Author Archives: Gregory Grinberg

Reminder About Defense Burden on Apportionment

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Alrighty dear readers, we made it to another Friday!

And, not just any Friday.  This Friday is special.  Why? Because it’s the last day before one of your humble blogger’s favorite holidays – Independence Day!  Take it from an immigrant and refugee, dear readers, this is, by far, the greatest country in which to live, evidenced more and more every day that, unlike your humble blogger’s country of origin, the population is free to leave at any time, yet every day more and more folks from all around the world arrive desperate to live here.  We are truly, truly blessed!

But, before we get to the July 4 holiday, let’s take a moment to look at a panel decision on apportionment.  Applicant petitioned to reopen a claim previously resolved claim and, after a trial the WCJ issued an award of 59% PD.  However, defendant sought reconsideration, arguing that the QME had apportioned 50% of the increased permanent disability to a non-industrial MVA.

Now, dear readers, if we were hanging out on the school playground in the 90s right now, I would yell at the top of my lungs “SYKES!” and you would know that you had been bamboozled.  However, since we’re not on a school playground in the 90s right now, I will not do that, and instead congratulate myself on yet another witty pun.

You see, the case is actually Sykes v. Los Angeles County Metropolitan Transit Authority, and the WCAB did no such thing, affirming the unapportioned award.  Why?  Well, keep reading!

The WCAB acknowledged that the initial burden of existence and extent of permanent disability was upon applicant, but that the burden of proving apportionment lay with the defense.  In this case, while the QME offered an opinion as to causation, he also wrote that he had not reviewed any of the medical records pertaining to the MVA.

The WCAB rejected the apportionment opinions of the PQME because (1) he “apportioned to the 2016 non-industrial [MVA] without review of the complete medical records pertaining to applicant’s treatment and condition in relation to the accident”; and (2) the QME “does not explain how and why the non-industrial accident contributed to applicant’s current level of disability for her lumbar spine.”

The opinion then goes on to provide guidance on how a defendant can meet its burden for apportionment and how the defendant did not adequately carry that burden in the Sykes case.

So, here is a quick rundown of what the WCAB is looking for according to the panel opinion in Sykes.

If the defendant is trying to establish apportionment under Labor Code section 4663 (causation of permanent disability) there must be substantial medical evidence, presumably based on review of relevant medical records, and an explanation of how and why the non-industrial event caused a portion of the current permanent disability.  In some off-the-record discussions, your humble blogger has had WCJs summarize this as “but-for the non-industrial event, what would the permanent disability have been?” 

Sometimes this burden is not one that can be readily met – applicants sometimes conduct themselves with less integrity than one would hope, claiming not to remember where treatment was received or claiming no treatment was received for prior events.

Sometimes a physician can review MRI or x-ray films and conclude that some of the damage is much older than the current claimed date of injury and then describe why that damage is causing some of the current permanent disability, but this requires leg-work on the part of the defense attorney and sometimes even a deposition.  Each claims adjuster has to run the analysis – is the delay in resolving the case and the extra litigation cost worth the chance of reducing permanent disability?

If the defendant is trying to establish apportionment under Labor Code section 4664 (prior award of permanent disability), it is defendant’s burden to produce proof that the prior award was issued and also to prove overlap.  After all, a prior award for an injury to the left elbow does not trigger the conclusive presumption that there is permanent disability for the right knee.  Again, this may require leg work on the part of the defense to establish a clear record – both in subpoenaing the WCAB file for the prior claim and showing the records to the medical-legal examiner and eliciting comment on apportionment.

The Sykes case is a very good reminder for us in the defense community that the conclusion section of the QME report is not where the work ends.  We have to look at our own evidence with a critical eye and lay the necessary foundation before we proceed to trial.  Applicant attorneys are certainly looking for weaknesses in the defense case – defendants are best served by identifying those weaknesses while discovery is still open rather than when it is long closed.

Have a great weekend, dear readers!

Quick note on CAAA 2022

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Happy Wednesday, dear readers!

So, as your humble blogger mentioned in his last post, I had the privilege of being invited to be a panelist at the California Applicants’ Attorneys Association conference in Carlsbad, California.  The venue was beautiful, the sessions very informative, and, surprisingly, the pitchforks very rare.

Now, obviously, your humble blogger can count on the fingers of one Chernobyl hand how many times he agreed with the presenters (it’s six, in case you are wondering), but hearing the theories and proposed tactics from the other side was informative and will no doubt be useful in your humble blogger’s never-ending quest to see every benefit denied.

If you have the opportunity to attend next year, even as a member of the defense community, it may well be worth your while to do so, as the seminars provided advance warning of some of the claims we can expect to see in the near future.

