Your humble blogger invites you to take a break from the possibly useful posts you might find on this humblest of blogs, and to entertain a crackpot idea which Sacramento may want to consider the next time California goes through its Workers’ Compensation Reform dog and pony show.

Right now, your average employer in California either has to buy insurance or Self-Insure, either on its own or through a self-insured group.  Unlike Texas and (maybe someday) Oklahoma, Californians aren’t too keen on the idea of allowing employers to opt-out.

California’s workers’ compensation system is a “no-fault” system (except for the employer – it’s your fault no matter what you do).  That means that Jack, your habitually hung-over, frequently clumsy, and obviously reckless employee inflates your policy by the same price as John, your careful, diligent, and experienced employee.

It doesn’t matter if Jack gets another injury every month as he trips over yet another object while walking-and-texting, and Jack has never been injured because he’s always bending with his knees and not his back, or focusing on what he’s doing instead of skipping through fantasy-land.  Jack would keep your experience modification high while John would reduce it, and you’d get your rate set every year.

What if John could buy his own workers’ compensation policy and not be included in yours?  What if his diligence, his lack of DUI convictions, and his many years of working without sustaining any sort of injury could get him a really cheap policy (not unlike an auto insurance policy)?  In fact, because John is saving you so much money, you could offer to split the difference with him, and then maybe he’d get to pocket some of the money as a reward for being so diligent.

Now, in industries where serious injuries are fairly common, like in construction and roofing, this plan might not work as the economies of scale would be your best bet for a lower price.  But what about the office-related industries?

Basically, by allowing a worker to purchase his or her own workers’ compensation policy, and allowing that workers’ employer to not cover them, we might create a system by which the really careful employees get to save the money that they are currently saving their employer or insurer.

Just another crackpot idea from your humble blogger… perhaps we could try it alongside the current system?

The Cruel Bite of Labor Code section 5500.5

Hello, dear readers!  As some of you are recovering from your Easter Egg hunts and others are getting ready to buy up the temporarily discounted but always delicious Cadberry Eggs, your humble blogger stands (or sits) vigilante and determined to report to you the victories and vices, the happiness and horror, the good and the bad of California’s wonderful workers’ compensation system.

As my sharp and well-read readers recall, Labor Code section 5412 defines the “date of injury” for cumulative trauma – the first date that the employee suffers disability from an injury, and knows or should have known that the disability was caused by his or her employment.  In other words, the moment the light bulb goes off in that nuclear plant worker’s head that maybe the nuclear plant is causing him to glow in the dark (if one can call that awesome skill suffering a disability).

Meanwhile, Labor Code section 5500.5 limits liability for cumulative trauma to those insurers/employers that employed the (allegedly) injured worker for one year prior to the earlier of (1) the date of injury; or (2) the last date of harmful exposure.

We see this in asbestos cases a lot – you could have a worker not suffering any noticeable injury for many years after the last harmful date of exposure.  We see this in repetitive action cases too – a worker could suffer a disability, like a strained back with time off, and then return to work and continue working (and continuing the harmful exposure).

And so, I bring to your attention the recent panel decision in the matter of Debra Crawford v. Guidant Corporation.  Ms. Crawford was found to be totally permanently disabled due to a cumulative trauma sustained while employed by Guidant.  Guidant, during the relevant period, was insured by two insurers (one after the other, of course) – One Beacon and Reliance.  When Reliance followed the Titanic under the water’s surface, CIGA stepped in to lock shields with One Beacon and repel the claim… not so much.

CIGA, the California Insurance Guarantee Association, is the insurer for last resort in cases where the proper insurer is no more.  However, CIGA will not step in and pay out unless it is the ONLY insurer – if another is available, CIGA bows out, even if the other insurer covered just one day of the 365 under Labor Section 5500.5, and the other 364 days were covered by a now insolvent insurer, the 1-day insurance company gets to absorb the entire claim.

Naturally, in the Crawford matter, the coverage dates for the injury were important.  After all, a person who is 100% permanently disabled basically gets temporary total disability benefits for the rest of his or her life.

One Beacon successfully proved at trial that the “date of injury” should be considered December 9, 1996, which was applicant’s last date of harmful exposure and employment.  Because One Beacon’s actual coverage of Guidant ended on September 1, 1995, there was the feeling of relief and a bullet dodged… until the ricochet came from the Workers’ Compensation Appeals Board.

