The other night, your humble blogger had trouble sleeping.  The world is full of so much injustice – insurers and employers everywhere are exploited and abused by the very system they themselves fund, and yet there is only so much a humble blogger such as myself can do, except to correct these wrongs one case at a time…

To calm my wretched nerves, I pulled an ancient tome from my shelf, the 1937 California Compensation Cases reporter, and came upon an interesting case stemming from a 1936 incident in which fatal coffee was most certainly involved.

The applicant, the widow of deceased employee Oliver Gunderson, was awarded death benefits after her husband was tragically hit by a car while crossing the street.

On the way back from his duties from a pier at which he was to examine the extent of repairs needed for a pipeline, in his capacity as a pipefitter foreman, Mr. Gunderson and his subordinate deviated about five blocks off their return route to buy a pound of coffee.  As it turns out, the employees brew and drink coffee while at work (shocking!) and were not forbidden to do so by their employer.

Just before getting into the employer’s car after buying the coffee, Mr. Gunderson saw another employee in a new car and proceeded to cross the street to speak with him, when the fatal car accident took place.

The award was based on the notion that the five-block deviation was a minor detour, and not an abandonment of the entire mission or purpose of employment, and that crossing the street was arising out of and in the course of employment, as the deceased could have expected to receive news or instructions from his employees.  (The case is Union Oil Company of California v. Industrial Accident Commission of the State of California, 2 CCC 30 (1937), writ denied).

Now, it is entirely possible that back in the day, circa 1937, coffee held some particular importance as an enshrined worker’s right, right next to dignity, a safe work place, and fair wages.  Being a coffee addict myself I can’t help but be sympathetic, but the second part of the analysis is troubling.  Crossing the street to examine a co-worker’s new car hardly gives rise to the likelihood that business was to be discussed, let alone a foreman receiving instructions.

Needless to say, this result did little to help your humble blogger sleep.

Labor Code section 5502(d)(3) says that discovery shall close on the date of the mandatory settlement conference.  “Evidence not disclosed or obtained thereafter shall not be admissible unless the proponent of the evidence can demonstrate that it was not available or could not have been discovered by the exercise of due diligence prior to the settlement conference.”

The language is pretty straight forward, no?  Do your job, don’t waste the court’s time or the time of the other parties, and either explain why you need discovery to be left open, or re-up on your attorney malpractice insurance.  Right?

Well, the term “discovery shall close” is apparently not as clear as a workers’ compensation defense attorney’s conscience.

The case your humble blogger is allowing to ruin his weekend is Rios v. Jones, a recent split panel decision in which two of the three WCAB commissioners ruled that applicant’s exhibits could come in, even though they were obtained after the date of the MSC.

The pertinent facts are as follows: applicant allegedly sustained an injury in 2006, and applicant’s counsel’s attorney filed a DOR to proceed to an MSC, which was held in January of 2012.  The matter was continued repeatedly for various reasons, including, at one point, to obtain vocational rehabilitation evidence.

At a March 19, 2013, hearing, applicant testified that his symptoms had gotten progressively worse since as early as March of 2012.  But he didn’t bother obtaining additional medical reports at that time, and the matter was ultimately submitted for a trial in October of that year. In fact, it appears, based on the WCJ’s report, that the first effort to obtain additional medical reports started in July of 2012.  The WCJ ordered discovery closed and excluded the supplemental reports.

The majority panel, however, disagreed.  Reasoning that the majority of medical reports in this case were from 2007 or earlier, and applicant had been waiting to go to trial since late 2011, that this provides good cause to reopen discovery.

However, the WCAB limited this floodgate to previously disclosed physicians and their supplemental reports, rather than newly found vocational rehabilitation experts and doctors.

The dissent (if you want to know what really happened, always read the dissent), would have denied reconsideration, noting that applicant only disclosed his worsening condition and the need for vocational rehabilitation analysis after settlement negotiations fell through.  Also, this information was discoverable before – applicant could have sought a re-evaluation at any time, but chose to wait four years since his last treatment to seek a new visit.

This decision is fairly new – having only been issued in late March of 2014.  Who knows if the parties will seek review, but as this appears to be one of those uninsured cases, your humble blogger doubts there is anyone with a pocket deep enough to finance a petition for writ of review.

My name is the Humble Blogger, you’ve read my posts, prepare to cry…

Your humble blogger is always a sucker for a love story.  So, when I heard of Melinda O’Connor and her boyfriend, David Muro, pleading no contest to charges of workers’ compensation fraud, I couldn’t help but post on the topic.

