Happy Martin Luther King day, dear readers.  As your humble blogger celebrates by catching up on the pile-o-files screaming for his attention, he hopes that you have a wonderful day, and return tomorrow to this wonderful world of comp with a three-day weekend to look back on and only a four-day week to face.

Cheers!

Your humble blogger.

 “[T]he Appeals Board will decline to exercise jurisdiction over a claim of cumulative industrial injury when there is a reasonable mandatory forum selection clause in the employment contract specifying that claims for workers’ compensation shall be filed in a forum other than California, and there is limited connection to California with regard to the employment and the claimed cumulative trauma injury.  A party challenging the validity of a mandatory forum selection clause shall bear the burden of showing that the clause is unreasonable.”

The above language is lifted from the opinion in the case of Dennis McKinley v. Arizona Cardinals (En Banc, January 15, 2013).  My readers will recall that their humble blogger has touched, a time or two, upon the issue of those souls lucky enough to visit California and call it work, only to return and call it litigation.

Here’s the background: Dennis McKinley played for the Arizona Cardinals in the National Football League.  His contract of employment was signed in Arizona in 1999, and he played until 2003.  During that time, the Arizona Cardinals had 80 games, 40 of which were in Arizona and 33 in states that were NOT California.

Applicant’s legal theory was that his five days at a training camp in La Jolla, California, and the seven games played in this once-great state should allow him to shove the Cardinals down the meat-grinder that is California’s workers’ compensation system.

Previously, my dear readers may recall that we explored the defense included in Labor Code section 3600.5(b), which allows employers to avoid California jurisdiction in certain cases.  However, in the instant case, the WCAB rejected the argument that jurisdiction should not be exercised over this case because of section 3600.5(b).  Affirming the workers’ compensation Judge’s reasoning that “defendant did not offer any evidence on any of the conditions that would allow it to escape jurisdiction under [section] 3600.5(b)”, the Cardinals seemed trapped.

So what persuaded the WCAB to open the cage and set the Cardinals free?

McKinley’s employment contract included a “forum selection clause” which listed as a specific agreement that any workers’ compensation claims were to be brought in Arizona and not in any other state.

However, during McKinley’s career, he played in a total of 17 states (including California and Arizona).  So, by his theory, he would be able to bring his claim in any of those states.  California was nothing special – the contacts with this state were minimal and consisted of 7 games and 5 days at a training camp.

To quote the learned commissioners, “that limited connection is insufficient for the WCAB to exercise jurisdiction over [applicant’s] claim for workers’ compensation in derogation of the Arizona forum he and the Cardinals reasonably identified in their employment contracts as the place where any claim for workers’ compensation would be filed.”

So what made the forum selection clause enforceable?

First off, the WCAB noted that the contract was not signed in California, but in Arizona.  Second, the WCAB found that there was no fraud or overreaching in the signing of this contract.  Finally, the contract appeared reasonable – applicant spent most of his time in Arizona, so why not have the workers’ compensation claim adjudicated there?

Certainly, this case will see more appeals, but let’s look at the recent trend:

A U.S. District Court found that Atlanta Falcons players must bring their claims before the Georgia workers’ compensation system, and not in California, based on contracts signed by the players;

The 9th Circuit found that an applicant could not bring his claim for workers’ compensation benefits in California based on his claiming a cumulative trauma rather than a discrete injury;

A WCJ’s finding of jurisdiction was reversed to allow the Cleveland Browns to show that section 3600.5(b) should allow them to escape California jurisdiction.

Perhaps the courts are growing tired of professional athletes coming to California and dragging their reluctant employers with them.  Or perhaps there are enough cases burdening the California Comp system without us Californians looking for more trouble to pile onto our litigious plates.

When the river of appeals has dried up on this case and we have some settled law on this issue, the question will be how broadly the language of the law can be applied to protect traveling employees from California’s ruinous jurisdiction.

Dearest readers – check your pending liens.  Does the name American Sleep Medicine mean anything to you?  If it does, you may want to put that checkbook away for now.

The Department of Justice has announced the settlement of an overbilling investigation into American Sleep Medicine’s practices, resulting in a (promised) payment of $15.3 million for improperly billing Medicare (and other Federal Healthcare programs).  No sleep study will be necessary to document the sleep loss that American Sleep Medicine’s owners are probably experiencing.

