred when and where employment takes place, and also during the work being performed.

In this case, the majority of the panel held that, even though the injury occurred where work usually takes place, it did no occur when work usually takes place, and not while the applicant was performing any work for the employer.

By contrast, the dissent would have found the injury compensable, noting that the employee was provided with an access card for after-hours entry, and a place to keep her personal items.  She took advantage of both, as provided by her employer, and it placed her in the position where she sustained the injury in question.

What do you think, dear readers – should the employer/insurer be on the hook for all injuries sustained on its premises?  Should an amusement park employee have a compensable claim for injuries sustained while enjoying the rides at the amusement park?  What about a bar tender having a drink in the bar where he works?

Given the sensitive nature of the case, your humble blogger has not placed the full name of the applicant in this blog post.  For a copy of the panel decision, please shoot me an e-mail.

Good morning, dear readers!

Your humble blogger had another blog post prepared for you this morning, but news of the Supreme Court’s opinion in Salas v. Sierra Chemical Co. mandated an immediate post, because this is very good news!  Some of my readers may recall this blog post on the same case.

The facts are pretty simple.  Salas used a stolen social security number to lie his way onto a job. After several years working for Sierra as a seasonal employee, he hurt his back while stacking crates.  He filed a workers’ comp claim but continued to work modified duty.  When he was laid off with the end of the season, things continued as normal, until his employer refused to hire him back.

During the trial proceedings in civil court, Salas noted that he would testify, but would assert the 5^th Amendment Privilege against self-incrimination if asked about his immigration status.  This prompted the employer to investigate his immigration status, leading to the discovery that Salas was in the country illegally.

So, what do you think, dear readers – to what benefits should Mr. Salas be entitled?  Back pay? Reinstatement? Penalties?

The Supreme Court held that an illegal alien is not entitled to back pay as a remedy under Fair Employment and Housing Act (and presumably under Labor Code section 132a) only for that period of time after the employer discovered the employee was ineligible to work in the United States.

It seems a foregone conclusion that reinstatement is not a remedy for a person without the right to work in the United States.

There have been other cases on this point as well, but this is, to some extent, a win for employers.  Once it is discovered that the injured worker does not have the right to work in the United States, backpay is in the crosshairs.  And, even if the employee is not actually back to work, conceivably, proof that the employer could accommodate modified duty, if not for the employee’s immigration status, should put temporary disability on the chopping block as well.

Finally, the immigration status should also play into liability for 132a penalties.  After all, if the applicant had no right to reinstatement, how was he harmed by not being returned to work? If he was not harmed, why the penalties?

Have a great weekend, dear readers!

The Dubon decision continues to make ripples in our calm little pond of workers’ compensation.  Do you remember how great it was to not be an applicant prior to Dubon?  The law was very simple: UR, IMR, done.  Now every single UR decision that doesn’t give away the farm has to survive a Dubon challenge, putting into play the issues of whether adequate records were reviewed or whether it was timely.

No exception can be found in the recent panel decision of Andronico v. La Rocca Seafood. Therein, the WCJ found that the UR decision was defective because the UR physician who had denied the treatment request was not competent to render a decision on this question of medical necessity.  To wit, the request was for spinal surgery, and the UR physician, though Board Certified by the American Board of Orthopaedic Surgery, had not performed a spinal surgery within the last ten years.

The WCJ rule the UR was defective, reasoning that Labor Code section 4610(e), required the requested treatment to be within the UR physician’s scope of practice, with practice being the operative word.  The WCJ found the fact that the UR physician’s lack of practice in the area in the last ten years to be such a material defect as to undermine the integrity of the UR decision.

On review, the WCAB disagreed.  The Panel Opinion ruled that “[a] physician’s specialty, or area of board certification, or level of clinical practice, is not dispositive of his or her competency.  Section 4610(e) requires only that the doctor be competent to evaluate the specific clinical issues, and that the services at issue are ‘within the scope of the physician’s practice.’”

Ultimately, though, the WCAB did rule that the UR decision was defective due to an inadequate records review, and sent it back down to the Board for a determination on medical necessity.

One thing to consider in all this is the scales of justice and our system.  On the one hand, we have the injured worker’s right to medical treatment, and the ultimate decision on Dubon may rule that the entire treatment right will be determined by anonymous figures without a right of appeal.  On the other hand, we have the possibility of every single case having to address these vague questions: how many surgeries in the last 10 years qualifies a physician to render an opinion? How many years in practice?  How much of the medical record must the physician review to satisfy the Dubon requirements?

Remember, dear readers, the whole reason why IMR came about was to take the uncertainty out of the equation – to stop the uncertainty that comes with every other UR physician’s resume or every other Board, or every other make-up of the panel on reconsideration.

Your humble blogger further points out that the uncertainty breeds litigation, the blurred standards invite the adversarial process.  What the heck are we supposed to do with scope of practice, when one UR physician is Board certified but has performed no surgery in the last ten years, and another might not be Board certified but performs five a month?

