My dear readers will recall, especially after their first cup of coffee for this morning, that their humble blogger once cracked a proverbial egg of wisdom for their review in the form of a multi-part blog-post on serious and willful misconduct.  Well, that topic has seriously and willful reared its ugly head once more, this time in the form of an (unfortunately) unpublished Court of Appeal decision.

The CoA reversed the holdings of the Workers’ Compensation Appeals Board and the Workers’ Compensation Judge, holding that since “no substantial evidence of knowingly wrongful conduct on the part of [the defendant]” was to be found, the award must be annulled.

The case is that of Jorge Mora v. CLP Resources, Inc.  Jorge Mora was a temp carpenter in the employ of CLP, who was sent out to a job site with a series of safety problems, including a table saw not secured to a table and with no safety guard on the saw.  By the third week, Mr. Mora had attempted to report these safety issues to his temp agency (at least, according to his trial testimony, which appears to be in conflict with his deposition testimony) but was not able to report the specific safety problems.

Prior to his starting the job, a CLP safety inspector had been to the site, but had not noticed anything wrong.

Unfortunately, Mr. Mora lost his balance while working one day and placed his hand on the saw, sustaining cuts to his left hand.

In addition to his workers’ comp claim, the applicant sought increased benefits under Labor Code section 4553, alleging that CLP’s serious and willful misconduct was its willful failure to provide a safe place to work.  At trial, the Workers’ Compensation Judge found that the testimony of a CLP witness as to the inspection of the work site was “questionable” and found that CLP had engaged in serious and willful misconduct when it failed to adequately inspect the jobsite.

In rejecting this finding, the CoA reasoned that 4553 requires the serious and willful misconduct to be on the part of an executive, managing officer, or general superintendent of the corporation.  The CoA found that there was no findings (or evidence to support a finding) that CLP had specific knowledge of a dangerous condition – it’s inspection did not reveal it, and Mr. Mora’s comments were also vague enough so as not to put CLP on notice of the condition.

To sum up – the target in this case was the temp agency that did an inspection of the job site, found nothing wrong, and allowed its employees to go there.  Hypothetically, the temp agency was negligent in how they inspected the site.  And, come on folks, who inspects a factory when it is in “shut down” condition?  Who inspects a construction site employing men using power tools when there are neither men nor power tools on the site at the moment?

That being said, negligence is not serious and willful misconduct.  Remember, all those of you on the applicant side of the room, Labor Code section 4551 would serve to reduce the recovery of almost every single injured worker, as you could make a claim for employee negligence in almost every single workers’ comp claim (lifted with your back instead of your knees? That’s a Negligence.  You weren’t holding the steering wheel at “10 and 2”? That’s a Negligence.  Didn’t sit at your desk with proper posture?  That’s a Negligence.

Now, here’s another fun thought: this is not the case where a worker blindly goes into a dangerous situation intentionally created by an evil employer.  This is a case where a 13-15 year veteran of man’s war on wood (carpentry) was aware of a dangerous situation, knew it was dangerous, and should not have continued to work there.  If CLP didn’t want to hear it, as he claims, he should have declined to willfully and intentionally place himself in harm’s way.

But he didn’t.

He was warned that work was hard to come by and he decided to willfully expose himself to a serious work condition where the likely result was his own harm.

If anything, CLP should have explored turning the Serious and Willful table (carpenters can make tables, right?) back on Mr. Mora.

Now, let’s take a sip of the reality Kool-Aid.  No one will ask Mr. Mora what he did going back to that work place when he knew it was so unsafe, because he will explain “I needed the money” and everyone will understand.

Of course, when that same reason is given by an employer that can’t afford to buy workers’ compensation insurance, it is drowned out in the calls for the employer’s blood.  After all, no one deserves more contempt or hatred in California’s workers’ compensation system than someone who tries to create jobs for his fellow Californians.  (Please note, dear readers, your humble blogger is not advising you to violate the law or operate without workers’ compensation insurance.  He is just commenting on the lack of sympathy a desperate small business owner receives as opposed to a desperate employee.)

Just a thought, dear readers, just a though.