My readers may recall a different instance of fraud, reported in years gone by.  The main thrust of this matter is that American Sleep Medicine billed for sleep studies, primarily polysomnograhpic diagnostic sleep testing, but without having the initial sleep study be conducted by technicians licensed or certified.

Your humble blogger looked into the matter from the California side.  A memo form the California Department of Public Health, dated October 18, 2010, points out that sleep study staff must be supervised by a registered nurse.  In fact, the memo states “[b]ased on the applicable statutory and regulatory requirements, certified polysomnographic technologists must be supervised by physicians; however, in a GACH [general acute care hospital] registered nurses must also be present to provide ongoing patient assessments.”

A lien search on the EAMS public search tool reflects several liens filed by American Sleep Medicine, typically in the amount of $2,600.

So, dear readers, any luck fighting off these liens?

A very special thanks to Greg Jones of WorkCompCentral for leading your humble blogger on to this story.

Back in the old days, when banks were robbed, horses stolen, or funny looks issued from suddenly scarce visitors, a posse would be formed and frontier justice would be dealt to the guilty (or unlucky) target of the people’s wrath.

Posses are great and have a solid place in California’s history.  The term originates from the Latin “posse comitatus,” which translates to the “force of the county” and allows law enforcement officers to conscript able-bodied citizens to assist them in keeping order or pursuing a fleeing criminal.  In California, the common-law posse comitatus is recognized by Labor Code section 3366, which extends workers’ compensation benefits to any non-employee and non-contractor assisting a law enforcement officer.

Hold on, dear reader, don’t unsubscribe just yet – this does relate to workers’ compensation!

Although your humble blogger does not typically like to report on unpublished cases, the matter of County of Riverside v. Workers’ Compensation Appeals Board (Taylor), is too fun to pass by.

In that case, applicant Sandie Taylor was a member of the Mounted Posse Program established by the Sheriff of Riverside County.  These brave volunteers underwent training, sometimes provided by the county and sometimes at their own expense, and rode their horses in recruitment events, ceremonies, and occasionally to assist in crime scene preservation or search missions.  Their role was primarily that of observation and reporting.

While training her horse to undergo simulated gunfire tests, Ms. Taylor was accidentally thrown from her mount and sustained injury (which EAMS lists as including her elbow, shoulder, and other body parts).

The Workers’ Compensation Judge found that she was not an employee of the County, but the Workers’ Compensation Appeals Board reversed, applying the aforementioned LC section 3366.  In response to defendant’s petition for a writ of review, the Court of Appeal issued an unpublished opinion, reversing the Court of Appeal, and finding that Ms. Taylor was not an employee of the County.

No good deed goes unpunished, Ms. Taylor, even volunteering to assist the County Sheriff.

The distinction was in the practical meaning of section 3366 – the fact that the Sheriff has established a largely ceremonial auxiliary group and dubbed it a “posse” does not mean that it is a posse comitatus as defined by Labor Code section 3366.  A posse comitatus is one that is meant to assist in the forceful apprehension of a criminal (as defined by the Court of Appeal: “[i]n that usage, of course, ‘posse,’ as in ‘round up the posse!’ is simply short for posse comitatus, as it typically reflects the sheriff or mashal’s call to local citizens to aid in the pursuit or capture of a bad guy.” See page 5, footnote 6).

Because, at the time of her injury, applicant was “training her horse to cope with stressful situations so that she might serve in the mounted posse in its various assignments”

The Court reasoned that applicant more closely resembled the type of person described in Labor Code section 3352(i), as a volunteer for a public agency.

WCDefenseCA wishes Ms. Taylor a speedy recovery, and hopes that this experience will not spoil her admirable inclinations towards public service.

Happy Friday, dear readers!  Are you looking forward to the weekend?  A certain (alleged) workers’ comp fraudster was too, last Friday, until the Tulare County District Attorney provided him with a set of matching bracelets to wear to his date at the County Sheriff’s jail in Porterville.

Your humble blogger, should he ever be arrested, would prefer to be arrested on Monday, and save the weekends for his non-incarceration time.  Just an FYI to all my D.A. friends reading this blog…

Michael D. Maloney, employed by the County of Tulare, Resource Management Agency, was arrested last Friday by investigators of the District Attorney’s office on suspicion of filing a fraudulent workers’ compensation claim.  To-date, the alleged loss is estimated to be in excess of $25,000.

As more details develop on this story, your humble blogger hopes to shed light on just how this fraud was detected, and what we can take away from this in the cases we handle to prevent private pockets from being picked (not just those of the County of Tulare).