In the purely practical sense, however, while the WCAB considers the merits of each position int the Dubon case, the unspoken sense is there that Dubon has created a flood of Reconsideration petitions for the commissioners to address.  Here’s hoping it tips the scales for a reversal of Dubon, which your humble blogger intends to refer to (because he’s oh-so-clever) as “Duboff”.

Put down that checkbook, dear readers!  Put away your coin purse.  Log off your Bitcoin account.  Herd your trading goats back into their pens.  I don’t know what other currency might be used in the Workers’ Compensation world, so I’m assuming I’ve covered most of them here.

It appears that Landmark Medical Management has been indicted, along with its president, Kareem Ahmed, as well as doctors Michael Rudolph and Andrew Jarminski, for a massive conspiracy to manufacture compound drugs, prescribe them to injured workers, and commit a host of other false acts to defraud insurers and self-employed insurers.

The numbers involved, if the allegations are to be believed, are staggering, including $1.9 million paid to several physicians for their participation in the scheme.

A search of liens on the public search function reveals that six pages of liens listed, Allied Medical Group,which lists Andrew Jarminski as a member, boasts 17 pages, and Michael Rudolph has another 17.

Now, it’s important to realize that an indictment is not a conviction.  And,  as the saying goes, one could indict a ham sandwich.  That being said, the charges here are very serious: if there is a conviction, the credibility of the liens and the lien claimants is impeached, and the taint of this impeachment can reach out to all matters, even those not involving any compound drugs, but even legitimate services that were rightly billed.

Accordingly, if you are in a rush to settle, your humble blogger suggests considering and weighing the advantage of letting this case play out.

As always, your humble blogger, and all the might and influence of WCDefenseCA,wishes the District Attorney of Orange County, Tony Rackauckas, and his diligent deputy, Shaddi Kamiabipour, good hunting and great success.  Just don’t forget about getting restitution for the defendants if this comes down to a plea bargain situation.

As my beloved readers will recall, the Supreme Court ruled in Valdez that non-MPN treatment reports were admissible.  And how do we know that?  Because Labor Code section 4605, that the employee has the right “to provide, at his or her own expense, a consulting physician or any attending physicians whom he or she desires.”

Your humble blogger interpreted this as we all should – repeated bills, liens, and demands for payment by the treatment provider negate the “at his or her own expense” clause of section 4605, rendering the reports inadmissible.

Now comes the unpublished decision in Mirian Garcia v. Illinois Midwest Insurance Agency.  Therein, the Court of Appeal had suspended action until the Valdez decision issued.  Applicant had treated with several non-MPN physicians, but the WCJ had ruled those reports inadmissible.

The Court of Appeal remanded the case down to the WCAB to rule on admissibility of the previously excluded reports, and to have those admissibility decisions guided by the Supreme Court’s opinion in Valdez.

Look, certain things you have to openly, proudly, and fiercely declare to make the magic of the law work.  For example, your humble blogger is no bankruptcy attorney, but bankruptcy generally works like this:

So, if you want those non-MPN reports to be admissible, you need to say so when you’re getting the treatment.  And if the provider is sending bills to the insurer, then the WCAB defendant should point to that fact when the applicant tries to get this case squeezed back in.

Now, it’s very interesting to watch this case – how will the WCAB rule on admissibility?  Will the WCAB adopt your humble blogger’s reasoning in this case?  Let’s keep our collective ears to the proverbial ground.

“The appeals board may determine, and allow as liens against any sum to be paid as compensation, any amount determined as hereinafter set forth in subdivisions (a) through (i).”  (Labor Code section 4903.)

“A reasonable attorney’s fee for legal services pertaining to any claim for compensation either before the appeals board or before any of the appellate courts, and the reasonable disbursements in connection therewith.”  (Labor Code section 4903(a).)

“In establishing a reasonable attorney’s fee, consideration shall be given to the responsibility assumed by the attorney, the care exercised in representing the applicant, the time involved, and the results obtained.”  (Labor Code section 4906(d).)

“Greg Grinberg is awesome and everyone should listen to his opinions.”  [Citation Needed].

The Board has the power to set the attorney fee recoverable by the applicant’s attorney, and consideration should be given to several factors, including “results obtained.”

So, picture if you can, dear readers, the following scenario:  Applicant is unrepresented and is eager to settle his case.  He declines a PQME evaluation, and is prepared to settle his future medical care and the permanent disability indemnity by way of C&R for $20,000.

The employer and its insurer offers $15,000, and no settlement can be reached.

Applicant retains an attorney, who proceeds to herd applicant to a PQME evaluation; applicant is required to take time for the evaluation, a deposition, another evaluation, and to attend several hearings and a trial.  Ultimately, the case does proceed to a trial, and the parties settle for $20,000.