Here at the humble blogger institute, we are constantly at the forefront of new ideas which, if implemented, will be very successful.  Assuming, of course, that success is measured in the goodness of intentions, and not in any sort of results.

Right now, the panel QME system, to borrow language from the youngins, “sucks.”  It takes six months to get a panel, the Medical Unit will use any possible excuse to kick your panel request to the curb (letting the wrong done you by the treating physician stand for yet another six months), and the pickings on the panel itself can be slim depending on where you are – pretty soon, you’re dealing with the same faces over and over again.

So, if we’re not willing to put more cheese in the workers’ comp mouse trap by paying QMEs more (and attracting new physicians to the game) perhaps we need to embrace the growing trend in the general medical community: let’s open the door to nurse practitioners.

In some states, nurse practitioners can prescribe medication, open their own practices, and generally treat and refer patients to care.  How hard will it be for a nurse practitioner to take measures as directed in the AMA Guides and apply them to generate an AMA compliant report?  Seriously, folks, we have attorneys and adjusters that are practically experts at AMA Guides and Almaraz/Guzman – a nurse practitioner should be even more capable than us, or at the very least, capable enough.

Also, Nurse Practitioners graduate with significantly less debt, and so can take jobs that don’t pay as much while still paying their bills.  So, while a doctor who is 5 years out of 30 in paying off student loans might think that his or her time is better spent seeking more lucrative engagements, a nurse practitioner can afford to take on the QME jobs for the QME paycheck because of the lower overhead.

Currently, Labor Code section 139.2(b) allows appointments “if the physician is a medical doctor, doctor of osteopathy, doctor of chiropractic, or a psychologist” but not a nurse practitioner.

Now, your humble blogger understands that some people have reservations about nurse practitioners.  Doctors have long held a very esteemed and respected position in our society.  Some might be hesitant to deviate from this cultural authority.  Others, particularly in the defense community, might be concerned that nurse practitioners would erroneously rely on subjective complaints without verifying the objective signs of impairment necessary for many ratings.

That being said, your humble blogger suggests that this can be remedied with proper training and screening.

So, what do you think, dear readers?  Is it time that the world of Workers Compensation joined in the dawn of the Nurse Practitioner?

Welcome back from your weekend, dear readers.  I know we it has become a cultural norm to hate Mondays, so I bring you this special treat that will surely lift your spirits and restore some faith in humanity that is forgivably lost from repeated exposure to California’s workers’ compensation system.

The case is that of Adam Truitt v. County of San Diego.  Deputy Truitt was employed by the San Diego County Sheriff’s office for over 20 years, during which time he sustained an injury in the form of Lyme disease.  After a trial, based on the reports of the primary treating physician and the qualified medical evaluator, applicant was found to have sustained a 0% permanent impairment with a need for future medical treatment.

Effectively, the Lyme disease caused some symptoms, but did not in any way impair applicant’s ability to perform his job duties.  However, there was a concern, expressed by the primary treating physician, that the stress of applicant’s job could cause flare-ups and worsening of the Lyme disease.

The panel QME did, however, provide an Almaraz/Guzman rating of 24% whole person impairment, but this finding was rejected by the workers’ compensation Judge because the panel QME did not provide sufficient reasoning or justification for an A/G rating, nor did he explain why the particular rating he provided was appropriate.

The split panel affirmed the WCJ’s decision, but the dissent would have had the matter returned to the WCJ to develop the record.

Dear readers, your humble blogger does not expect his sensible and honest readers to stand and cheer because a sheriff’s deputy got Lyme disease.  Instead, the reason to celebrate is the Judge’s opinion.

In his report and recommendation on petition for reconsideration, the WCJ addresses the issue of his declination to order development of the record after the QME failed to meet the requirements of an A/G rating.  “This may appear to be harsh (sic) result in this case, but it is not the WCJ’s responsibility to correct the shortcomings of the doctor’s report, when the applicant is properly represented by competent counsel.”

In other words, the applicant could have deposed the QME or asked for a supplemental report, all on the defendant’s dime, but failed to do so.  The applicant could have objected to a Declaration of Readiness to Proceed, or brought up the issue of developing the record at the MSC.  But that’s not what happened.  Applicant rolled the dice and tried his luck at trial, and lost.

