Are you ready for another boring post about how to properly perform an internal calibration of your task assignment system in workers’ compensation?  It’s very important for all adjusters to take notes on this post because it can get pretty complicated and math-heavy…

Now that all the applicants’ attorneys and applicants have stopped reading… on to the real post!

The other night, your humble blogger sat at a kitchen table with his elder cousin Jeffrey.  Through a mixture of adoptions, arranged marriages, one duel with pistols at dawn, and some babies switched at birth, Jeffrey became your humble blogger’s oldest cousin, and at sixty-five years young, remained eternally optimistic about all things.

Cousin Jeffrey related to me the news that had him extra-optimistic: he had finally decided to ask out the love of his life.  He had known her in highschool and had even asked for her phone number, but had been biding his time for the perfect moment to call her.  Now, after almost five decades, the time was ripe and he was going to make his move.

Your humble blogger has this advice to you, my readers:  in matters of the heart, do what feels right; in matters of workers’ compensation, do not hesitate and make your move early!

Such advice would have been of some use to the applicant in the matter of Elsa Serrano v. ITT Cannon Electrics.  Therein, the defendant had successfully sought dismissal of two cases, and a notice of intent to dismiss was served by the Board and the defendant in January of 2010.  The order was signed in June of 2010, and this time the defendant alone served the applicant and her attorney with the order.

Applicant attempted to file a new application in 2011 for the same injury, but was barred by the statute of limitations.  So, applicant attempted to contest the dismissal of her previous applications (some fourteen months after service of the Notice of Intention to Dismiss).  Applicant testified to never having been informed of the dismissal by her attorney until recently, and that the Proof of Service for the Order had an incorrect zip code (off by one digit).

Based on this, the workers’ compensation Judge ruled that the Order was not final (due to defective service) and allowed applicant to contest the dismissal.  When the defendant sought reconsideration, the WCJ cited California Code of Regulations section 10500(b), noting that all final orders must be served by the Board and not be designated to other parties for service.

The Workers’ Compensation Appeals Board, on the other hand, was not of the WCJ’s mind.  In granting defendant’s petition for reconsideration, the WCAB reasoned that a harmless error, such as an incorrect zip code, is not good cause to rule a previous order of dismissal as anything other than a final order.  The applicant did not even testify to not having received the order, but rather that she couldn’t remember if she had.

According to the United States Postal Service, an incorrect zip code will result in a delivery delay.

So, dear readers, while it is never too late for love, and never too late to try new things, workers’ compensation is a place where the early bird gets the worm, and for the defense, the waiting is the hardest part…

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Ever wonder why the law enforcement seems more inclined to go after workers’ compensation fraudsters on the employer side rather than the employee side?  Ever wonder why bears don’t look for honey in wasps nests?  Be like the bear – follow the honey!

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A recent story stumbled upon by your humble blogger tells the tale of John and Camille Applegate, owners of Hallmark Roofing, have reportedly sold their home to pay $200,000 to law enforcement officials as part of their restitution for several years of operating without workers’ compensation insurance and cheating their way out of paying taxes.  This allowed them to underbid several of their competitors for various contracts.

When gubmn’t finds out that an employer illegally operates without insuring against its employees’ injuries, law enforcement officials are swift to act in investigating and prosecuting offenders.  Must swifter, typically, than when an employee is defrauding the employer or the employer’s insurer.  Fraud divisions of various law enforcement organizations actively go out seeking contractors offering to do jobs and then checking them for insurance.  The efforts are considerably less energetic when it comes to catching employees engaged in fraud.

In fact, most insurers and self-insured employers have discovered that, unless the case is presented to the district attorney with a slam-dunk basket of evidence including surveillance, documentation, medical reports, and a tidy cover-letter drafted by a former investigator or deputy district attorney, making the case for the D.A.’s office, not much will get done.

The above-referenced story is why – once an employee cheats an employer out of compensation, that money is spent and gone.  You can’t get back the damaged personal property or funds spent on personal services.  You also can’t hope to recoup your cost of investigation.  The D.A.s’ offices, well aware of the economics of the situation while busy tightening their belts against dwindling budgets, follow the honey and avoid the wasp stings – the employers have something to take.