Enjoy your weekend, dear readers.  Hopefully, yours will be better than that of Mr. Maloney.

What’s the point in having an Agreed Medical Evaluator?  Judicial economy is typically served when the parties agree on as much as possible in a given case, and the Board’s resources are reserved for actual disputes.  So when the parties use an AME, there are no hearing on panel specialty, timeliness of strikes, etc.

Also, there should be less trials over substantial evidence in medical reports and treating physician’s reports vs. AME reports… because we agreed, right?  For that reason, AMEs are compensated  more than QMEs, and the incentive is there for an evaluator to develop a reputation as competent, fair, and impartial.

But what happens when one party isn’t happy with the AME’s report?  Can it take its proverbial ball and go home?  That seems to be what happened in the case of Mary Lou Smith v. Sacramento County.  The County got the proverbial shaft at trial, on reconsideration, and the matter was denied review by the Court of Appeal.

Applicant claimed to have developed sinus symptoms because of mold in her work environment.  The treating physician found that the water damage in applicant’s office caused mold and this caused applicant’s injury.  Naturally, defendant disputed this finding and the parties retained an Agreed Medical Evaluator.

Did the parties go to Bozo the Clown?  Did they retain their favorite cartoon character to determine medical issues in this case?  Did they declare their shiniest quarter the AME and flip Dr. Quarter several times to answer all of their questions?  No.  They retained a physician with almost 40 years in practice, board certified in internal medicine and pulmonology, with a secondary practice area of Occupational Medicine.

Now, your humble blogger is not saying anything, one way or another, with respect to this AME’s qualifications.  Your humble blogger is humbly silent on that point.  The voices you hear shouting that this AME is a physician that should be deferred to on issues such as diagnosis and causation of injury are the parties themselves – by agreeing to retain this physician, both applicant and defendant screamed from the mountaintops “YES! YES! YES! WE WANT HIM!”

Well, that was until the reports came out, of course.

So, applicant took her ball and went home… to the Board where she argued that the treating physician’s report was the only substantial evidence on record.  The WCJ agreed – he found that the AME’s opinions are not substantial evidence because the results are illogical or unreasonable.  Instead, the WCJ relied on the opinions of the treating physician, which recognized that applicant’s mold exposure inside the work area was less than one-half the outdoor exposure levels, focused on the fact that there was a “higher than normal aspergillus exposure in the area around [applicant’s] workstation and [applicant] had aspergillus in her sinuses.”

So, the AME’s logic is that applicant spent 16/24 hours away from her work station, and those 16/24 hours had as much or higher mold concentration than her work station.  Also, he relied on an industrial hygienist report which found that there was not an extensive area of water damage outside of the break room, and the mold concentration in the building was “not an environment that realistically would produce a fungal sinusitis.”

Additionally, the AME reasoned that applicant had other reasons to develop fungal sinusitis, including a long history of asthma.

In denying defendant’s petition for reconsideration, the split panel majority reasoned that it “found [the treating physician’s] opinion more persuasive than [the AME’s] opinion.”  But that isn’t the standard, is it? The questions is whether the AME’s opinions are substantial evidence – and if they are, the AME’s opinions control even if the PTP’s opinions are persuasive or even more substantial evidence.

The dissenting opinion to the panel made this point very well – the AME had laid out his reasoning very clearly, in a neat and organized manner.  There had been no allegations that the facts the AME relied upon were incorrect, only that the result was unacceptable – how could an employee with fungal sinusitis not recover?

When the degree that AME opinions are afforded weight and authority depends on their results, what incentive is there to use an AME?

This is, by no means, a widespread issue – AMEs are usually afforded considerable weight, but if this is the start of a trend then your humble blogger is concerned about the possible incentives in disputing more issues instead of seeking agreement on as much as possible.

A wise man once said “stupid is as stupid does.”  But one person’s stupidity can reap endless benefits to another’s wisdom, and here’s how.

The story making the news on the interwebs is that of an Oregon teenager who posted a Facebook status of “drivin drunk… classic 😉 but to whoever’s vehicle I hit I am sorry. :P.” (Slurred and borderline illiterate mistakes in the original.)

Sure enough, Drunky-McDUI hit a car and ran away to drink another day, but was turned in by Facebook “friends” who saw the Facebook post and heard about his misadventures.

What does this have to do with California Workers’ Compensation?  Plenty!