Ms. O’Connor worked as a teacher’s aide for special needs children, but then decided she had her own special needs: namely money without work.  She claimed to have sprained her ankle back in April of 2009 and was since out of work.

She received medical treatment, but it didn’t seem to improve her condition any (you know, like when you aren’t thirsty, and you drink water, and you’re not any less thirsty because you weren’t thirsty to begin with?)

Surveillance video was obtained showing, among other things, Ms. O’Connor going about her every day business with no apparent signs of injury, and then using a wheelchair and carrying a cane to attend medical appointments.

Her boyfriend, Mr. Muro, helped her by pushing the wheelchair.

Just to re-cap: after a sprained ankle in April of 2009, we are seeing the conclusion of the fraud case five years later.

Congratulations are due to the law enforcement folks who got this done, of course.  But something needs to change strategy-wise if every prosecution takes this long and costs this much.

If you are going to commit insurance fraud, take some friendly advice from your humble blogger: leave the significant others out of it so you have someone to bail you out of jail.

Why do we need QMEs?  Or  AMEs, for that matter?  Why can’t the primary treating physician make a full review of the records, provide measurements and a list of subjective complaints following the evaluation, and then allow the attorneys or the DEU to plug those measurements into the AMA Guides and come up with a whole person impairment rating?

After all, your humble blogger is a doctor of sorts, and why can’t the Juris Doctorate be applied to fill in the role for the doctor?  It’s not like I would be performing surgery, and I’ve seen enough episodes of House and Scrubs to wing this whole medical stuff, right?

Oh… well fine!

In that case, let me tell you about the recent panel decision in the matter of Tallent v. Infinite Resources, Inc.  Mr. Tallent was employed as a mechanic (what kind of mechanic? A very Tallent[ed] one!)

All kidding aside, Mr. Tallent sustained very serious injuries, and his treatment included orthopedists and neurosurgeons, among others.  In the course of his treatment, he became depressed and was referred to a psychologist.

Ultimately, the QME, a chiropractor, wrote a report in which he provided ratings for all impairment, including psyche and the results of the spinal surgeries.  In writing this report, he apparently relied on the findings of the various treating physicians and his training as a chiropractor and a QME.

Well, as one can imagine, the defendant had a problem with that.  Defendant made the argument that a chiropractic QME cannot comment on the impairments that fall outside of his or her scope of practice.

The WCJ considered both sides of the argument, but ultimately ruled that a Chiropractor QME could and should render opinions on all sections of the AMA Guides, and such opinions did not constitute providing medical treatment outside the scope of the chiropractor’s medical license.  The Chiro QME’s report was supported by the reports issued by treating physicians, which were incorporated into his own.

The WCAB denied reconsideration and adopted the WCJ’s report.

Now, your humble blogger can’t help but ask, as discussed above: why do we need QMEs?  Can’t a primary treating physician take measurements? Can’t a DEU rater be trained in the AMA Guides and just plug those ratings into the AMA charts and graphs?  For that matter, can’t this all be done with software?

If a professional’s expert opinion is valid because of his or her training, rather than any particular license, why can’t the DWC just provide the AMA Boot Camp and call it quits on the whole QME system?

Furthermore, at what point would a chiropractic QME feel qualified in disagreeing with a neurosurgeon or psychologist as to findings, treatment, or causation?  And if the medical referee does not have the training or experience to provide a meaningful second opinion on an issue, what is the point in the objection and the QME/AME process?ss

Your humble blogger has friends from all walks of life – I talk with crowds and keep my virtue, I walk with Kings – nor lose the common touch.  So, it should come as no surprise that as I and my circle of friends were sipping tea and grumbling about our lives into the wee hours, an idea was hatched.

Did this idea have to do with Workers’ Compensation? Yes!

Is it a crackpot idea to reform the workers’ compensation system? Yes!

Am I about to bore you with another Utopian pipe dream, the only redeeming quality of which is that literally ANY system has the potential to improve California’s workers’ comp jungle? Oh, you better believe that’s a yes!

The Anarchist at the table, having heard my ranting about workers’ compensation, made the point that if employers can shift the responsibility of buying car insurance for employee delivery drivers to the employees (see Craigslist for any number of driver positions that require the applicant to have his or her own car and insurance), why can’t the employer do the same for workers’ compensation insurance?

After all, if the experience modification that determines the workers’ compensation rate (to some extent) is determined by the number of injuries the worker sustains and the extent of the injuries, the worker himself has the incentive to work safely and careful and keep his premium down.  Also, he can shop around for the company he trusts and that will promptly pay benefits rather than try to stonewall him.  The injured worker could even base his choice on such options as (1) the Medical Provider Network in the area or (2) the pre-authorization of treatment.  Unions could pool their resources to purchase policies for their members.