Your humble blogger’s favorite part of the report?  “It is not the role or responsibility of the WCJ to further develop the record when in so doing, the WCJ then becomes the advocate for a party, especially when the party is represented by ostensibly competent counsel … There is no doubt that applicant has a serious medical condition.  However, it is not the responsibility of the WCJ to step in and become an advocate.  That responsibility lies with applicant’s counsel.” (Emphasis added, with pleasure.)

That last part should be chanted as a mantra for every potential attorney that ever even thinks about entering the world of workers’ compensation, long before aspirations to the WC Bench appear.  The Judge is not an advocate for a represented party – the advocate is the advocate for a represented party.

So, the takeaway from this case?

Evaluating physicians must meet the requirements set out in A/G to have an admissible alternative rating; and

The proper role of the Judge is not to be an advocate for one party or another.  Otherwise, we can expect the Workers’ Comp hearing rooms to look like this:

Good news, dear readers!  After a long uphill battle, several angry articles from applicants’ attorneys, and the temporary attention of the non-workers’ compensation world, Assembly Bill 1309 has received that coveted sign of approval – the Brown mark signature.

For those just tuning in and not inclined to read through the prior posts on the topic, AB-1309 is a response to the epidemic of cumulative trauma claims by professional athletes who have minimal contacts with California, sometimes as little as one game.

Governor Brown has signed AB 1309 into law.  Starting September 15, 2013, cumulative traumas sustained by professional athletes of certain sports, namely baseball, basketball, football, ice hockey, or soccer, will be excluded from California’s compensation system if less than 20% of the “duty days” of the last year of employment was spent in California.

Section (d)(1) provides an exception if the athlete spent at least 20% of his or her duty days in California or working for a California team; AND has spent less than 7 seasons working for non-California teams.

Here’s an interesting thought – do coaches count as athletes?  The law doesn’t say (“the term ‘professional athlete’ means an athlete who is employee at either a minor or major league level in the sport of baseball, basketball, football, ice hockey or soccer.”)

Also, AB-1309 took care to leave several prior decisions untouched, including Bowen v. WCAB, Wesley Carroll v. Cincinnati Bengals, and Dennis McKinley v. Arizona Cardinals.

All in all, a great send-off for the weekend, no?

Alright, dear readers! Put away your IMR forms.  Drop those Valdez briefs.  Forget all about your treatment-only psyche claim.  It’s time that we look at the true heart of the SB-863 reforms: copy service fee schedules!

That’s right, good people of the Workers’ Compensation world, we’re going to rein in the copy services.

If you’re unfamiliar with the scam, it goes like this: when the defendants want to subpoena records, they’re going to look at the price tag for the services (because they’re the ones paying for it).  So if Jack’s Coy Copiers decide to provide a $900 bill for 25 pages of copies, they won’t be getting any more business from Insurance Co. X.

Applicant’s on the other hand, want the copy service to be as expensive as possible.  If you are an efficient, honest, and cheap copy service, the applicants’ bar doesn’t want anything to do with you, because you’re only getting half the job done… that half being subpoenaing and copying records.  The other half is inflicting pain on the defense – letting them know that this will be yet another cut in their litigation budget because they had the gall not to stipulate to 100% PD at the first sign of industrial paper cut.

So, while the defense-preferred copy services find themselves in an arms race to the bottom of the price bracket, the applicant-preferred copy services find themselves in a bidding war to the top.  Note, dear readers, that the basic ideas of free market economics are present in the regulated world of workers’ compensation as well.  If you look at the fee applicants attorneys are allowed to charge for their “services” during depositions, you can see how out of touch with reality that market is.

Well, SB-863 specifically provided for a reasonable fee schedule to be established for copy services (the administrative director and the Commission on Health and Safety and Workers’ Compensation were to do a joint project here).  Well, the CHSWC has come through, and now welcomes public comment on their proposed flat-fee schedule for a set of records up to 1,000 pages.