Thanks again to my colleagues on the other side for allowing me to participate!

Straight on till Friday, dear readers…

New Copy Service Regs are Out!

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Happy Monday my beloved readers!

Thank you so much for all the kind applicant attorneys who said “hello” during the CAAA conference in Carlsbad this weekend.  And, for those of you kind enough to share your rotten tomatoes and spoiled onions while I was on stage, I have neither the words nor the means to express my gratitude appropriately to you!  I’ll share some more thoughts on the conference with my beloved readers a bit later in the week, but I would be remiss in my duties if I let a single day longer pass without warning you of the new copy service schedule!

That’s right, dear readers, on June 16 the Office of Administrative Law approved the new regulations on the fee schedule to take effect July 15, 2022.

So, what’s new in the regulations?  Well, lots!

First off, all bills must now include the ADJ number (Sec. 9981 (b)(3)).  There are also a new fee scheme for dates of service occurring on or after July 15, 2022:

Flat rate: $180 -> $230;

Records from EDD: $20.00 -> eliminated as a line item;

Electronic Storage Media: $3.00;

The new schedule also allows charges for contracted services, requested services, and surcharges for late amounts.

The new regulations also give a limit of 25 days from receipt by the claims administrator in which to pay or contest the services.  Unpaid portions of the bills are to be increased by 25%.

When an applicant attorney subpoenas records in order to submit them to IMR, those charges are not recoverable if the records are already in the possession of the injured worker’s representative.   Nor are charges recoverable when a subpoena has been ordered quashed.  There is a maximum of four certificate of no records charges.

Finally, and this one is of particular interest… Section 9985 allows for disputes to be resolved by filing a petition before the WCAB or by filing a petition with superior court pursuant to Labor Code section 132.

So, dear readers, after you have recovered from your Independence Day BBQ and have finished putting out the fires started by all those illegal fire-works, if you get a copy service bill for dates of service on or after July 15, 2022, what are you going to do?

Well, you stack that bill up against the language of the new regulations, and see what you have to pay and what you don’t.  But be careful, as the clock is now ticking on a response with a potential for 25% increase for failure to respond within 25 days!

Straight on till Wednesday, dear readers!

No UR? No Problem… if there’s no material change in fact

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Happy Wednesday, dear readers!

Your humble blogger is here for you, as always, with a blog post on yet another one of those favorite topics… utilization review!  The case at hand is Holguin v. First United Methodist Church, a panel decision.

The basic facts are these.  Applicant’s PTP on an accepted case submitted an RFA for a Functional Restoration Program which UR non-certified.  Less than a month after the original RFA, the PTP submitted a second RFA noting “change in material facts.”  It appears that no UR report issued for this second RFA.

However, in the section provided on the RFA to document the material change in facts (page 2 reflects: “include documentation supporting your claim”, the PTP apparently did NOT provide documentation of a change in material facts, but argued with the reasoning of the original UR determination.  

After trial, the trial judge issued an Order that applicant was entitled to the functional restoration program.

On appeal, the WCAB panel first noted that Labor Code section 4610(k) provides that a UR determination stands for 12 months unless “the further recommendation is supported by a documented change in the facts material to the basis of the [UR] decision.”  Since the PTP failed to provide documentation of changes in material facts, the WCAB opined that the original UR decision stood and no further action or response was required by the defendant.

How many times have you seen the exact same thing happen?  “Resubmission – Change in Material Facts” is checked but no change in facts is provided with the RFA?  Your humble blogger sees it a plenty.  Of course, it’s always safer to run UR again but sometimes things slip through the cracks.

The Holguin case is not Earth-shattering and doesn’t change the landscape for us dramatically, but it is an excellent reminder of a potential defense if UR fails to catch every single RFA.

Mileage Reimbursement Goes Up to 62.5 Cents/Mile

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Howdy howdy, dear readers!  How are we enjoying the gas prices lately?  According to gasbuddy.com, the average gas price for California is $6.40 per gallon, while one year ago the average for California was around $4.20, and the year before that, June 11, 2020, gas was just over $3.80.  So, is your humble blogger just griping for griping’s sake?  Not quiet. 

Word is spreading like wildfire that, effective July 1, 2022, the mileage reimbursement rate will increase from 58.5 cents per mile to 62.5 cents per mile.  Accordingly, you may want to be prepared for reimbursing medical mileage and 5710 deposition mileage as well as advancing mileage for med-legal exams.

Driverless Taxis Approved for San Francisco

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Happy Monday dear readers!