The response quickly came from the Communist (the Democrat and the Republican at the table were both already planning their move out of California and quickly lost interest in the arrangement of the deck chairs on the Titanic).  The Communist, calling on his experience with labor union and the plight of the working class made a good point: what incentive would the employer have for returning injured workers to their jobs or even providing a safe work environment?  After all, why bother with safety training or equipment when workers become disposable and someone else is footing the insurance bill?

At that point, your humble blogger stepped out for some fresh air, but upon my return, this compromise seems to have been reached: the best system would require the injured worker to purchase his or her own insurance, and would require the employer to reimburse the employee for half of the premium (some employers, no doubt, would offer to reimburse the entire policy as a competitive recruitment tool, and some employers could continue to provide the coverage as they do now).  This way, both the employee and the employer would have a vested interest in a safe working environment, a responsible insurer, and a careful and responsible work force.

What do you think dear readers?  Are the abused employees of California just seeing another attempt to further squeeze their meager purses by a heartless defense attorney?  Or is this a breath of air to stoke the dying fire of California’s economy?

Now, again, dear readers, before you sharpen your pitchforks, light your torches, and angrily demand a refund on your blog subscription dues, just recall: this is yet another crackpot idea.  It’s something to think about and to (hopefully) encourage a bit of discussion on why we have a system like we do, and what we should do about it.

Happy Hump Day!

If an injured worker gets into a car accident on the way to an AME evaluation, is the injury compensable?

Consider the recent panel decision in the case of Evans v. San Joaquin Regional Transit District.  The unfortunate applicant, having suffered a history of back injuries, now claimed a cumulative trauma to the back.  She was evaluated by an AME, who offered several conflicting opinions, wavering back and forth on the issue of whether there was an industrially caused cumulative trauma to her back, in excess of those past claims for which she had already been compensated.

While en route to an evaluation by the AME, applicant was in a car accident and sustained additional injuries, which she claimed were compensable.  As applicant was rear-ended while at a red light, presumably the compensation would be recoverable from the third-party insurer or the third party him/herself.  However, the unfortunate facts of the workers’ comp system would require the defendant, if the injury is admitted, to pay out first and seek credit or recovery later.

The matter proceeded to trial and the WCJ found both injuries compensable, awarding 15% permanent disability for the cumulative trauma, and an additional 14% permanent disability for the car accident as a compensable consequence.

On review, the WCAB reversed – the AME ultimately settled on the conclusion, after much back and forth, that there was no cumulative trauma injury to the back.

Additionally, the car accident claim was not compensable for two reasons: the first was that it was a consequence of a non-injury, and such no more compensable than applicant getting into a car accident while traveling to receive treatment for a non-industrial skiing injury.

Finally, the WCAB relied on the case of Rodriguez v. WCAB, where the Court of Appeal held that injuries sustained as a result of the litigation process were not compensable as consequences of an industrial claim.

Accordingly, the WCJ was instructed to issue a take-nothing order.

This case offered a good result for the defense, and a good reminder of AOE/COE boundaries.  The workers’ compensation claim is not a part of the job description, and while the events that give rise to the original claim might have compensable consequences, attending an AME evaluation certainly does not.

Jack doesn’t have insurance.  Jack gets an employee.  Jack wises up after having an employee for almost a year, and gets workers’ compensation insurance.  Jack’s employee files a claim for a cumulative trauma injury.  Jack’s insurer refers the file to its defense attorney, who notes that the date of injury, as per Labor Code section 5412, falls on the first day of the insurer’s coverage.

So, 364 days of the cumulative trauma period fall under the uninsured employer’s umbrella, and just one day falls under the insurer’s coverage.  Great right?  Yeah, not so much.

What generally happens when an employer is uninsured, is the Uninsured Employer Benefit Trust Fund gets involved.  UEBTF, after being joined, will pay out anything that the employer is ordered to but doesn’t, and then come after the employer.  Neither limited liability business formations nor bankruptcy protections provide absolute defenses to the UEBTF’s reach.

So why can’t the 1/365 insurer just seek contribution from the UEBTF, who can in turn collect it from the employer?  Because of Labor Code section 3716(b): “it is the intent of the Legislature that the [UEBTF] … is not created as a source of contribution to insurance carriers, or self-insured or legally insured employers.”  The UEBTF isn’t liable for a CT injury when there is anyone else in that CT period that is insured or self-insured.