The report proposes that the first 1000 pages be charged at $103.55, with additional sets available electronically for $5.   Surprisingly, the report does not make a recommendation for electronic-only production.  For example, your humble blogger likes to keep a copy of all records on his computer, so if the subpoenaed records come in paper form, into the scanner they go.

Your humble blogger’s suggestions:

1. Allow a smaller fee for digital-only production; and,
2. Allow service of the subpoenaed records in the same format ordered by the subpoenaing party (so if I order it on CD, the other side should be satisfied with getting a CD).

Overall, though, this is a step in the right direction: here’s hoping this approach is adopted, and a bit of water is thrown on the Scorched Earth policies of some applicants’ attorneys.

As Assembly Bill 1309 sits on Governor Brown’s desk, hoping to bar a whole mob of professional athletes from the hallowed halls of the workers’ compensation venues, one group of workers get to continue enjoying California workers’ compensation benefits for non-California work.

For your consideration, I bring to you the case of Jessie Kenlaw v. Houston Comets.  Ms. Kenlaw worked as basketball coach from 1978 through 2008, and visited California a few times in 2007.  The main argument raised in this case was a jurisdictional one: defendant argued that injurious exposure in California is not sufficient for invoking jurisdiction – there has to be an actual injury in California for the defendant to get sucked into California’s meat grinders.

The argument is sensible enough – it’s not right to invoke California jurisdiction for a workers’ comp claim when the vast majority of the “exposure” is outside of California.  After all, we’re not talking about a situation in which the worker was in California for one day out of a 20 year career, but there was a specific injury here.

The Workers’ Compensation Judge, and the Workers’ Compensation Appeals Board, both rejected the argument.  The applicant’s burden is only to establish through substantial medical evidence that her work activities were a contributing cause of her injury, and in cumulative trauma claims, that’s pretty easy to do, because there’s nothing specific that causes the injury, but rather the job in general.

The facts show that applicant coached three games in California, and for each game she arrived in California two days early.  She participated in practice sessions and did coaching work.

But we’re talking about a cumulative trauma period from January 1, 1978 to July 1, 2008.  And for nine days (out of 11,139, or 0.08%) applicant now invokes California jurisdiction.

Although without much legal support, the defense put forth a good theory – it’s roots were in logic, justice, and basic fairness.

By the by, dear readers, if you’re at all concerned about the businesses leaving California, you should also look at these decisions as a reason why employers might not want to send their workers into California, even for a little while.

Perhaps at the next legislative reform happy hour, someone could pipe up about amending the Labor Code to require significant injurious exposure for workers temporarily in California before allowing workers’ compensation jurisdiction to be invoked.

That would be a… wait for it… slam dunk!

A Modest Proposal on the Broken QME System

No, dear readers, your humble blogger is not proposing that we eat our beloved QMEs.  Nor am I proposing that we go back to those wonderful days when each side would name its champion and let the doctors battle to the (intellectual) death, as was the case for pre-SB-899 matters.

This truly is a modest proposal: let’s pay QMEs more.

Now, dear readers of the defense community, before you delete my e-mails, unsubscribe from my blog, and demand the immediate return of Cognac and cigars that you so generously sent my way (hint, hint), hear me out.

Time is money, and doctors are always short on both.  There are bills to pay, patients to see, etc., etc.

So why not make it worth their while to dedicate more time to the files and applicants and cases?  What’s more, if we put a little more cheese in this brutal mouse-trap that is workers’ compensation, perhaps we could have more doctors persuaded to go through the insane hoops of becoming and remaining a QME.

We’d have fewer repeat players, less grudges, and a greater number of competent physicians participating in this system.  Besides, look at your benefits printout- the biggest costs are not the QME fees, and a few more bucks in that department could bring us better reports (which don’t need depositions to cure), and probably lower ratings based on up-to-date medical findings.

Don’t get me wrong, dear readers, there are great QMEs out there, but the non-workers’ comp demands on a physician’s time, when coupled with the additional expense and delay of the QME application process, make it harder for those physicians unfamiliar with the system to jump into the pool that the Medical Unit keeps nice and warm behind its high walls.