As suggested by your humble blogger many times before, the fact that people do stupid things and brag about them on Facebook, Twitter, LinkedIn or any other social media the kids are playing with today does not mean that those things are not fair game for the defense-side of this industry.

Your applicant will cry and moan about her depression at the deposition.  He will testify endlessly about how he can barely get out of bed because of every single body part hurting so much after his industrial injury.  You will hear claims of every kind imaginable up to the point of an award… but you know they aren’t true.

You also will hear whispers from co-workers of an injury being faked, of Ms. Applicant attending parties and dating or Mr. Applicant going skiing and working on digging a trench at his ranch (isn’t it great to get all those things done now that you don’t have to waste time at work?)

More and more of the world’s applicants are finding themselves on social media, and some can’t help but live their lives on the public stage, from reporting the fact that they are eating a sandwich to uploading video of how great they are on jet-skis.

So, what can you do right now to take advantage of such a weak degree of discretion?  Well, for starters, go to facebook and create a profile.  You don’t need to put in any information you don’t want to share with anyone – don’t upload a picture, or upload a picture of something random like a pencil or a puppy.  Look up your applicant by name and see what network he or she is on (usually, networks are organized by school, city, or employment).  And then just see what’s available to the public – is there any activity on there that is inconsistent with the applicant’s claims?

Odds are that one of the co-workers that is a Facebook friend but a real-life enemy might even report these activities to the employer if asked.  After all, that’s how Captain Genius got caught in the story above.

In a recent case, the Court of Appeal denied applicant’s petition for a writ of review following the Workers’ Compensation Appeals’ Board’s denial of her petition for Removal from the workers’ compensation Judge’s order taking a case off calendar after a Mandatory Settlement Conference (say that sentence ten times fast!)

Here’s the skinny – applicant filed a Declaration of Readiness to Proceed, content with the available medical reports and ready to take the matter to trial.  Additionally, the defense had failed to issue a denial within 90 days of knowledge of the claim, so the injury was presumed compensable.  The defense did not object to the DOR, but did send an offer to use Agreed Medical Evaluators in this case to a random applicant’s firm (not the one representing the injured worker).  When no response came from the applicant’s firm that had nothing to do with the case, the defense requested a panel.

By the time the matter arrived before a Judge, applicant was ready to go.  Bring on the trial – this will be a slam dunk!  But defendant answered that it had requested a panel and was trying so gosh-darn hard to develop the record, couldn’t the matter go off calendar until a QME had a chance to look this case over?

Applicant was not pleased… she immediately argued California Code of Regulations section 10251(d) specifically states that the failure to object to a DOR is a waiver of objection to the DOR, and the matter should stay on the calendar.  At the very least, the matter should go to trial on the issue of presumed compensability…

The WCJ didn’t agree.  He found that the defense had acted with due diligence in procuring an additional evaluation (through the PQME process) and because judicial economy outweighs trying threshold legal issues before others, the matter was taken off calendar, and defendant got to triumphantly drag applicant to a QME evaluation.  And they all lived happily ever after…

Having trouble believing it?  Then I guess you’re not interested in the bridge I have for sale.

The real case happened in a similar fashion… just the roles were switched.  The parties made it to MSC without an objection to defendant’s DOR ever having been made by applicant.  The defendant even had what seemed like a solid Statute of Limitations defense.  But the WCJ ordered the matter off calendar and allowed applicant to proceed to a QME evaluation based on the due diligence of applicant’s AME proposals sent to a defense firm unrelated to the case.

The WCJ, in his Report and Recommendation, reasons that by denying defendant the right to take to trial the issue of the statute of limitations defense, the defendant is not exposed to undue prejudice or irreparable harm.  But this isn’t the case – even though the defendant is likely entitled to a total defense based on the statute of limitations, the defendant is instead going to have to shell out cash for medical-legal costs, deposition costs, and, (dare I point this out?) a bigger defense attorney bill (zealous and competent advocacy does not come free, after all…).

Your humble blogger has had cases referred a few days before the MSC, with no opportunity to depose the QME (or in some cases go to a QME) and the time having passed for an objection to applicant’s DOR.  Needless to say, your humble blogger found the Board less receptive to his due diligence in what little time was available.  But, then again, your humble blogger zealously represents workers’ compensation defendants.

Welcome back from the Holidays, dear readers!  The kids are still home from school, the tree is still in your living room (and will remain there for the next month), and your humble blogger has vexatious litigants on his mind.