If that sounds familiar, it should.  California Insurance Guarantee Association (CIGA) has a similar set-up, with a statutory defense to liability when there is any “other insurance” available.  In fact, my dedicated readers may recall the Crawford case, where One Beacon was forced to pay for an entire claim for just 10 days  covered out of a cumulative trauma period, because the other 355 were carried by a now-dead insurer, and CIGA put the target on One Beacon’s back.

So, if you’re faced with a situation like this, do not go forward expecting to recoup 99% of your costs through a petition for contribution.  Instead, focus on shifting the 5412 date of injury away from your coverage completely – you’re not going to get much from the illegally uninsured employer, who might not have any assets or might use its assets to finance its legal defense.

The other player to consider is the District Attorney.  If the DA takes an interest in prosecuting the failure to carry workers’ compensation insurance, the insurers left footing the bill can rightly be considered victims, and should be entitled to restitution, which usually finds its way into a plea bargain.  Talk to the DA, let him or her know what’s going on, and set up a payment plan – you might get some of that money back!

THE FOLLOWING IS AN APRIL FOOLS’ JOKE FROM 4/1/2014.

Hello, dear readers!  Although your humble blogger has confined his ranting to Mondays, Wednesdays, and Fridays, in compliance with what I shall only refer to as Judge Wesley Lucan’s restraining “suggestion”, this is a breaking news alert.

In the late hours of yesterday evening, the Supreme Court of California handed down its opinion in the case of Pacific Pipes v. Workers’ Compensation Appeals Board, ruling that the WCAB has jurisdiction to require employers to provide medicinal marijuana to employees treating for or recovering from industrial injuries.

Jack Warner, an employee of Pacific Pipes, claimed to have sustained an industrial injury over a cumulative period resulting in headaches, sleep problems, and generalized pain.  “I get tired after work sometimes,” Mr. Warner was quoted as saying on the steps of the WCAB.

Mr. Warner’s primary treating physician, Mary Jane, M.D., recommended medical marijuana to ease Mr. Warner’s symptoms.  However, as his temporary disability benefits had been exhausted, Dr. Jane also recommended that the employer furnish Mr. Warner with a dark room in which he could smoke marijuana at work prior to performing his duties of operating heavy machinery and driving the local school bus (on an on-call basis).

The employer was admonished to allow great latitude in Mr. Warner’s choice of music during these self-administered “treatment sessions” and to provide nutritional supplements in the form of chips, cookies, and water.

The employer sought WCAB intervention, but was ordered to comply with Dr. Jane’s recommendations.

After winding its way through the lower courts, the Supreme Court finally reviewed the matter and ruled that Labor Code section 4600 specifically requires employers to provide reasonable medical treatment to cure or relieve from the effects of the industrial injury.  The Court further ruled that California Health and Safety Code section 11362.785(d) was unconstitutional, and void.

In writing for the majority opinion, Justice Wender referred to the employer, Pacific Pipes, as a “narc” and strongly urged all parties to just “chill out.”

There has yet to be any comment from a representative of the Federal Government as to how the relevant laws will clash in the future.

Your humble blogger encourages all employers and insurers to smile once in a while, try to take workers’ comp in stride, and enjoy the rest of your April Fools’ day!

Your humble blogger had the displeasing experience of watching unwelcomed neighbors move in over the weekend.  Just when I was starting to get the feel of the neighborhood, and the rhythm and routine of my fellow renters and sporadic home-owners was working itself out (the noise was at appropriate times; the job departure and arrivals had stopped interfering with each other) these new people moved in!

Now, I have to put up with them taking my prized dream parking spot (that curb near my door), listen to their dog bark day and night, and wait for them to pull out of the driveway so I can go to work and help deny benefits every morning.

Now I can sympathize with the other provisions of the Labor Code – that’s how they must have felt when Labor Code section 4061(i) moved into the area.

You’re not familiar with this one?  It’s one of the more infuriating additions to the rules: Labor Code 4061(i) purports to require a party to obtain a PTP AND an AME or Panel QME report prior to filing a DOR on the issues of permanent disability or work restrictions.

But what if you’re content with the PTP report and ready to go to trial without bothering with a QME report?  What if both parties are content to go to trial based only on the PTP report (not likely, I know).

Well, this blog wouldn’t be of too much use if I wasn’t prepared to offer you some crazy, crackpot, dice-rolling maneuvers on moving files along in the face of an inactive applicant and an inactive applicant’s counsel.

First off, let’s look at the language: “no issue relating to a dispute over the existence or extent of permanent impairment and limitations resulting from the injury may be the subject of a [DOR] unless there has first been a medical evaluation by a [PTP] and [an AME or QME].”