Your humble blogger hopes your weekend was restful and rejuvenating, and that you’ve come back to California workers’ compensation with the vigor and will necessary to continue denying benefits.  In the meantime, I’d like to highlight a natural and timeless phenomenon occurring before our very eyes.  The California Public Utilities Commission is allowing Cruise to proceed with driverless taxis and offering passengers rides for a fee in San Francisco.  Although this is a limited test as to time and parts of San Francisco to be serviced, if this proceeds well we could see more and more of the same state-wide, if not nation-wide.

Of course, Sacramento is used to getting brownie points by championing the rights of UBER and Lyft drivers by putting the squeeze on their “employers” while at the same time pricing that labor out of the market and opening the door for more automation.  How much of California’s economy is reliant on drivers?  How much of that economy can we see replaced by self-driving cars?

If self-driving cars are successful, what can we expect to see as an impact in California’s workers’ comp system?  Fewer injuries, both specific and CTs, claimed by drivers, because, of course, there would be fewer workers in that field.

What can Californians in general expect if human drivers are successfully replaced with self-driving cars?  The same thing we see wherever automation is allowed to flourish: more consistent services at lower cost. 

Your humble blogger is cheering the trend towards automation on with both hands.  Now, who amongst my beloved readers will be brave enough to ride a driver-less taxi in San Francisco and report on the experience?

Straight on to Wednesday, dear readers!

WCAB Rejects Psyche PD; Lays Burden on Applicant

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Here we are dear readers! Rounding out another week and welcoming the first Friday in June.

Your humble blogger knows that you’re one foot out the door to start the weekend, but has a quick blog post to offer you before you do just that: the panel case of Sosav. Race Engineering, Inc.

Applicant claimed injury to his hand, psyche, intern system, skin, gastrointestinal system and sleep as a result of an admitted injury, but defendant only accepted the hand.  The parties proceeded to trial and the main issue that went up on appeal is whether psychiatric permanent disability was compensable and could be combined with permanent disability for the hand injury.

So a bit of background – as we all know from studiously reading this most humble of blogs, in 2013 the California Legislature enacted SB863 which added Labor Code section 4660.1, incorporating the following language in 4660.1(c)(1): “Except as provided in paragraph (2), there shall be no increase in impairment ratings for sleep dysfunction, sexual dysfunction, or psychiatric disorder, or any combination therefore, arising out of a compensable physical injury.”

However, in January of 2020, section (c)(1) was amended to reflect “the impairment ratings for sleep dysfunction, sexual dysfunction, or psychiatric disorder, or any combination thereof, arising out of a compensable physical injury shall not increase.”

So we went from “there shall be no increase in impairment rating” to “shall not increase.”  Applicant’s counsel in the Sosa case took the position that this amended reflects that impairment ratings for those conditions shall not be increased by a factor of 1.4, and orthopedic injuries shall, so PD for psyche is recoverable as part of the 2020 amendment to Labor Code 4660.1.

The trial judge and the WCAB were not persuaded.  Looking at the Legislative Counsel’s digest on the amendment, said amendment was described as making “nonsubstantive changes.”

Applicant also argued that the psychiatric condition was what is colloquially called a “pure psyche” claim, resulting from the mechanism of the orthopedic injury rather than a compensable consequence.   The WCAB rejected this as well as the reports in the record acknowledged predominant industrial causation, but did not specify if that causation was a compensable consequence or directly from the result of the mechanism of injury. 

As such, the claimed additional permanent disability for the psychiatric condition was not awarded.

All in all, a good result, no?

So, what can we take away from this as the adventure of Friday night is calling to us?

Based on the Sosa decision, it appears that the amendment to 4660.1 is “nonsubstative”, meaning that we still do not allow increases in PD for compensable consequence psyche cases other than for narrow circumstances (such as violent acts). 

Also, it is applicant’s burden to prove that the psychiatric condition is not only predominantly caused by actual event of employment, but it is likewise applicant’s burden to prove that the psychiatric condition is predominantly caused by the mechanism of injury, rather than a compensable consequence of an orthopedic injury.  We can also infer from the Sosa decision that, at least the Sosa panel, was not inclined to order further development of the record in this case.

Have a great weekend, dear readers!

Fraudster Seen Working the Morning of her Deposition; Pleads Guilty

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Happy Wednesday dear readers!

Your humble blogger hopes the past weekend, longer than usual, was a time of rest and reflection for you all.  But, as we find ourselves back in the thick of it, with the temperatures rising and the children brimming with excitement for the summer months to release them from school and dropped into the freedom of leisure activities, how about a blog post?

I bring you the story of another “successful” fraud prosecution, this one of Yeimi Espinoza, as reported by WorkCompCentral.  Ms. Espinoza plead guilty to one count of “concealing or failing to disclose an event in order to receive benefits.”  To wit, she testified at deposition that she had no other employment even though surveillance conducted on the day of her deposition showed he working in a field before driving to her deposition.