Now, your humble blogger could be wrong on this one, but it looks like 1999 was the last time the regulations were amended to change the monetary value of each unit of time.  Using the Bureau of Labor Statistics inflation calculator, 12.50 in 1999 has the same buying power as $17.55 today.

In other words, to keep pace with inflation, the QME pay should have gone up 40%.  That’s not, by the way, to keep pace with the cost of increased medical school tuition or cost of living in California, which have gone up much faster than the rate of inflation.

So the next time the legislature decides to crack open the wine cellar and engage in some good-intentioned reform, why not slip in a raise for QMEs?  After all, it’s the defense community that’s footing the bill.

In the mood for a crackpot legal theory having to do with LC 5403?  Take this one with a grain of salt folks, this one is for the truly desperate.

There are a variety of reasons why an applicant might not report an injury once it occurs.  The worker might be afraid of the consequences of reporting the injury (work restrictions leading to unemployment), the worker might think that the effects of the injury might go away, or in a majority of cases (if you’re a cynic) the injury never happened, and the claim is in response to some adverse job event (reprimand, firing, etc.)

Well, Labor Code section 5400 requires reporting of an injury to the employer within 30 days of its occurrence, and of course, this strict rule is rendered toothless by Labor Code section 5403, which requires the employer to have suffered prejudice as a result of the delayed notice.

Recently, the workers’ compensation Judge in the matter of Edmonson v. City of Los Angeles, wrote in his report and recommendation on petition for reconsideration that the defendant, for the first time in its petition, “asserts the issue of prejudicial lack of notice, a defense which [the] WCJ has not seen asserted since the 1970’s … That is an affirmative defense, and the petitioner would have had the burden of proving it, had it been raised at trial.”

Now, dear readers, consider this – if the defendant bears the burden of proving that “the employer was not in fact misled or prejudiced by such failure” to report the injury in a timely and accurate manner, how is one to take advantage of this law?  Well, not very often, as the WCJ in Edmonson noted.

But, for some reason, the law remains on the books reform after reform after reform.  Why leave it there at all, when legislature after legislature has taken liberties with every other aspect of the Labor Code?

The law is still on the books, and should be explored under the right facts.  Think of the benefits of diligently and thoroughly investigating an injury which is reported as soon as it happened.  Witnesses can be canvassed and interviewed; recorded statements can be taken while they are still fresh in the witnesses’ recollection; and the injured worker can be given proper medical care and job duties that will prevent further injury or aggravation.

Now, put that investigation on ice for 31 days.  Perhaps some of the witnesses (likely to be other employees) are not employees today.  Perhaps they have moved away or left the employ of the defendant on bad terms.  Perhaps their memories aren’t that great.  The injured worker thought he could just “tough it out” and ended up hurting himself more and more and more, so instead of a simple cut, you have an infection; instead of a sore back, you have a disc protrusion; instead of broken pinky toe, you have hip and spine and psyche and sleep and sexual dysfunction and bilateral lower extremities.

And here’s another thought – look closely at the language of section 5403: “the failure to give notice under section 5400 … is not a bar to recovery under this division if it is found as a fact in the proceedings for the collection of the claim that the employer was not in fact misled or prejudiced by such failure.”

Can we interpret this section to mean that a claim can be denied based on Labor Code section 5403 until the fact is established in a proceeding that the employer was not misled or prejudiced?

Case law on this section is pretty slim pickings, and rightly so – most real injuries are very visible, and the employer almost immediately has some form of notice (actual or constructive).  A foreman seeing the injured worker in pain is probably enough.   But in those rare cases where the employee conceals the injury until day 31 or later, perhaps the defense should be explored.

Have you had any luck with this? Please let me know…

How long should an applicant be allowed to grumble about unpaid sums prior to being required to take action?  After all, promises of riches are great for propping up dreams, but rights are nothing comfortable to sit on.

I bring to you, the curious case of Alonzo Watkins v. Long Beach Unified School District.  Mr. Watkins was employed as a teacher and sustained an industrial injury in May of 1991 (no, folks, that’s not a typo).  A Findings and Award issued in June of 1996 and an Order Approving Compromise and Release was issued in December of the same year (yeah, folks, that’s not a typo).

