Happy Hump Day, dear readers!  The weekend is almost in sight, Monday is a distant memory, and in a short five hours, you will be over the “hump” of yet another week in the wonderful world of workers’ compensation.

Now, I know what my beloved subscribers, twitter followers, and random google search visitors (who keeps googling “humble logger”?) are all collectively thinking: “I am so desperately craving a blog post on the going and coming rule – that’s my favorite rule of all! Don’t disappoint me, Greg.”

For those not in the know, the going and coming rule basically sets a giant wall between coming to (or from) work and work itself.  Like all good rules, this one is riddled with giant exceptions through which elephants can comfortably march in rows of four, but in certain instances it kicks in to shield the employer from liability.  And, as you know, it’s not just workers’ compensation liability, but also liability to third parties caused by the negligence of employees.

So, I bring to your attention the recently writ denied case of Aguilar v. BHS Corrugated North America.  Therein, a worker gingerly hopped into the employer’s rented car to go off-site for an unpaid half-hour lunch break with a co-worker at the wheel.  As you can imagine, on the way back to work applicant sustained an injury and filed a claim for workers’ compensation benefits.

The matter proceeded to an AOE/COE trail, and the WCJ was persuaded by applicant’s position – a benefit was conferred to the employer by having the driver-co-worker have a car available, which was used for personal and business reasons.  Defendant sought reconsideration (as defendants often must).

In a split panel, the WCAB granted reconsideration, reasoning that the “lunch rule” rendered this fact scenario one that leads to a take-nothing order.  Of special interest here is that the WCAB majority rejected the argument that the fact the employer rented the car for the co-worker-driver to use makes this compensable because, the argument itself would lead only to the conclusion that, hypothetically, the driver might have a compensable claim.  “[T]he applicant’s personal decision to travel off premises in that rental car as a passenger during an unpaid lunch break did not render service to the employer and, therefore, did not grow out of or was incidental to employment.”

Had this been a split panel decision which favored the applicant, I would of course, at this point, make mention of the fact that if you want to know what really happened, you should read the dissent.  Being a hopelessly biased defense hack, I have no need to make mention of such a frame of analysis.

The dissenting opinion pointed out what are, in your humble blogger’s estimation, fairly relevant facts: the lunch was at the insistence of co-workers applicant considered his supervisors; the lunch was spent discussing work matters; the lunch was paid for on a company card.  In short, it is a reasonable interpretation that the employer was receiving benefit from the employee’s presence in the car and attendance at the lunch.

Now, a panel decision makes for weak authority before a WCJ, and a split panel makes for even weaker one, but it is interesting to get this peek at the surgical distinction the going and coming rule often calls for, and the continued evolution of this law.
Chins up, dear readers, Friday is just around the corner.

You know the situation in California has really deteriorated, when even Hamsters are being charged with workers’ compensation fraud.

Your humble blogger will decline to name names at this point, but a certain dancer who performed in, among other things, a Kia car commercial, has been charged for workers’ compensation fraud.

Apparently, this intrepid dance collected more than $51,000 in disability benefits, yet continued working in various performance groups and the Kia commercials.

By the by – if you’re on disability, you’re not supposed to be working, because some misguided and unkind people mind consider that sort of thing “fraud” (you know, judges, juries, prosecutors, the tax-paying public and the workers’ comp premium funding consumers).

While IMR awaits its fate with the possibility of a new holding in the Dubon case, the show must go on, and UR/IMR rulings are still made in lovely world of Workers’ Compensation.

A recent panel decision ordered a remand of the WCJ’s findings on whether the UR decision was defective to the level contemplated by Dubon itself.

Applicant sought treatment for his left knee, and the UR decision denied it.  However, in the UR report itself, reference is made to the left knee being a denied claim, when it is actually admitted.  The WCJ held that the UR decision must be taken through the IMR Process, but subsequent to that determination, the WCAB issued its ruling in Dubon.

As my beloved readers will recall, the Dubon decision held that a UR determination need not go through IMR if it untimely or suffers from a material procedural defect that undermines the integrity of the UR decision.  However, Dubon also held that, even if the UR report proves invalid, the applicant still bears the burden of proving that the treatment is necessary, opening the door for the defense to copy-paste the UR reasoning into its trial brief.

