The Workers’ Comp thunderstorm in pro-sports paradise continues, as players and teams struggle over whether players can collect workers’ compensation benefits in California after playing one game or attending a training session here.

It looks like the Los Angeles Times has decided to focus its wrath and anger on Assembly Member Henry T. Perea (D – Fresno), for introducing Assembly Bill 1309 which would exempt professional athletes in the fields of baseball, basketball, football, hockey, or soccer if the employee is temporarily in the state if he or she spends less than 90 days in California in the year prior to the date of injury (whether specific or cumulative).

Far be it from your humble blogger to question the wise sages of Sacramento.  After all, he is but the humblest of the humble, both with respects to his blogging and his citizenship.  But, unlike the LA Times, this bill does not go far enough.

I might alter a child’s world by explaining to him that I’m not actually taking his nose, but I think my beloved readers have a firm grasp on the concept that California is not particularly business friendly.

I would submit to you, my readers, that this bill does not go far enough.  Instead of limiting itself to some sports, the bill should be expanded to include all visiting employees, whether here for a 10-day project or a 1-day conference.  Programmers and hospitality service specialists don’t make the headlines the way quarterbacks and goalies do, but how would you like to hire someone in North Dakota and have them attend a 3-day training seminar in California, only to claim a cumulative trauma immediately prior to retirement twenty years later?  And mind you, my dear North Dakota-an (esteemed gentleman or lady from North Dakota), you’ll be paying California dollars on the workers’ comp, not North Dakota dollars.

Right now, the professional sports teams are trying to get this thing passed in Sacramento, and they may or may not succeed.  Imagine if they can’t – imagine if the sports teams are stuck paying out the big bucks for each player looking for a retirement bonus.  At a certain point, wouldn’t it be cheaper to just boycott California games?

As grand as California is, every state is a good state for a training camp, and every state is a good state for a game.  The 49ers will just have to build a new stadium on the other side of the Arizona border, and the Raiders will have to host games on a floating stadium 10 miles out to sea.

Instead of sending our fearless governor to other states to make this state more attractive, perhaps we could start with baby steps – don’t punish non-California employers for visiting California (let alone moving here!)

Hello, dear readers!  Your humble blogger brings you news of the DWC conference held in Oakland on Monday and Tuesday.  As a side note, if you haven’t attended this conference, you really should – next year will probably have a few more answers than this year, and it is worth every dollar and every minute you put into it.

There were several interesting speakers, but no reception, so your humble blogger was even more humble as he tried to post on the goings on.

In any case, the following are some highlights from the lectures and speakers.  I’ve avoided naming names because some speakers asked that they not be quoted.

1. Something horrible is coming, but we don’t know what…

The general consensus of the speakers was that they had no idea how SB-863 would play out, and the law leaves countless questions unanswered… which will be answered at trial and on appeal.  In any case, be ready to litigate just about everything!

1. No more PDAs?

Adjusters should be aware that there will be no more PD advances if an offer of regular, modified, or alternative work has been made until there is an award.  So the worker should go from getting TTD to a paycheck, rather than TTD to a paycheck and PD.   (See Labor Code section 4650(b)(2).)  It remains to be seen if merely making an offer is enough.  For example, if the applicant has been terminated for cause, but the employer could accommodate him or her, must advances still be made if an offer has been communicated?

1. “I love new forms!” said no one ever

There is a new form available to request medical treatment.  So adjustors should keep an eye out for incomplete forms, because the incomplete form does NOT trigger the Utilization Review timeline.  However, the claims adjustor or examiner will be require to document his or her attempts to obtain the missing information.  So send an e-mail or fax returning the form marked “incomplete” and ask for the missing info, and then you can take your finger off the UR button.

1. The cat-like MPN now has nine lives

California Labor Code section 4616.3(b) states that an MPN is not made invalid solely by an employer’s failure to post proper notices.  Realistically, even if proper notices were posted, the difficulty and expense in litigating and proving that the notices were posted makes them effectively not posted.  One speaker recommended having employees sign a document acknowledging receipt of notice of the MPN.