When vexatious litigants appeal, they don’t pull any punches.  My diligent readers may recall an earlier post on a certain vexatious litigant, and now your humble blogger brings you the story of yet another one.  A Mr. Hamid Khazaeli, a sales representative employed by Symaster Corporation, has conducted a merciless war on time and paper with his multiple filings in the workers’ compensation system.

An in pro per applicant, his actions resulted in a “vexatious litigant” finding, resulting in all filings having to be approved by the presiding judge in Oakland.

In retaliation, Mr. Khazaeli filed “Petitions for Reconsideration, Removal, Disqualification And To Compel Testimony of Judicial Or Quasi-Judicial Officers”, only to be followed by another petition, just three weeks later: “Petitions for Removal, Disqualification And To Compel Testimony Of Judicial Or Quasi-Judicial Officers.”

Applicant alleged that the dismissal of his applications was based on bias, fraud, ex parte communications on the parts of several WCJs, Commissioners, and Department of Industrial Relations employees.  He demanded that they be disqualified and submit themselves to deposition.  (He also demanded to know who the second shooter was in the Kennedy assassination, the location of Jimmy Hoffa’s final resting place, and why kids love Cinnamon Toast Crunch).

Anywho, this case wasn’t much for substantive law, but it did provide an opportunity for the WCAB to lay out some of the rules for disqualifying workers’ compensation Judges, which applicant did not appear to observe.  In its wisdom, the legislature set out higher standards than “[b]are allegations of bias and prejudice,” but instead require an affidavit which includes specific facts which lay out the cause for disqualification.  (See Labor Code section 5311; Code of Regulations section 10452.)

For example, if your humble blogger were to appear before a WCJ in his finest bow tie, and the WCJ were to glare at it with obvious envy, unconsciously tugging at his bolo tie as he said “no bow ties in my court!” there may just be grounds for disqualification.  (General Practice Tip: The California Supreme Court has ruled that there is an un-rebuttable presumption that bow ties are superior to bolo ties in all respects.)

The WCAB noted that applicant also failed to request automatic reassignment of the WCJ, nor did he provide any reasonable excuse for his failure to appear at two hearings scheduled to address his claims.

So, the WCAB ordered that the doors be closed in applicant’s face… but not until he had paid sanctions for his failures to appear.

Now, my readers of the softer heart might say: but he’s not an attorney, he doesn’t know the rules.  For that reason, your humble blogger does not perform his own dentistry work, nor does he neglect to retain the services of an auto-mechanic.   If he were to undertake an important operation in either field, he would suffer disastrous consequences – as applicant did in this case.

My readers of the still softer heart might say: but what if he couldn’t find an attorney?  Applicants’ attorneys do not take retainers, they don’t charge by the hour, and they don’t get an interest in applicant’s future earnings of naming rights to their yet-to-be-born children.  Applicants’ attorneys were for a percentage of the cut.  Upon retaining an attorney, the applicant and attorney are bound by sacred oaths of fiduciary duty and ethical conduct, and their fates are intertwined – when applicant wins, the attorney wins (and, sometimes, the applicant’s attorney wins even when the applicant loses).

So, if Mr. Khazaeli did not retain an attorney, it is either because he thought he was very smart and didn’t want to share his potential recovery, or no attorney saw any likelihood in his case prevailing and did not want to invest the time.

Several hundred hours later, having burdened the workers’ compensation system and the litigation budget of the defense, Mr. Khazaeli faces yet another defeat.  On the bright side, before too long, the type of person to be declared a vexatious litigant will show his true colors and incur the justified attention of the WCJs — so keep a good log of those hours wasted responding to frivolous papers!

Tonight, as the clock strikes midnight, we will all find ourselves in 2013 – good luck to us all!

WCDefenseCA wishes all its readers good fortune in the coming year.  Maybe it’s the full tank of gas after visiting a gas station, maybe it’s the fact that all pennies found in the last two weeks have been heads up, or maybe it’s winter spirit… for whatever reason, your humble blogger feels that good things are coming in the 365 days ahead.

So, dear readers, let the defense community interlock its shields, tighten its belts, and meet the dangers looming the road before us head on.  And when the night seems dark, when the troubles seem overwhelming, when the lien claimants swarm and block out the sun, your humble blogger will be here by your side to see every last benefit denied and every last experience modification reduced. (At least that’s my new year’s resolution — what’s yours?)

So long, 2012 – hello 2013!