That being said, UR is not there to determine the compensability of a claim – that’s what the Medical Unit and AMEs are for.  So, if the UR physician mistakenly writes that the left knee claim is denied, rather than accepted, but then provides the sound medical reasoning necessary to deny authorization for the treatment, is that a material procedural defect as per Dubon?

What if the UR physician had noted that “medical records reflect that applicant’s favorite color if blue?”  Well, applicant, aflame with righteous indignation, could pound the witness stand and scream from the top of his lungs that his favorite color is green.  He could bring in witnesses, including childhood friends, that would confirm that as long as they knew applicant, his favorite color has always been green.  In fact, applicant could conceivably wear a green shirt and a green tie to the trial, such that the WCJ, on pain of public flogging, could make no finding other than applicant’s favorite color is green.  What difference does it make?

The medical reasoning is still there, and has nothing to do with whether the injury is accepted, or denied; compensable or not.

Now, on the other hand (and as a fair and impartial defense hack, your humble blogger must always provide the other hand), the weakness of the UR report doesn’t have to be just a material procedural defect, but rather a material procedural defect that undermines the integrity of the UR decision.  Accordingly such a flaw as not recognizing that a particular injury is accepted, impeaches the “integrity of the UR decision.”

Well, we don’t have an answer just yet, but it would be interesting if a mistake of a logically irrelevant fact were sufficient to jettison the IMR procedure in a particular case.  Of course, if the stars align on Dubon, it may become a moot point.  Here’s hoping!

Every time a lien gets denied, an angel gets its wings.  At least that’s what the Labor Code says [citation needed].

The recent case of Llamas v. Guild, Inc. provided a wonderful example of why it is important to properly draft settlement documents.  Identify your objectives – identify the parties involved in the agreement and what their respective interests are – shift as much of the cost away from those parties and to other people as you can.

Llamas’s attorney had retained a psychologist, Elena Konstat, Ph.D., to evaluate and prepare a report on the state of applicant’s psychiatric condition.  Dr. Konstat sought reimbursement for the cost of her evaluation and report from the defendant.

When attempting to settle this case, however, the parties, having declined to invite Dr. Konstat to the negotiation table, resolved applicant’s claimed injuries to her lower back and spine and settled the claim by way of Compromise and Release.

But what about Dr. Konstat?  Is she to be left in the cold?  Apparently…

The WCAB held that, as the burden of proof is upon the lien claimant (Labor Code section 5705) to prove its claim by a preponderance of the evidence (Labor Code section 3202.5).  Thus, it is Dr. Konstat’s burden to prove that it is more likely than not that the services she provided were reasonable, and the fees charged for those services as well.

In this case, the application was never amended to allege an injury to the psyche, so there was no contested psyche claim to make her services necessary (Labor Code section 4620: “a medical-legal expense means any costs and expenses incurred by or on behalf of any party … for the purpose of proving or disproving a contested claim.”)

Your humble blogger can’t help but wonder – shouldn’t a lien claimant make it standard intake procedure to make sure there is a contested claim?  Dr. Konstat, after all, is out her time in evaluating the applicant, writing her report, and possibly reviewing records and performing some research.

On the other hand, perhaps this threat of a psyche claim and the related litigation costs made it easier for the parties to reach a middle ground on settlement, splitting the costs that would have been incurred if the application had been amended to include a psyche injury.

Do you hear that, dear readers?  The fluttering wings of a new angel.

So, dear readers, are you tired of hearing about how you will be replaced by machines yet?  Does the thought of an automated society free from human errors (and industrial injuries) no longer scare you so much as bore you?  Do you find yourself writing an angry e-mail to your humble blogger demanding blood (in the form of workers’ compensation injuries as described in recent panel decisions)?

Then I have some bad news for you, dear readers – here comes another techie post.

Google recently announced that it plans to produce (and possibly sell) a self-driving car.  The video for this car is actually pretty cool: no steering wheel, no brakes, just a couple of buttons to start and stop.

Obviously, we’re a long way from seeing these soulless automatons swarm our streets, but it kind of makes you wonder as to how secure more and more jobs are.

There is a huge employment sector for drivers – taxis, limos, buses, and trucks.  Those are a lot of jobs that could be affected by the mass production and distribution of driver-less cars.