1. Never mind about that Valdez thing

Several speakers made the point that the issue before the California Supreme Court in the Valdez matter is now moot – Labor Code section 4605, as amended, allows non-MPN treating physicians to treat injured workers at the workers’ expense.  Furthermore, the report can be used, but cannot be the sole basis for an award.

There’s too much good stuff to go into everything, which is why you should attend next year!  But here’s the biggest thing to take away from the conference – all of the authorities, from attorneys to judges and everyone in between, kept chanting the mantra “I don’t know.”  No one knows how everything is going to work out, and your panel of attorneys is going to find out for you through litigation.

Don’t be scared by this, get excited – this is yet another opportunity to invest some time and effort and aggressively shape the landscape of workers’ comp until the next reform.

Hello dear readers!

Your humble blogger is happily attending the DWC conference in Oakland today.  If you’re a twitter follower, please keep an eye out as I’ll try to tweet highlights here and there.

If you’re a fan of the blog and not intent on doing me bodily harm, please introduce yourself and say hello – I’d be very happy to meet you!

If you’re not a fan and/or intend to do me bodily harm, I’m not really attending the conference, and there are lots of people who look like me, so there…

If you’re wondering how to spot me, I will be surrounded by an aura of professionalism and legal competence.  I will also be the most humble of bloggers there.  Additionally, you can check the name tag.

See you there!

Greg

Imagine the following scenario: your fearless and zealous attorney appears at the deposition of an Agreed Medical Evaluator only to be handed a document by opposing counsel.  Assuming this is a signed stipulation to 0% impairment with no need for future medical, adorned with a hand-written apology and a check for all defense costs today (just work with me here), your attorney smiles and prepares to shake hands with the applicant’s… until he sees that it’s just a vocational evaluation report, and a new one at that.

The applicant’s attorney mutters something about service before turning to the AME and offering a copy of (presumably) the same report.

While your attorney is flipping through the pages trying to get a grip on the report, the AME has already glanced at the conclusions on the last page and started testifying to his opinions on the matter…

What just happened?

Well, if you asked the Workers’ Compensation Appeals Board, applicant’s counsel just engaged in ex parte communication in violation of Labor Code section 4062.3, so out goes the AME’s deposition transcript, the post-deposition reports, and the AME’s “AME” designation.

In the recent case of Martin Trapero v. North American Pneumatics, the applicant’s attorney did just that, and so the defense counsel objected to the report and the manner of communication.  The defense also sought to have the AME’s report and deposition transcript stricken, along with the report.

The workers’ compensation Judge, however found that the communication was perfectly kosher, seeing as it was a subsequent communication, permitted by section 4062.3(e) (“[a]ny subsequent communication with the medical evaluator shall be in writing and shall be served on the opposing party when sent to the medical evaluator.”  Handing it to the opposing party and then handing it (30-60 minutes later) to the AME fits in the “subsequent” rule.

In reversing the WCJ, the WCAB found that “in springing the vocational report on defense counsel when the AME was about to be deposed, applicant’s attorney denied defense counsel the opportunity to determine if this new ‘information’ was something that he would agree to provide to the AME.”  The WCAB also noted that this was not a subsequent “communication” as contemplated by section 4062.3(e), but rather “information”, as contemplated by 4062.3(c) (“the parties shall agree on what information is to be provided to the Agreed Medical Evaluator.”

The WCAB also ordered that the defense costs associated with the deposition be paid by applicant’s counsel.

Now, in this case, this is a win for the defense in particular, but generally speaking, this is a cautionary tale for all of us playing the game – it is better to postpone a deposition rather than throw a monkey wrench in the entire case and kick the ball back to square one of medical-legal evaluations.

By the by, the Court of Appeal denied applicant’s petition for a writ of review.