So, the next time you are competing against a rival for a bid or a contract, bear in mind that their price might not account for (1) insurance premiums; or (2) investigation of insurance fraud.  Yours does.

Everybody loves a good movie.  Well, almost everybody.

Recently, the Workers’ Compensation Appeals Board granted defendant’s petition for reconsideration in the matter of Clemi Boubli v. Cast & Crew Payroll Services, Inc.  One of the interesting aspects of the petition for reconsideration was that the workers’ compensation Judge had refused to accept into evidence subrosa video tapes of applicant engaged in various activities.

Applicant sustained an injury to the head, brain, psyche, back/cervical spine, and bilateral shoulders while employed as a stage technician on March 22, 1997.  The parties brought their disputes to an Agreed Medical Evaluator, who found applicant was totally permanently disabled and needed a whole host of in-home care and various services.

Defendant subsequently ordered over 160 hours of surveillance which yielded roughly seven hours of videotape, which it promptly sent to the AME (with a crate of microwaveable popcorn).  The AME, upon seeing applicant’s various activities in the video tapes, immediately changed his opinion and drastically reduced applicant’s impairment rating and need for in-home services in a supplemental report.  Rumor has it that the seven hours of surveillance ruined the AME’s plans to watch the hit film, Marley and Me, allowing a co-worker to blurt out how the movie had ended and thereby ruining the experience for the AME.

When the matter proceeded before the WCJ, she ordered the report stricken and the tapes deemed inadmissible.  In her report and recommendation, the WCJ reasoned that the tapes should be excluded because (1) defendants only turned over 9 of the 10-24 video tape cassettes; (2) the subrosa film consists of a very small percentage of applicant’s activities on the days of surveillance; (3) the videotapes depict applicant with her caregivers doing activities which are recommended by her doctors; (4) the video tapes are not substantial evidence, even if admissible, and should be given no weight.

The WCAB, however, rejected the WCJ’s analysis and ruled the tapes are admissible, and that “no good reason has been shown to exclude them from the record.”  Although the applicant retains her ability to challenge the tapes if they do not actually depict her, or to depose the AME to explore his opinions as to the weight of the tapes, the tapes should not be excluded for the reasons stated by the WCJ.

Here’s one thought from your blogger – if the parties elect to bring their disputes to an Agreed Medical Evaluator, it is usually because they trust this AME for his medical competence and unbiased disposition.  On what grounds is the WCJ to substitute her own evaluation of the tapes for a medical professional’s?  After all, the AME reviewed the tapes and, in a supplemental report, wrote that applicant “has the capacity to perform at a much higher level than what she indicated to her examiner … I can no longer recommend services which are given in my previous report based on the current information…”

Some members of the defense community hesitate to use surveillance as a means of influencing an evaluating physician.  Your humble blogger is not among them.  Surveillance should be taken often enough, the only trick is to keep a clear record for use in authentication, and to review and use the surveillance tapes swiftly, before they grow stale.   And to clear up any confusion, the surveillance should be of the applicant and not of the evaluating physician.

California Labor Code section 5410 allows applicants to petition the Workers’ Compensation Appeals Board to reopen their cases previously resolved by stipulation, assuming the injury has caused “new and further disability.”  For those of us just joining the world of workers’ compensation, that means that fifty four months after the date of injury, without fail, even if the order approving the stipulations has yet to cool from the heat of the copy-machine, the defense can except a crisp new petition, claiming new and further disability.

What constitutes new and further disability?  Well, according to a recent panel decision, a change in the law will work.  In the case of Tuyet Tran v. Cong Tran, applicant sustained an injury to her upper extremities.  The panel Qualified Medical Evaluator included grip loss in the rating, but the stipulations eventually reflected his opinions without the grip loss (recall if you dare, dear readers, those golden years before the insanity of Almaraz/Guzman).

Well, applicant filed a petition to reopen.  The panel QME found no new and further disability – applicant was as disabled at the filing of the petition as she was at the time of the stipulations.  But what of the change in the law under Almaraz/Guzman?  After all, a change in the law is good grounds for a petition to re-open.  (See Kenneth H. Knowles v. Workmen’s Compensation Appeals Board.)