So, you have your P&S report from your PTP, and you offer to stip or C&R based on that report.  No response.  So you go ahead and file a DOR.  When you show up to the Board and the applicant starts citing 4061(i) at you, what’s the response?  There is no dispute!  You’re agreeing to go off the PTP report and applicant is silent (qui tacet consentire videtur).

Now, if your angry applicant is there pounding his fist and (loudly) professing NOT to consent, then let’s check the file – was there a timely objection to your DOR?  Was the objection made under penalty of perjury?  (See California Code of Regulations section 10251).  If the objection was untimely, not under penalty of perjury, or had any other defect, then you should argue that it’s time to proceed to trial.

Finally, don’t forget the laches argument – Vigilantibus non dormientibus aequitas subvenit – Equity aids the vigilant, not the sleeping ones.  When applicant sits on a PTP report for six months without an objection, without a panel request, without an offer of an AME, there’s hardly a reason to keep this file open, and if the WCAB is even slightly concerned about judicial economy, it should discourage the need for a hearing prior to moving cases towards resolution.

But how have the panels been interpreting this most unwelcomed addition to the Labor Code?  The pickings are slim.

Your humble blogger found two panel cases in which the WCAB held that no trial should be set where there had not been a QME or AME report, which is not a particularly encouraging result for diligent defendants trying to resolve cases without wasting money on QME or AME reports and evaluations.

Now, before you put these crackpot ideas into play, don’t forget that your humble blogger’s liability is strictly limited to a refund of your subscription free.  But if you do try to argue your way around 4061(i), please, please, please let me know the results.

As for the new neighbors, here’s hoping they learn to swim with the current, instead of trying to mess up the stream.

Have a good week!

Hello, dear readers!  The clouds have parted, if only temporarily, the birds are with song, and your humble blogger appears as invited into your e-mail in-box with a new blog post.

Like the little rays of sunshine which, even now, grace the windows of your office which you can occasionally see between the stacks of files, now comes a little bit of good news in the workers’ comp world.

I bring you the panel case (writ denied) of Avila v. Barrett Business Services.  Therein, applicant was treating within the medical provider network, and then suddenly stopped, jumping outside of the network.  Of particular interest was the fact that he had two claims – one for a cumulative trauma, and one for a specific injury.  The former was denied and the latter accepted.

Well, applicant’s counsel attempted to use this fact to block an expedited hearing on the matter.  Pursuant to Labor Code section 5502(b)(2), defendant sought to force applicant back into the MPN, filing for an expedited hearing.  Applicant, however, argued that this matter could not be set for an expedited hearing, because the cumulative trauma claim was denied, and therefore it was inappropriate to have an expedited hearing.

The WCJ held, however, that the whole point of section 5502(b) and the SB-863 amendment was to allow these issues to be decided promptly before “large self-procured bills were run up.”  Accordingly, even when there are other denied cases, it is appropriate to decide expedited hearing issues on the admitted cases.

More importantly to the case, however, was whether applicant had the right to treat outside of the MPN.

The main sticking point in the argument was that the defense had provided an MPN printout as a courtesy at some point after applicant began treating.  He eventually selected a doctor that was in the MPN, and yet was not on the printout (the record is unclear as to how this happened).

Applicant continued treating with this invisible, yet MPN-friendly doctor, throughout the life of his claim, until he suddenly stopped.  His testimony, however, revealed that he was happy with his MPN physician, and only changed treating physicians on the advice of his attorney.

Now, your humble blogger is not familiar with the applicant’s firm in this case, so he is hardly able to report the reason for this advice.  It may have been that the good doctor’s bedside manner far outpaced his ability to treat well or write effective workers’ compensation reports.  On the other extreme, it could have been that he was unlikely to provide reports that would have indicated greater permanent impairment and need for treatment.

If we all rack our brains, I’m sure we can think of one or two attorneys that would happily pull their client away from a solid, respectable, and effective treating physician (and thereby pull their client off the road of recovery) to stick them with some quack with a license that’s one more incompetent act away from suspension, but will find endless compensable consequences and work restrictions.  Sure, the applicant will be maimed and never work again, but if he returned to full duty and didn’t need much more treatment, how would the applicant’s attorney get paid?

The WCJ ultimately ruled that the language of Labor Code section 4616.3 (“[t]he employer’s failure to provide notice as required by this subdivision or failure to post the notice as required by Section 3550 shall not be a basis for the employee to treat outside the network unless it is shown that the failure to provide notice resulted in a denial of medical care”) militates against allowing applicant out of the MPN.

The bottom line is, that medical treatment is not a pawn to be moved around the chess board, and treating it like some petty game piece is unacceptable.  The injured worker was happy with his doctor and should have stayed with him.

Have a nice weekend!