California Code of Regulations section 9767.5 lays out the “access standards” for a Medical Provider Network.  Among those standards is the distance or travel time requirement of a treating physician – “A[n] MPN must have a primary treating physician and a hospital for emergency health care services, or if separate from such hospital, a provider of all emergency health care services, within 30 minutes or 15 miles of each covered employee’s residence or workplace.”

So, what do you think, dear readers, does the “or” mean “or” or does the “or” mean “and”?  Now, I know that some of the applicants’ attorneys that end up here by accident are screaming at their computers right now: “It means AND! Just asking the question entitles my client to 132a damages! Medical Provider Networks are a violation of human rights!  I AM ABOVE THE LAW!!!”

As for the rest of us, I would venture to guess that the word “or” typically means the word “or” and not “and” or “ponies” or another other word.

This issue became the subject of some judicial review in the case of Miguel Robles v. Evolution Fresh Inc., which was recently denied review by the Court of Appeal.

Mr. Robles enjoyed the benefit of 3 spinal orthopedic primary treating physicians located a stone’s throw from his place of work, but only 1 from his place of residence.  His reading of section 9767.5 lead him to the conclusion that defendant’s MPN was defective.  Defendant, naturally, did not agree with Mr. Robles’ (or his attorney’s) interpretation of the law.

The matter was presented to the workers’ compensation Judge with a request for judicial guidance, and the WCJ found that the defendant was correct – “[t] the use of the conjunction ‘or’ is indicative of the use of an option for purposes of meeting the conditions of the regulation.”

The WCAB concurred and the Court of Appeal denied review.

Now, this case took place in the Los Angeles area… so the fact that the employee lived fifty miles away from his place of employ was not that unusual.  But, as an employer, can you imagine trying to have an MPN which has at least three of every type of physician within 15 miles or 30 minutes of each of your employees?  That would be unreasonable, if not impossible.

The WCAB made another point upon which all of us on the defense side should keep our sharp, hawk-like eyes – there is a conflict between section 9767.5(b) and Labor Code section 4616(a)(1).  While the former allows a choice for the employer/insurer – 3 physicians of each type 15 miles from home or residence (and conceivable, one from one point, and two from another), section 4616(a)(1) requires the provider network to “include an adequate number and type of physicians … to treat common injuries experienced by injured employees based on the type of occupation or industry in which the employee is engaged, and the geographic area where the employees are employed.”  (Emphasis belongs exclusively to your humble blogger).

The panel held that “to the extent [section 9767.5(b)] exceeds the scope of the statute, section 4616(a)(1) controls.”

This reasoning says that the legislature did not intend to give the employer/insurer the option of providing physicians at applicants’ residence, but only at his place of employ, and the regulation is therefore invalid as to allowing employers to provide physicians near the employee’s home instead of his job.

So, if an applicant wants out of an MPN, he need only check if there is a physician around his job site… even if every single orthopedist licensed to practice medicine sets up shop across the street from his house, if he lives more than 15 miles from where he works, the MPN is invalid… or so says the non-binding panel opinion.

There may be more developments on this theory later, but employers should beware of this argument, especially when setting up an MPN.

Isn’t it odd that employers are cautioned not to terminate an employee’s employment just because there is a workers’ compensation case hanging in the air?  After all, Labor Code section 132a prohibits discrimination because of a workers’ compensation claim… but what if the workers’ compensation claim is just a coincidence and not a cause?

In Department of Rehabilitation v. Workers’ Compensation Appeals Board, the Supreme Court told us that an employer need only avoid “treating injured employees differently, making them suffer disadvantages not visited on other employees because the employee was injured or had made a claim.”

The following case is an example of why employers are forced to walk on eggshells around workers who allegedly sustained work-related injuries.

In the case of Angela Moreno v. City of Glendale, Ms. Moreno claimed that the termination of her employment was an illegal and discriminatory act, as she had claimed a work-related injury.  The record included a long list of reprimands and unsatisfactory and below average performance reviews.  Some of Ms. Moreno’s less-than-admirable qualities?  “inefficiency, incompetency, neglect of duty, failure to perform assigned duties, and failure to meet job performance standards.”