Now, you’re probably thinking to yourself “Greg, it’s a good thing you’re so handsome, because you’re crazy! No one is going to get rid of a driver just to cut down on the workers’ compensation premiums – there’s too much risk if the car malfunctions.”

Ahh, you’re right on both counts dear reader: as handsome as I am, there is still the greater picture involved if businesses adopt driver-less cars.  I would be willing to bet my shiny penny collection that there are already tort attorneys preparing articles about how a google-produced driver-less car eliminates the liability for driver negligence, and instead turns Google into an insurer for strict product liability.

So, picture your garden variety employer: he or she can continue to pay higher workers’ comp rates to employer drivers, and also carry insurance for all the third-party liability, in the event his or her driver hits another car and is at fault.  Or, the employer could pay a little extra for a driver-less car and avoid the workers’ compensation premium while also having an argument to shift all liability for car accidents onto the manufacturer.

The point your humble blogger is making is that technology, once again, is making it more cost-efficient to minimize human labor, and a safe, reliable, and street-worthy driver-less car puts skilled labor – professional drivers – on the chopping block.

What California needs to do, and I mean RIGHT NOW, is make it cheaper to continue to employ human beings.  A good place to start is the cost of insuring against industrial injuries.

In the alternative, I suggest we all rent Terminator 1 and 2 (don’t bother with the others) and take good notes on how to fight the machines.

Put down that pen! Step off that ledge! Do not cave in on that medical treatment dispute!

From the looks of it, the Dubon matter may have a new twist in the works – the WCAB recently granted Reconsideration to consider the issues raised by SCIF, which means there may be a new opinion coming down soon that will close the lid on the Pandora’s Box of issues opened by the original opinion.

Before we get too excited, we should all note that “the Appeals Board’s February 27, 2014 en banc opinion in Dubon shall remain in effect and binding.”

On the other hand, there are more than a few reasons to be optimistic.  For starters,  After Dubon, a new commissioner joined the panel – Katherine Zalewski.  Commissioner Zalewski brings particularly persuasive expertise on this issue because she was instrumental in the drafting of SB-863, which brought the embattled IMR process to California.  As someone who was in the proverbial kitchen while the even-more proverbial meal was being prepared, she can speak with considerable authority as to the intent of the Legislature in drafting and passing SB-863 and IMR with it.

Additionally, whereas the original Dubon opinion had the benefit of the parties’ respective arguments, since Dubon, the internet, the lecture circuits, and even the smokey rooms where benefits are poker chips and all the big wigs of the big firms play for keeps, have been filled with opinions, analysis, and arguments for and against the reasoning behind allowing the WCAB to decide whether or not a particular medical dispute is confined to Independent Medical Review.

Now, in all likelihood, if you’re an adjuster with an attorney on the file, you’re getting an e-mail after every UR decision with a “Dubon analysis” which provides not only confirmation of the timeliness of your UR report, but its validity for other weak points, which I will decline to list here in appreciation for the three applicants’ attorneys that read this blog (But your honor, the humble blogger said the UR report was defective because…)

That being said, a WCAB en banc opinion returning all medical disputes to UR and IMR will not only eliminate the need for this analysis (and the associated billables), but also the resulting litigation – after all, an applicant’s attorney playing the scorched Earth campaign is more than happy to inflict a needless IMR bill on the defense while also filing for an expedited hearing to perform a Dubon challenge.

So, here’s hoping for a favorable result from the WCAB soon.  In the meantime, don’t cave on the medical treatment awards, even in the face of some UR defect or another: in a best-case scenario, help is on the way, and in a worst-case scenario… well… just look around, because this is it.

Happy Memorial Day 2014, dear readers!  No doubt you woke at the crack of dawn on your day off and eagerly hit “refresh” on this website until this post appeared – I thank you for the enthusiasm and the loyalty, of course.

Now, before I lose your attention to the campgrounds, the BBQs, and the sales, might I ask you consider an alternative way to celebrate Memorial Day this year?

Those of us not living under a rock for the past decade and change are aware that the United States has deployed men and women into combat in Iraq and Afghanistan.  There are several less-known engagements happening around the world that also put our troops in harm’s way.

Many soldiers return with a list of injuries – brutal scars, missing limbs, and Post Traumatic Stress Disorder (PTSD).

We can all celebrate Memorial Day by just taking the day off (don’t worry, dear readers, your humble blogger will be at his post, striving to deny benefits, as always), and we can celebrate it by going camping or relaxing or doing any number of things not related to the purpose of the holiday.