Granting CIGA’s petition for reconsideration, the WCAB found that applicant’s 5500.5 liability period actually ran from August 22, 1995-1996, because applicant’s first suffered disability was a temporary disability order from August 1996.  So in One Beacon’s case, coverage of 10 days out of the year for Guidant landed them with 100% of the liability for medical treatment and temporary disability benefits that will last as long as the applicant does.

If CIGA were not involved, One Beacon could grumble as it paid 3% of the costs and watched as the balance was carried by the other insurer (or insurers).  Instead, it’s forced to weep uncontrollably and curse the name of the long-gone (and ironically named) Reliance Insurance Company as it carries the full load.

But don’t worry – Beacon will recover these costs through its premiums, and the businesses that pay those premiums will recover their costs from you and me, the California consumer.

The post previously scheduled for today has been delayed upon your humble blogger receiving word that Governor Jerry Brown, the 2nd, 14th, 34th and 39th Governor of California, has filed a workers’ compensation claim before the Sacramento Workers’ Compensation Appeals Board, demanding all benefits and claiming 132a discrimination against the State of California.

Kamala Harris, California’s Attorney General, has vowed to personally represent the State of California against what she called “Jerry’s baseless claims.”  When asked about her experience in workers’ compensation matters, Ms. Harris noted that she is vaguely familiar with Employment Law, but as a regular reader of a workers’ compensation defense blog which she declined to name absent a sizable re-election campaign contribution, she feels perfectly competent to obtain what she called a “don’t take anything” order.

Governor Brown’s Application for Adjudication of Claim, which this blog was able to secure for its readers, claims injury to the psyche, carpal tunnel syndrome from signing various workers’ compensation bills into law, and a vague, hand-written injury which closely resembles the words “it hurts all over.”  The 132a petition appears to be based on failure to alleviate his stress claim, which entails all Sacramento workers referring to him as “the Big J.”

A copy of the application is available to download here.

His attorney’s office, the Sacramento branch of Whey, Cheatum, and Howe (EAMS No. 81154141), declined to comment except to mention that the attorney has not yet met with Governor Brown, but expects to call out his name randomly at the next hearing and hope that his client has appeared.

As your humble blogger becomes aware of more facts in this case, so will you.  For now, we can expect California politics to come to a stand-still as further details become available to the general public.

As my dear readers may recall, the issue of independent contractor vs. employee is one that has been discussed at some length on this blog.  But the issue is one that is alive and well and comes up again and again.  Spelling life or death for a claim, the issue can determine if the injured worker was an employee covered by the employer’s workers’ compensation policy, or a self-employed life-gambler, taking his or her chances against injury.  It also spells the difference between penalties and a misdemeanor for an illegally uninsured employer, or an entity in the clear.

This issue came in the case of Jennifer Alcedo v. SCI/On Trac.  Applicant was a truck driver for On Trac, and would arrive in her own car (with an On Trac logo) at On Trac headquarters every morning and begin her assigned routes and packages deliveries.  She wore a uniform with the company logo, had a regular schedule, and was not allowed to do delivery work for any other company.  Nor was she allowed to turn down an assignment from On Trac.  So, she claimed, she was an employee and entitled to workers’ compensation benefits.

On Trac, on the other hand, produced an Independent Contractor Agreement, which applicant signed by claimed to not have understood because of language difficulties (the agreement had not been translated into Spanish for the applicant).

The Workers’ Compensation Judge found (unsurprisingly) that applicant was an employee and not an independent contractor.  Defendant was unable to produce a witness to testify on its behalf, and the WCJ held that the defense failed to carry its burden to rebut the Labor Code section 3357 employee presumption.   The Workers’ Compensation Appeals Board denied reconsideration.

But, even though the issue of “meeting of the minds” and language barriers was present in this case, the bigger deal was that the facts were all in favor of an employment relationship and only a signed contract was available to show an independent contractor arrangement instead.  Unfortunately, California does not allow employers and employees to contract out of workers’ compensation, so simply designating an employee as an independent contractor will not do.

And therein lies the dilemma for many employers – each would like to avoid the liability involved in having an employee, but is unwilling to give up the control that independent contractors cannot and will not offer.

Have a good weekend, folks!

So, dear readers, ready for another victory-lap case over the lien claimants?

Last week, we discussed the case of Soto v. Marathon Industries, Inc., in which the Workers’ Compensation Appeals Board found that a lien claimant’s failure to pay the lien filing fee required by Labor Code section 4903.06(a)(4) at the time of the hearing (including two hours after the hearing is scheduled to start), necessitates a dismissal of that lien with prejudice.