She was ordered to pay $11,238 in restitution and was placed on probation for one year.

The trigger for the investigation? According to Intercare and WorkCompCentral, convict Espinoza was “reportedly observed working in a blueberry field.”  That’s a lucky catch and not a systemic response.

While this certainly may have helped offset some of the wrongfully imposed costs on her employer’s insurer and likely damaged her credibility as to her claim, your humble blogger must sadly reflect that this result seems a limited deterrence effect to the workers’ compensation population at large.  When one is caught with one’s hand in the cookie jar, simply releasing the cookie and going on as if nothing happened is unlikely to dissuade the next cookie bandit.

Hand stuck in a mousetrap after being pranked in the cookie jar

Your humble blogger hopes that in the future, we can see the California legislature take a break from its crusade to drive out any remaining business in California to help protect the population at large from fraud.  As we all know, workers’ compensation fraud has a seemingly endless list of victims.  Insurers and employers are cheated of resources.  Employees with legitimate claims are seem more skeptically because of the prevalence of fraud.  Prices on consumers go up to cover the cost of absorbing, investigating, litigating, and punishing fraud.

Your humble blogger tips his proverbial hat to Intercare for investigating and referring this case and to the District Attorney for taking the case up and prosecuting it.  Another reminder to our never-ending duty of vigilance.

Straight on to Friday, dear readers!

Happy Memorial Day 2022

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Happy Monday, dear readers!

And, more to the point, happy Memorial Day 2022.  As we all know, memorial day is a national holiday to commemorate and honor those veterans that lost their lives in the service of their country.  See past, if you will, dear readers, the auto sales and shopping advertisements.  Look instead to the cub scouts planting small American flags at national cemeteries and the families of the lost coming to honor their graves. 

Please remember also, dear readers, that today is not the day to thank veterans or congratulate them with memorial day – unlike Veterans’ day, today is specifically to honor the lost and deceased.

Now, if your mind turns unwittingly back towards workers’ comp, allow your humble blogger to also remind you that both under California Government Code 6700(a)(7) and under the California Rules of Court today counts as a holiday and any deadlines to take any action on this day is extended to the next business day, or Tuesday, May 31, 2022.

In any case, dear readers, your humble blogger hopes you have a meaningful and reflective Memorial Day and will be there to pollute your in-box and frustrate your positive outlook on the world on Wednesday with another blog post!  

Tech Answer to Outbreak Covid Presumption?

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Happy Monday, dear readers!

Your humble blogger hopes you are having a great time as we approach the start of May.  The year is zipping right by us as we cruise into the future.  Speaking of, it’s no secret that your humble blogger is a big fan of gadgets and technology.  When that interest intersects with the self-destructive obsession with workers compensation, his beloved readers are typically burdened with a blog post… so here we go!

In September of 2020, Governor Newsome signed into law SB 1159 which created various presumptions for COVID exposures.  Some are for the initial outbreak, and some are for certain professions such as law enforcement and healthcare workers among others.  But there’s another section having to do with outbreaks, defined as at least 4 employees (or 4% of the employees at a specific workplace, whichever is greater) testing positive within a 14 day period.

How is the employer supposed to rebut the presumption of industrial exposure in an outbreak case?  Well, we have the tools at our disposal that existed before the outbreak: discovery such as depositions, social media investigation, and investigator interviews.  But, despite the best efforts of Sacramento, the market tends to respond when there is a need.

A company called Estimote has possibly built a better mousetrap by creating collar tags that are worn by employees in the workplace.  The collar tags are supposed to vibrate when two tags are within 6 feet of each other, and also provide contact tracing.  So, if Jill at the office reports a positive Covid test, Jack at HR can check her history for the last 14 days and show which other devices have been within 6 feet of Jill.

Is this a certainty?  Of course not.  Employees can still be exposed to Covid by customers or visiting vendors who probably won’t be wearing these devices.  But the presumption is rebuttable and perhaps this evidence will provide some basis to offer a denial.

While it’s possible that an employee is infected because of contact at work, neither the workers’ compensation system nor life in general operates on possibility – the standard is always probability.   If an employer can effectively demonstrate that an applicant did not have contact within 6 feet of any other Covid positive employees in the past 14 weeks, doesn’t that drastically reduce the likelihood that the exposure occurred at work?

Ultimately, employers will have to weigh the cost of obtaining, setting up, monitoring, and, most importantly, enforcing, such a system against the likelihood of reduced workers’ compensation costs. 

Straight on to Wednesday, dear readers!