Fifteen years later, applicant was zealously up in arms about some unpaid $14,000 based on these two events, and then proceeded with the claim that the defendant had to prove that payment was made.  Somewhere along the life of the case, a WCJ issued an order requiring defendants to provide bank statements, cancelled checks, an audit of its available funds, or a statement as to why these documents were unavailable (realistically, the statement could have been as simple as records are destroyed after X number of years).

Defendant didn’t comply with the order, and instead the matter proceeded to trial before a difference WCJ, where defendant produced a benefits printout and copies of two checks made out to applicant.

Now, it appears there was a filing error, and the trial judge was not able to review the other WCJ’s order to produce bank records, so upon reconsideration, the WCJ recommended that reconsideration be granted.  On the other hand, the Workers’ Compensation Appeals Board, in denying applicant’s petition for reconsideration, reasoned that the issue was not raised at trial, and so could not be raised on appeal.

In any case, the WCAB held that it was applicant’s burden to prove by substantial evidence that he did not receive the payment, and that he failed to meet that burden, so the extra $14,000 he was hoping for were not to be squeezed out of the school district (with all its extra money).

But, recall, dear readers, a different case, that of Barrett Business Services, Inc. v. Workers’ Compensation Appeals Board, where the Court of Appeal held that the defendant was liable for the checks sent to applicant’s address of record that were cashed at a cash-checking service by someone (allegedly) other than applicant.

The facts are different, of course, and the fifteen years of patiently waiting for checks to come in did not meet the reasonable test for applicant’s conduct.

The WCAB got this one right, and the WCJs should have given consideration to the costs to the defendant of performing a 15-year search of all bank records based on the unreasonable claims of an applicant fifteen years late and $14k short.

Your humble blogger, once in a while, is blessed with a genius comeback – one that stings with sharpness and wit, while awes with its relevance and coolness.  Unfortunately, these comeback come to your humble blogger late at night when he can’t sleep and is reliving the conversation he had earlier that day again… and again… and again…

The thing to do in such a situation is sigh and move on with your life.  What you don’t do is go out and confront the people you previously conversed with hoping to get set up for that zinger (unless your name is George):

I bring you, then, the case of Janet Parker v. Costco Wholesale Corporation, where the defense sought to raise the defense of statute of limitations on appeal.  There, defendant failed to list statute of limitations as an issue in its answer, at the Mandatory Settlement Conference, or at trial (although at trial would have been too late).

What likely happened was that, facing an adverse decision following trial, defense counsel sought grounds for an appeal and realized there was an argument to be made.  So, why not? Get the kitchen sink and throw it in, what could possibly go wrong?

Well, a lot can go wrong.  First off, the Workers’ Compensation Judge noted in his Report and Recommendation on Reconsideration that Labor Code section 5409 specifically provides that the statute of limitations is an affirmative defense and it can be waived (read that as SHALL BE WAIVED) unless it is raised.

Furthermore, raising such an argument does one thing and one thing only – it undermines the credibility of the rest of the petition.  Every single order issued by a workers’ compensation Judge makes at least one person unhappy, and a good portion of those unhappy people darken the doorstep of the WCAB with their grievances.  So, right out of the gate, the petitioner is facing an uphill battle – don’t make the climb any steeper by raising an affirmative defense on appeal.

Finally, if that wasn’t enough, don’t think you can spin the other side’s wheels with a baseless petition: in this case, applicant sought sanctions under Labor Code section 5813 for a petition it called “frivolous and without any reasonable basis.”  The WCAB declined to award sanctions only because “the attorney and law firm responsible for the Petition for Reconsideration are no longer involved in this matter.”  (Your humble blogger, as is his habit, declines to name any names.)

I don’t like the idea of agreeing with applicants’ attorneys, or criticizing his fellow warrior-poets of the defense bar, but remember, dear readers, we’re supposed to be the good guys and the voices of reason – your arguments should stay within the bounds of logic and good faith, and your kitchen sink should stay in the kitchen (and never the twain shall meet).