The trial judge, prior to approving the C&R, reviews the settlement documents and notices that the attorney is claiming an attorney fee on the full $20,000.  But didn’t applicant get to $15,000 on his own?  If anything, the applicant’s attorney’s “efforts” resulted in money wasted by the defense, and a nice deposition fee for the AA, but not much extra for the injured worker: time wasted, unpleasant evaluations and depositions, and the “limbo” status of not knowing one’s fate.

Now, your humble blogger is a defense attorney, so why does it matter?  No, dear readers, I have no plans on leaving the Jedi to join the Sith, but given the opportunity, some note should be made of this fact pattern to allow Judges to consider such overlaps of fact and law prior to approving a settlement.  Frankly, injured workers can do the same and insist on speaking up before the C&R is approved.

As to the applicants’ attorneys – they are in no way shocked by this reasoning.  After all, this very argument is used when the attorneys of substance attempt to shake off the lien of the “headhunter attorneys” who take in a client, file an application, and then lie dormant until a real attorney picks up the case.  Then they are promptly on the scene with a lien and wanting a share of the other attorney’s fee.  (We all know who these guys are, and while your humble blogger has a healthy respect for substantive applicant’s attorneys who apply their skill and craft to secure benefits for their clients, these headhunters smack of unethical conduct that only hurts the injured worker).

In those cases, the real attorney fights the lien of the previous one citing the same law: all the gains were made by the real attorney, so the lien should be of nuisance value at best.

If you are of the mindset that you will treat the injured worker fairly, and an applicant’s attorney can only increase your expenses but not deliver any benefit to the injured worker, then requesting a reduced attorney fee both benefits the worker and discourages scorched-Earth attorneys from taking the case, or at least doing some sort of reasonable triage/intake analysis before signing on.

Just something to bear in mind, dear readers, as the California State Ship Workers’ Comp keeps puffing along the Iceberg Sea.

After Wednesday’s post, this humble blogger was flooded with requests, suggestions, demands, and even threats – all urging another post on the going and coming rule.  Who am I to deny all of these imaginary readers what they want?

But this one – this case for you to hold and cherish for the duration of your weekend – comes from the Court of Appeal: it is, of course, the matter of Lantz v. WCAB/SCIF.

Applicant Lantz was a correctional officer who was tragically killed after a car crash on the drive home from work.  Now, this would not be a blog post if we could simply say “going and coming rule – take nothing!”  The facts in this case complicate the matter to the point where the Court of Appeal felt an opinion was warranted.

Applicant was not just driving home from work on any day – he was required to work an extra shift after his regular shift.  So, while he would normally be commuting home, he was working and when he would normally be home and not working, he was driving home.

The question is whether requiring an employee to work an additional shift at the same location, constitutes a “special mission” so as to defeat the going and coming rule.

The Court of Appeal recognized the special mission exception, but also noted that the special mission exception requires (1) extraordinary activity as compared to routine duties; (2) AOE/COE; and (3) activity was undertaken at the express or implied request of the employer and for the employer’s benefit.

Using this standard, the COA readily conceded that prong 2 and 3 were satisfied – working an additional shift is, no doubt, within the course of the duties of the employee and the activity was mandatory- required by the employer for its benefit.

On the other hand, the first prong is not so easily satisfied.  Is working another shift truly extraordinary?  The test is whether the location, nature or hours of the work to be performed deviates from the norm.  In this case, the COA deferred to the WCAB’s determination that the extra supervisory duties that may come with this particular shift did not rise to the level of extraordinary.

Of interest here is the ready recognition by the Court of Appeal that it is possible that a sudden change in work hours would be extraordinary duty.  The image comes to mind of a deputy suddenly yanked from dispatch to work intake and processing, or a maître de asked to help unload a truck.

One other nugget to consider here:  the Court of Appeal addresses the argument oft cited by lien claimants, applicants’ attorneys, and crazies roaming the streets of San Francisco: “Liberal Construction!”  No, no, dear readers, this isn’t in reference to a bunch of long-haired college hippies building houses out of recycled milk bottles, but, instead, a quote from Labor Code section 3202: “This division and Division 5 … shall be liberally construed by the courts with the purpose of extending their benefits for the protections of persons injured in the course of their employment.”

Ok, calm down, dear reader – I know you’re pounding your keyboard and thinking “why is Greg wasting my time with this? I’m not running a prison, why is this case relevant?”  Well, here it is – the nugget you can take to every case in the workers’ comp system that is set for an AOE/COE trial.

“The policy of liberality is predicated upon there being a person who is ‘injured in the course of [his or her] employment’ and therefore, when given its plain meaning, does not aid in deciding the threshold question of whether the employee was injured in the course of his or her employment.”

So, the next time there is a question of whether the injury is compensable at an AOE/COE trial, any effort to use the liberal construction language of 3202 to lower the standard of proof the applicant must otherwise meet, Lantz should be at the ready to negate the argument, as a citeable, binding, published decision.  Have a good weekend!