The Sharon Meyer v. Target Corporation case didn’t turn out all that different.  In that case, a lien claimant sought reconsideration of the dismissal of its lien after the lien conference had come and gone.  In this case, the lien claimant paid the lien filing fee a week later, but that didn’t seem to help.

This panel of commissioners again held that “under Labor Code section 4903.06, subdivision (a)(4), the WCJ was required to dismiss [the lien claimant’s] lien with prejudice.” (Emphasis belongs to your humble blogger, exclusively.)

In other words, Soto was not a fluke and we can expect spring cleaning of the liens in the workers’ compensation system.  The holding in this case and in Soto provides a pretty thick broom with which to do the job.

Once in a while, dear readers, your humble blogger peruses the QME Discipline List.  There we can see the applicant quack/hacks that are finally getting their come-up-ins and the reasonable, measured, defense-friendly (though totally unbiased) physicians that are being unjustly persecuted by the workers’ compensation system.

One case in particular caught this blogger’s eye – a certain physician from Santa Rosa has been suspended “until criminal case is resolved, pursuant to Penal Code section 23 and Labor Code section 139.2(m).”  It appears that Raymond Severt, M.D., met with Novato’s finest when “police … arrested … a man suspected of attempting to meet up with a 13-year-old girl for sex.”

The investigation is apparently continuing, but it doesn’t look good.

In any case, it’s always a good idea to glance at the QME discipline list once in a while, especially before picking who you’re going to kick off a panel.  If Dr. Severt is scheduled to evaluate the claimant in one of your cases, you may want to look into some alternative scheduling arrangements (ahem).

Believe it or not, there are still some old dinosaur cases roaming around that are using the pre-2005 dueling QME system.  Your humble blogger knows some attorneys that still long for the old days when QMEs were retained, armed to the teeth, and sent to battle to the death at the Board Thunderdome (two docs enter, one doc leaves!)

But now we live in more civilized times, where applicants still choose their own QME (in the form of a treating physician), and defendants much take their pick from the stacked deck of panel qualified medical evaluators.  Generally speaking, only Asbestos matters and pre-2005 cases allow each party to retain its own expert.  (Although your humble blogger has heard that some Judges used to allow parties to pick their own QMEs if the Medical Unit dragged big, Medical feet.)

Recently, your humble blogger, in his search for the latest and greatest case developments, stumbled across a rare gem going over the limits of the QME dance.  In particular, how much Earth is an applicant’s attorney allowed to scorch by finding new QMEs to run up defendant’s bill?  Can Goldilocks, Esq., send six bankers’ boxes of medical records to a new QME every two months until she finds one that is “just right?” (Or until the bills to the defense are “just right?”)

Not so much.  Applicant’s counsel went through three QMEs in the case of Larry Wiacek v. Fujitec America, and wasn’t too happy when the workers’ compensation Judge wouldn’t let him use the third’s report.  Relying on McDuffie v. L.A. County Metropolitan Transit Authority (2002, en banc), the WCJ held that applicant’s counsel could not simply bounce from QME to QME at the defendant’s expense, but had to follow a set procedure – which includes seeking supplemental reports, deposing the QME, and ultimately seeking Judicial assistance in finding a new medical examiner.

In the Wiacek case, however, applicant just picked a new QME and moved on, leaving a wake of unfinished reports and unjustified bills for the defendant to pick up.

The WCJ in this case allowed applicant to present the reports of the second QME because the first did not provide an AOE/COE determination, and then the case got weirder!  The second QME (and I remind you, dear reader, that naming names is disfavored in this little corner of the Internet), found exposure to coccidioidomycosis infection while driving between the Bay Area and Los Angeles during his weekends away from the job-site in L.A.  (This started out as an asbestos claim, but turned into a claim of “valley fever”)

The WCJ would not admit the reports of the third QME because applicant did not follow the McDuffie procedures before moving onto a third, and the second QME provided an AOE/COE determination.

The Workers’ Compensation Appeals Board denied applicant’s petition for reconsideration and incorporated the WCJ’s report.

Now mind you, dear readers, this case is important – there are applicant’s attorneys out there (and again, I won’t name names) who have a policy of costing defendants money: either through settlement or through litigation costs, those evil monsters who dare to employ someone in California are going to pay!  One way to do this is to drive up litigation costs: duplicative subpoenas, unnecessary document production to physicians and infinite supplemental report requests, and other tricks of a similar nature (no need to give people any ideas…)

It’s important to rein in such waste and the WCJ did a good job of it here.

As a side note, the WCJ also found that the injury fell under the scope of the going and coming rule, which is a pleasant result to see.