While the workers’ compensation Judge found that applicant’s petition to reopen would bring her no new further loot from the defendant’s coffer, the Workers’ Compensation Appeals Board granted reconsideration. The WCAB reasoned that the change in the law brought about by the several appeals and decisions in Almaraz/Guzman made such a change in the law as to justify a petition to reopen.

Here’s a fun thought – if an applicant with a pre-A/G stipulation can petition to reopen and claim the right to hook an injury up to the A/G machine and start inflating away, could a defendant do the same?  What I mean is, of course, A/G has been used in the past to decrease whole person impairment, couldn’t the defense proceed under the same theory and put it to a QME to see if a lower rating is appropriate?

Have any of this humble blogger’s faithful readers made a try for this yet?

Does the Workers’ Compensation Appeals Board take sides in the fast-food wars?  Do the Commissioners, normally unbiased and committed to the law, take some special form of vengeance against the good people over at Carl’s Jr.?  Undoubtedly, some night years ago saw a drive-thru order for curly fries erroneously and callously fulfilled with regular French fries.   Perhaps a diet soda was served where a regular soda was ordered.  And, who can forget the shame of a ketchup stain on a commissioner’s favorite robe?

This blog had occasion to report to its sharp-witted and kind-hearted readers the case of Bertha Chan v. Carl’s Jr., in which the WCAB held that the post-termination defense of Labor Code section 3208.3(e) did not bar Ms. Chan’s claim for cumulative trauma.  Now, it appears that your humble blogger must once again report to his loyal and dedicated readers that the WCAB has again rejected poor Carl’s defense of a post-termination claim.

The case is that of Maria de Jesus Flores v. Carl’s Jr.  The basic facts are these: Ms. Flores gave two weeks’ notice that she was quitting her job, but was fired before the two weeks had ended.  Less than two weeks after her last day, applicant filed a claim for an alleged injury to her back, upper extremities, lower extremities, neck, head neurological system and psyche, allegedly sustained as a cumulative trauma.

The workers’ compensation Judge ordered applicant to take nothing, reasoning that she was let go by her employer and the post-termination defense barred her recovery.  Applicant petitioned for reconsideration and the WCAB was happy to oblige, glaring angrily at Carl’s Jr.’s Answer from behind their respective Happy Meals.

The commissioners reasoned that an employee who voluntarily quits will not be barred by Labor Code section 3600(a)(10).  The reasoning is fairly straightforward:  the defense in question was intended to protect employers from angry former-employees seeking revenge for being fired, and when an employee voluntarily resigns that’s unlikely to be the case.  After all, it’s the guy who gets dumped that’s bitter about the relationship, not the girl who dumped him.  Well, it’s her loss… Ms. Flores’ loss for quitting, of course.

There are, of course cases, in which this logic would not hold – for whatever reason, Ms. Flores’ employer let her go early – they were entitled to more days of her labor and they didn’t want it.  The facts that Ms. Flores was quitting and that Carl wanted her out suggest that there may have been some hard feeling after all.

In a typical employee-employer relationship, an employee could do some single act which would warrant an immediate termination of employment.  The fact that the employee was already on the way out does not negate the reasoning behind the code section.

Carl, this blog wishes you the best of luck with the Court of Appeal!  Hopefully, your fine cuisine will have more fans on the higher bench.

Some of his blog’s readers may recall a certain workers’ compensation claimant who suffered from various injuries, including weak knees.  Modupe Adunni Martin, a custodian for a Hayward high school, had filed a claim in 2009 for an alleged injury to her ankle.  She forgot to amend the application to include injury to her knees, which apparently buckled at an inopportune moment when meeting her boyfriend in a park.

Private investigators happened to be filming at that time, and this footage and more showing Martin walking without her supposedly necessary crutches, led to a workers’ compensation fraud prosecution by the Santa Clara County District Attorney’s Office.  It now appears that Ms. Martin no longer proclaims her innocence, and instead has pled no-contest to the charges.