But, for at least a few moments, consider celebrating Memorial Day this year by offering assistance to a veteran or group helping to re-integrate returning combat vets into civilian society.  If you have an organization you would like listed on this site, please add in the comments or send me an e-mail  and I will post it here.

Happy Memorial Day!

No, no, dear readers, you haven’t overslept.  It’s not Friday, but feeling wretched on denying by beloved followers a proper update on legal developments as they happen, I have elected to provide a post today rather than tomorrow.

The Workers’ Compensation Appeals Board has issued an en banc opinion (consisting of five commissioners, given the two vacancies remaining on the Board) in the case of Warren Brower v. David Jones Construction.

The basic facts are simple enough: applicant sustained an injury in December of 2005 and was on temporary total disability for the 104 week maximum provided by Labor Code section 4656(c)(1).  It appeared very clear, very early on, based on the opinions of the AME, that this would be a total permanent disability case.

After paying more than 104 weeks of temporary total disability, defendant began paying permanent disability advances at a rate of $270 per week.  Ultimately, applicant was found totally permanently disabled, but that wasn’t until October of 2011.

So the issues rear their ugly heads quiet clearly: is applicant entitled to the difference between his life pension paid at the temporary total disability rate, as per Labor Code section 4659(b), and the $270 per week advanced during the four-year period prior to being found P&S?  Does COLA apply after the P&S date or on January 1 after the last temporary disability payment was made?

The WCAB held that an applicant found to be totally permanently disabled is entitled to retroactive payments from the last day of temporary disability benefits.  Additionally, COLA kicks in on January 1 after TTD funds are exhausted.

Now, some of you might be scratching your heads and thinking about a Supreme Court case by the name of Baker v. WCAB.  In that 2011 case, the Supreme Court held that “the Legislature intended that COLA’s be calculated and applied prospectively commencing on the January 1 following the date on which the injured worker first becomes entitled to receive, and actually begins receiving, such benefit payments, i.e., the permanent and stationary date in the case of total permanent disability benefits.”

The Brower opinion considers this as well, but also notes that the Baker decision specifically limits its holding to pre-4/19/2004 injuries.

So, dear readers, what’s to be done?  Well, you might get sneaky and think that you can just keep paying temporary total disability, even past the 104 week period, to avoid triggering COLA increases.  Your humble blogger advises against this.

Section 4656 specifically states that “aggregate disability payments for a single injury … shall not extend for more than 104 compensable weeks.”  In other words, the defendant has no right to waive 4656 and must start making PD advances.

Additionally, because TTD benefits are of a different species than Permanent Disability benefits, an aggressive applicant’s attorney could argue that all the temporary disability benefits paid in this matter are overpayments, and should not be credited against the retroactive permanent disability.

In this case, the defendant actually overpaid TTD by several weeks, with the last payment being in late January of 2008.  The WCAB allowed defendant credit for the overpayment, but held that the COLA would kick in on January 1 after the 104 weeks of TTD were exhausted, rather than the actual last day of TTD paid.

SCIF, the insurer in this case, may appeal, but to your humble blogger the reasoning of the WCAB is fairly solid.  This applicant was found by the AME to have suffered an injury far more debilitating than most workers sustain, and opined that he was completely incapable of ANY employment.

How would you like to be in his condition: in pain, heavily medicated, and incapable of providing for yourself, and then told you have to survive on $270 per week for four years, until there is a P&S report?

It doesn’t take long for a participant in the workers’ compensation system to develop a rather healthy amount of cynicism with respect to supplemental job displacement benefits.  They are rarely used for their intended purpose, and, prior to SB-863, were just another couple of thousand dollars in the settlement amount.

It might be that someone in the legislature took notice of this little fact.  Assembly Member Curt Hagman introduced AB1749 early this year.  AB1749, as it is currently written, would require the administrative director to report to the state legislature, no later than January 1, 2016, on the results of the SJDB voucher program, namely “the extent to which injured workers who obtained specific education or training with vouchers … obtained employment related to that education or training.”

In other words, rather than taking employers’ coins and throwing them into the wishing well of good intentions (and then forgetting about them) someone actually wants to know if this program does any good, or if it is another waste of employers’ time and resources.