Once in a while your humble blogger speculates as to the thought process of lien claimants.  I imagine that at one point, the lot of them gathered together and agreed that the legislature did not intend to make lien filing fees mandatory, and the whole thing was a big misunderstanding.  After all, why would you require filing fees for the true intended beneficiaries of the workers’ compensation system… the lien claimants? (Welcome to the fantasy world of the lieners’ compensation system).

So, in case anyone thought the new rules regarding the filing of liens and paying fees were a joke, a gentle “gotchya!” from those humor-loving clowns in Sacramento… they’re not.  Labor Code section 4903.06(a)(4) requires all lien claimants to be paid up on their respective filing fees at the time of the lien conference.  More than that, the same section requires them to provide proof of such payment, or else they face dismissal with prejudice.

Some of the Southern California lien claimants didn’t get the memo (and by memo, your humble blogger means the flood of blog posts, articles, bulletins, conference topics, and every other imaginable source of news on the fact that lien claimants must pay filing fees or lose their ticket to the gravy train).  In the case of Jose Pedro Soto v. Marathon Industries, Inc., defendant filed a Declaration of Readiness to Proceed to a lien conference after the case-in-chief has resolved by compromise and release.

Well, the lien conference was scheduled for 8:30 a.m. on January 10, 2013.  The workers’ compensation Judge dismissed the lien claimants who failed to show proof of payment… until they scurried to their smart-phones and I-Pads and e-paid their filing fees (around 11:00 a.m.).

When the WCJ was presented with proof of this payment, the order was rescinded, so defendant filed for removal… and won.

The Workers’ Compensation Appeals Board issued a panel decision in which it ordered the dismissal, with prejudice, of those lien claimants that had failed to pay the lien filing fee by the time of the hearing.  Accordingly, subsequent payment of the fee does not cure the defect – lien claimants cannot avoid paying the filing fee to see if the defendant remembers to raise the issue, and then pay up later that day.  Even if the payment was only “subsequent” by less than three hours!

Now, this blog is not here to provide advice or guidance to lien claimants, so WCDefenseCA encourages them to re-affirm their commitment to having their liens dismissed – don’t file those fees, guys, you’re doing great!

But as for the defense community, you cannot pass up this opportunity to knock liens out of the park.  Your humble blogger is not prone to making threats, but if you do not raise this defense to every single lien at every single lien hearing or conference, I WILL HUNT YOU DOWN AND GIVE YOU THE FROWNING AND DISAPPROVING HEAD-SHAKING OF A LIFETIME.  SB-863 has given you an opened door, and if your defense doesn’t begin with an inquiry as to proper payment of filing fees, you’re trying to kick it down for no reason.

So, are you tired of wishing away the days on how workers’ comp should work?  Do you wish that someone other than your cat would listen to your suggestions?  Have you had enough of nailing grievances to the WCAB doors?

Well, it looks like the Commissioners have had enough of that too.  The WCAB is holding hearings at the San Francisco Board on April 16, 2013, to discuss proposed amendments to the Rules of Practice and Procedure.

In a delicate and diplomatic way, the WCAB has suggested that comments be submitted in written form, rather than delivered in person, and would prefer comments be submitted to WCABRules@dir.ca.gov.

There are countless people across California that are smiling to themselves right now, thinking “thanks to me, they prefer e-mailed comments now.”

Are you planning on attending?

Hello, dear readers! I hope you enjoyed your weekend. The sun was all smiles and the birds were singing without restraint, while under the streets of Sacramento, in the deepest sewers, the snakes were slithering their way towards SB-863’s crib, hoping to strangle it in its infancy. Is the new law to be a defenseless babe, or do we have a Heracles on our hands?

Senate Bill 626 seeks to undo some of the more interesting aspects of SB-863.  The bill, introduced by Jim Beall (D – Santa Clara County), would allow workers’ compensation Judges to overturn Independent Medical Review determinations (see Section 3), would allow chiropractors to remain the treating physicians for injured workers even after 24 visits (see Section 1), and allow for increases in impairment for psychiatric disorders (see Section 5).

Now, bear in mind, dear readers, that this bill was only introduced in late February, so it might be dead on the vine and more of a snowflake than an avalanche.  That being said, whatever our thoughts on how good of a reform SB-863 was, there are gains for employers found within, and we cannot cede territory captured at this point.

So here’s hoping SB-626 is more of a legislative pout than anything else.

WCDefenseCA does not, by any means, wish to imply that Senator Beall is a snake, or compare him to one – just using the Greek Mythology imagery to get the point across.