As a result of her plea, she will serve up to a one-year sentence in county jail.

Does this seem fair to you?  Your humble blogger isn’t too satisfied with the result.  A woman knew she was lying about her injury, wasted countless physician hours and employer dollars, and performed a sex act in a public park.  For that, she will serve up to one year in county jail.

Once again, the employer will never recoup the costs of investigation, the county will not recoup the costs of prosecution and incarceration, and more fraudsters will be emboldened to try their luck – for the maximum risk of a one-year county jail sentence, get a paid vacation for several years!

Doom and Gloom.  Nobody likes hearing it, and most people don’t like speaking it.  But, dearest readers, your humble blogger brings tidings more of ill than of good.  The good news first: much to the surprise of anyone involved with the California workers’ compensation system, California is not the most expensive state for workers’ comp.  It is not even the second most expensive state in the Union.  The first prize goes to Alaska and the second to Connecticut, based on a recent study by the Oregon Department of Consumer and Business Services.

Now comes the bad news – California is ranked #3, up from a rank of #5 in 2010.  Costs are plenty to go around in the state of Napa fruit and San Francisco nuts – there’s the litigation, the administrative costs, and the medical bills (don’t forget that little number).

Additionally, there is the underground economy – employers, in violation of the law, declining to insure their employees against industrial injuries and unfairly taking business away from their competitors that do.

California’s neighbors, Oregon, Nevada, and Arizona, all enjoy significantly lower rankings of 39, 46, and 37, respectively.

Despite the free status of this publication, your humble blogger remains a very self-interested workers’ compensation defense attorney, and has discovered, to his infinite sadness, that his bar won’t stock itself.  California needs business to stay put and stop running for the state border with jobs and tax revenue in tow.

Some of the provisions of SB-863 will hopefully help with that, but, in the meantime, rejoicing in the fact that California is not Alaska or Connecticut, is a small victory indeed.

Would applicant’s prefer to litigate Labor Code 132a issues in civil court instead of before the Workers’ Compensation Appeals Board?  On the one hand, perhaps the applicant might luck out with a sympathetic jury, one which would value the world’s tiniest violin over the law.  There is also the advantage of driving up the expense and delay for the defense, pressuring a bigger settlement.  And who knows, perhaps, there would be no cap to “damages” for a 132a claim in a civil trial.

Fortunately, we don’t have to worry about these pocket-sized insanities in the workers’ compensation arena.  The Court of Appeal, in a partially published decision, held that an applicant claiming wrongful termination and discrimination based on Labor Code section 132a.

In the case of Michelle Dutra v. Mercy Medical Center Mt. Shasta, plaintiff filed an action for defamation and wrongful termination in violation of public policy, specifically Labor Code section 132a.  Essentially, Ms. Dutra allegedly injured her back while working as a housekeeper for Mercy, and filed a claim in 2008.  Her employment was terminated later that year.  Undoubtedly, Mercy was just retaliating against Ms. Dutra for filing a claim, although the fact that she had committed check fraud, falsified her time-card, abandoned her post without clocking out, and repeatedly gossiped on duty after being repeatedly cautioned not to, might have had something to do with it as well.

But Ms. Dutra did not file a Petition for penalties or increased benefits under Labor Code section 132a.  Instead, she cited one part of 132a, specifically the initial statement that it “is the declared policy of this state that there should not be discrimination against workers who are injured in the course and scope of their employment.”

The Court of Appeal found that applicant’s claim was rightfully dismissed by the trial court, as Labor Code section 132a rests exclusively within the domain of workers’ compensation.  However, there may be other remedies under the Fair Employment and Housing Act, which Ms. Dutra declined to pursue.

In any case, it looks like employers don’t need to worry about jury selection just yet.

The California Supreme Court has decided to take up the Valdez case!

As my readers will no-doubt recall, your humble blogger has diligently documented the progress of the Valdez case, and all its potential benefits for the defense in California’s workers’ compensation system.