AB1749 isn’t law yet, and it’s not going to fix our broken system by a long shot, but this humble blogger welcomes it as a step in the right direction.  If there is no benefit involved to the voucher program, whether because it is not utilized at all or utilized on pursuing education for hobbies rather than marketable skills, perhaps it is a benefit that the government should not be forcing employers to provide.

More importantly, the legislature should be encouraged to make these sort of inquiries and on the grander scale.  Do employers and employees benefit from the various benefit schemes currently in place?

WCDefenseCA sends its warmest regards and thanks to Assembly Member Hagman for even peering into this dark swamp we workers’ comp folks call home, and encourages him to continue.  If you’re looking for problems to fix, we’ve got them a plenty!

Pop quiz, dear readers.  You requested a supplemental report from a panel qualified medial evaluator, providing all treatment reports not available at the time of the original evaluation.  Sixty days later, there’s no report.  What happens?

Well, if you reach for the panel case of Lopez v. C&S Wholesale Groceries, you would say yes – a party who doesn’t get a supplemental report in 60 days, as required by California Code of Regulations section 38(h).

On the other hand, if you were to look at the panel case in Ramirez v. 3 Day Blinds Corporation, the answer would be no.

So, now we have yet another panel case, this time, Garcia v. Loaves and Fishes of Contra Costa, which again finds that no new panel is necessary.

The facts are a bit convoluted though, so bear with me (your humble blogger is not ignorant of the fact that today is Monday and the line at Peet’s Coffee was too long to tolerate today).

Defense counsel requested a supplemental report from the Panel QME, and more than sixty days later, no report was available.  Naturally, the defense filed an objection and requested a replacement panel, so the matter proceeded to hearing.

Apparently, the QME was in the process of moving his office, and didn’t get the request for a supplemental report.  Under the MSC judge’s guidance, the QME’s deposition was set and the issues raised in the original request for a supplemental report were apparently addressed.

But… shouldn’t the defendant be entitled to a new panel?

No.  In this case, the factors seemed to weight against issuing a new panel.  The transition of the PQME’s office provided a reasonable excuse for the failure to respond in a timely fashion, and the fact that the QME made himself available for deposition also relieved some of the harm done to the defense.

The WCAB denied defendant’s petition for removal and the Court of Appeal denied review.

Now, dear readers, we’re all grown men and women, so I’m going to be frank with you.  As previously revealed on this blog, there is no Santa Clause, the Easter Bunny does not exist, and late reports are excuses for a replacement panel.

Both sides do this and regularly – if a QME is favorable to your side, the report can be one day late or 45, you won’t object because you don’t want a new QME.  At the same time, if the QME’s office regularly rings with “quacking” noises, you’re probably going to look for any excuse to get rid of him, including a one-day late report.

The WCJ is absolutely correct – although there is a very firm deadline of 60 days for a supplemental report, there is no requirement that a replacement panel issue.  On the other hand, we know that a replacement panel is a remedy some judges are ready to provide for a late panel, and the inconsistency can be pretty frustrating (as is common with many things in the comp world).

Now, bear in mind, dear readers, that your humble blogger is not committed to one camp or the other.  When a defense-friendly QME is a month late with his report, it’s silly to issue a whole new panel and start the process over.  On the other hand, when a defense-hostile, drug-dealing, good-for-nothing QME can’t get his act together to get a report out in 60 days, justice demands he get the boot and a new panel issue.

What we need is a consistent rule, or some citeable authority, so we know ahead of time what’s going to happen with a late report, and what the consequences are.  If we had such a rule, perhaps we could avoid unnecessary litigation on this point.

However, until the WCAB gives us a solid, binding rule, one way or another, we can expect to take our chances with this again and again.

What do you think, dear readers?  What should the rule be?  If the report is late, should a party get a replacement panel on demand?  Should the right to request a panel be limited to the party that submitted the request for a supplemental report?  If a new panel is not the remedy for a late report, what should the remedy be?

I can think of a few alternative remedies:  If the report is late, the bill should be reduced by some amount.  The late report might generate a citation which, along with other citations, should lead to a probation status as a QME (and perhaps probation status can have a mandatory reduction in the statutory fees to which QMEs are entitled).

In the meantime, dear readers, keep those DORs handy, the calendars current, and your fingers crossed.

Have a good week!