So this is a slam-dunk, right?  We’ve got a worker who has been cruising for a career bruising; aching for a tenure breaking; and shooting for a job booting (not to mention aiming for an employment shaming).  What’s wrong with finally letting her go and become a blessing to some other employer?

Workers’ compensation is the problem.  Because of her comp claim, the entire human resources process smacks of discrimination, as the distinction between causation and correlation is discarded in light of a possible pay-day.

And this makes sense, because, as my readers may recall in the case of Lucas Marinics v. Gilmore Heating & Air Conditioning, the dissenting commissioner noted that the only reason not to tolerate Mr. Marinics further was the workers’ compensation claim.  And in this case, we have poor performance reviews going back to 1998… why wait this long to cut the cord? (The splendor of government employment…)

The WCJ found that applicant’s claim of 132a discrimination was defeated because she “did not present any witnesses or documentary evidence of any type showing that she was treated differently from nonindustrially injured employees.”  The WCAB concurred.  But, in a way, she had won – she had forced her employer to waste a bunch of time and money defending the baseless claim of an employee who was a documented poster child for at-will employment.

So your humble blogger’s advice?  Instead of sinking money into a lawyer to defend a baseless claim and sending your employees to testify instead of doing their actual jobs, just get rid of crappy employees when you realize that they’re crappy, and don’t wait for a workers’ compensation claim to be the last straw.

My beloved readers may recall that Oklahoma mounted an unsuccessful attempt to introduce an “opt-out” provision to its currently compulsory workers’ compensation program.

Well, folks in Oklahoma are not to be discouraged by an unsuccessful attempt!

It looks like Oklahomans… Oklhamonites… Oklahomanians… the fine people of Oklahoma are going to try again, this time including an option to opt out as part of a larger workers’ compensation reform bill.

Oklahoma Senate Bill 1062 will seek to let employers opt out of the workers’ compensation system (see sections 120 et. seq.

Now, my dear readers, before you start glaring at your monitor, cursing your humble blogger or his humble blog, and demanding to know why California readers should waste their time learning about the crazy doings of Okla… Okla… well the people of Oklahoma, I submit to you the following:

As Texas is currently the only opt-out state in the Union, so if Oklahoma gets this done, we might be looking at somewhat of a trend… and a trend is your friend!

Opting out means that employers can set up a benefit plan of their own, although how it will all play out is not certain yet – after all, the bill could meet defeat once again, and anyone who stands to lose money from an efficient workers’ compensation system is not going to go along quietly.

But, California can take a lesson or two from our good friends over in Texas and Oklahoma – perhaps some friendly competition in the form of an opt-out provision can help force workers’ comp costs down.

WCDefenseCA, from its post of influence in California, wishes Oklahoma luck in passing its reform, and hopes that the wise elected leaders of the Sooner State “O.K.” the opt-out clause.  (Get it? OK?).

Welcome back from the three-day weekend, dear readers.  Many of us spent the days between Friday and Tuesday enjoying the sun, the family, the friends, the life beyond the life of Claims.  Others, like your humble blogger, looked out the window of his office at people walking the street with smiles on their faces, maliciously grumbling before turning back to the latest frivolous 132a claim.

But your humble blogger didn’t have a “bad” weekend compared to some – Keri Atwood* of Santa Paula, Ventura County, go to see the other side of her employer when she was arrested for workers’ compensation fraud.

A civilian employee of the Ventura County Sherriff’s Office, she made a claim for workers’ compensation benefits after she sustained an imaginary crippling injury to her left ankle.  However, her treatment visits proved so effective, that she was seen using crutches or a wheel chair to get to her medical appointments, and then would miraculously walk as if cured afterward.  One just has to wonder if her doctor has to purchase wine or just makes it from water.