Based on nothing more than the description on the Supreme Court website, it appears that the only issue left in Valdez is admissibility – whether treating physicians outside of a valid Medical Provider Network are admissible.  It appears that the holding of the Workers’ Compensation Appeals Board with respect to liability for such physicians’ bills is undisputed – the defense will likely remain liability-free, much to these lien claimants’ dismay.

But what happens if the reports are admissible?

For one thing, applicant’s counsel will be able to unnecessarily prolong litigation my delaying resolution and the close of discovery to allow for more evaluations and reports.  Additionally, applicant-friendly QMEs will have more ammunition upon which to base their reports – imagine a QME who fails to include necessary discussions on such topics as apportionment; a crafty applicant’s attorney will argue that between the extra-MPN physician’s report and the QME’s report, there is a complete report upon which to award Total Permanent Disability for that vicious paper-cut cruelly suffered by applicant on his day off while he was thinking about work.

Hopefully the Supreme Court will recognize that, although applicants should be able to hire as many witch-doctors and butchers to “treat” themselves on their own dime, those so-called reports should remain inadmissible, and the arena of discovery should be limited to the MPN-based treating physician and the Agreed/Qualified Medical Evaluator (or evaluators).

In the meantime, extra-MPN liens should be settled for token amounts and the possibility that extra-MPN reports will be found inadmissible should be used to leverage a more reasonable settlement for the cases-in-chief.

When your humble blogger knows more, dear readers, so will you.

“Cheer up,” I told my brother-in-law, Jasper.  “Not all injuries sustained in parking lots are compensable.”  At that, Jasper seemed to rekindle the possibility of a parking-lot obstacle course and he began to listen closely.

For example, in the case of Jessica Rodgers v. Workers’ Compensation Appeals Board, an employee took a break from work to go to the bank.  She then returned to the work parking lot and arranged her money before stepping out of her car and returning to work.  In between her car and the building, however, a “biker,” who had followed her from the bank, attacked her and stole her money.

Even though the injury was sustained during work hours, between starting and finishing the day’s shift, and in the employer parking lot, the Court of Appeal held that the injury was not compensable because the cause of the injury was formed independent of any work-related activity – the biker just wanted to rob her, regardless of where she worked or who she was.

Likewise, in the panel decision of Basil Perkins v. City of Los Angeles, the applicant, a city animal control officer, was shot while napping in his work-vehicle, while parked in the employer-owned lot, and wearing his uniform.  As his home was over 130 miles away, he made a regular practice of napping in his car after a shift had ended.

Initially, the workers’ compensation Judge found the injury compensable, but the Workers’ Compensation Appeals Board reversed, finding the injury was not compensable, as the shift had ended, and the employee was only in the parking lot for his convenience.  In other words, the scope of employment cannot be artificially extended by dallying on the employer’s premises.

The same occurred when a worker arrived to work too early, as in the writ denied case of Paul Grove (Dec’d), Sharon Grove (Widow) v. Miller Coors, LLC. In that case, the employee had arrived to work early and had used the restroom at work less than two hours before the start of his shift, when he sustained an injury in the restroom.  There, the workers’ compensation Judge found the injury to be non-compensable.

Fortunately, Jasper never got to try out his obstacle course idea – the wheel barrel industry took a down-turn, and he decided expanding beyond his garage was not a good idea at this time.  Regardless, here are some take-away rules:

1. Arriving at an employer-owned or provided parking lot begins the scope of the employment relationship and ends the commute, so long as the arrival is within the regular time for employment.
2. If travel to the employer or the employer’s parking lot presents a “special risk” to the employees, then the time during which the employee is exposed to the risk will not be barred by the Going and Coming Rule.
3. Injuries sustained in an employer-provided parking lot are subject to AOE/COE analysis, so injuries sustained for reasons unrelated to work, such as robberies, will not be compensable, unless the special risk doctrine applies.
4. Whatever the liability for workers’ compensation, the “Going and Coming” rule is not subject to the premises rule for civil liability and respondeat superior, as found by the Court of Appeal in Dean Hartline v. Kaiser Foundation Hospitals.
5. Do NOT invest in the wheel-barrel market if the president of your company is busy planning an obstacle course for his employees trying to get to work.