During her temporary disability period, she was paid over $29,000 in temporary disability benefits.  (That’s tax-free, by the way).

Interestingly enough, her husband was arrested as well, on the theory that he drove her to her doctor visits and failed to disclose her true physical condition.  (The family that crimes together, does time together?)

In any case, this humble blogger’s hat is off to the Ventura County D.A.’s office for its fine work – please keep the fraud arrests coming.

*My beloved readers know that I’m not one to name names, especially when the Board is cruel in its chastisement of an attorney making a slip-up.  But when it comes to fraudsters and alleged fraudsters, there is no harm in a little shame.

Happy Presidents’ Day to all my beloved readers, and even some of my not-so-beloved readers.  Your humble blogger wishes you a restful and profitable 3-day weekend.  If you happen to be in the office glaring menacingly out your window, much like your humble blogger in between denials of claims, please drop me a line to say hello!

So, last time we had discussed that maybe, just maybe, Sasha could argue that she had enough of a defense to avoid Serious and Willful (S&W) liability for the injuries sustained by her window-cleaner employees after they fell from San Francisco sky-scrapers with no safety-equipment except her garage-sale acquired trampolines several floors below.

Then Sasha brought up Cal/OSHA.

California’s Division of Occupational Safety and Health provides various safety regulations for work sites and seeks to have them enforced.  Violating Cal/OSHA regulations, with or without resulting injuries, can lead to fines, stop-work orders, and a whole host of other problems for employers.  This includes possible jail time.

Additionally, Labor Code section 4553.1 provides an alternative method of proving S&W misconduct.   By showing that an employer violated a specific Cal/OSHA safety order which resulted in the injury of the employee, and the employer either knew (or it was obvious that) the conditions at the work site made the order applicable, and that the employer’s failure to correct the condition constituted a reckless disregard for the probable consequences, the employee might prevail on a S&W claim.

But don’t be fooled – this can be harder for an employee to do than it might seem.

Cal/OSHA has tons of rules and it’s hard to follow them all.  Some rules are administrative in nature and relate to record keeping – an employer can easily violate this rule but it’s hard to prove that the failure to keep records of past citations proximately caused an employee’s injury.  In negotiating with Cal/OSHA, an employer might agree to offer no contest to safety order violations that wouldn’t prove up the injury in exchange for a dismissal on safety order violations that might.

In Ford Construction Company v. WCAB (2010, unpublished), an employee sustained injury (and death) when a ripper shank weighing more than 2000 pounds fell from a suspension cable.  Even though the employer had violated various Safety Orders, the Court of Appeal had found that those violations did not justify a finding of S&W misconduct on the part of the employer because it was not the violation of the relevant safety orders that caused the workers’ injury.

However, simply complying with the relevant Safety Orders is not a defense either.  For example, in the case of C.C. Meyers v. WCAB (2012, unpublished), the Court of Appeal concurred with the defendant that it had followed the relevant safety orders with respect to providing back-up sirens on an excavator.  However, even though there was no relevant Cal/OSHA safety order violation, the Court still found S&W misconduct on the part of the employer for failure to provide a spotter in a loud and tight work environment where a back-up siren might not be heard.

For example, Safety Order 1670 requires a personal fall arrest system for workers operating more than 7.5 feet from the ground.   So an employee might show that (1) Sasha violated the order by not providing harnesses; and (2) the failure to provide a harness proximately caused the injury (because of the fall).  However, if Sasha didn’t know about the safety order, the theory might fail under section 4553.1.

What do you think, dear readers?  Did poor Sasha commit serious and willful misconduct by replacing safety harnesses with trampolines and sending her brave and blindly loyal employees to clean the sky-scrapers of San Francisco?

WCDefenseCA URGES its readers and friends to not do what Sasha did – use all possible safety equipment to protect your workers; obey Cal/OSHA Safety Orders; and don’t rely on trampolines to save workers falling from skyscrapers.