WCDefenseCA

Normally, this fine and cutting-edge blog confines itself to the goings-on and happenings of California workers’ compensation, in particular the stories and cases that make the defense community better equipped to deal with the wolves growling at our proverbial doors.  But not today.  Today your humble blogger could not resist the temptation to post on a story out of Australia that made it into the WCDefenseCA inbox thanks to the thoughtfulness of a few very kind readers.

A woman in Australia has successfully argued that her injury sustained while engaged in behavior that cannot be described in any detail on this family-friendly blog should be compensable.  Her employer sent her on a business trip to another town.  While there, she contacted a “friend” of hers and the two returned to her hotel room.  While “going hard,” in the words of the eloquent “friend,” a light fixture fell off the wall and hit her, resulting in “facial and psychological injuries.”

In the course of employment, indeed.

The Australian Federal Court held that she was entitled to compensation, just like she would have been had she been playing cards in the same hotel room.  The Federal Court is not the highest court of the land, so common sense may still prevail.

WCDefenseCA is not aware if the woman has pursued any action against the hotel or the maker of the light fixture, but in terms of pure fairness, they seem like more culpable and punishable candidates than the employer.  But such is the cruel fate of employers in Australia – where all is fair in love and work[ers compensation].  G’day!

My dear readers,

Some of you may not realize how absolutely dedicated your humble blogger is to your continued entertainment and, to a possibly equal extent, to keeping you up to date on all the happenings of the workers’ compensation world.  Not only do I suffer the verbal abuse of applicants, their attorneys, lien claimants, and judges in defending the endless onslaught of claims… I am also willing to suffer the physical abuse that will no doubt follow this post.

A Los Angeles City firefighter was arrested recently for allegedly filing false workers’ compensation insurance claims.  After claiming he was unable to do his job as a firefighter, he continued to compete in various mixed martial arts events, winning a good number of them.  In fact, on March 7, he tweeted “[j]ust finished running 2.5 miles in 16:44 min.”

This is one of the more blatant examples of fraud in our system, but such stories are both good and bad for the industry.  On the bright side, the story highlights that fraud does happen; that it happens amongst some of the more highly regarded and respected members of the community (including police and firefighters); and that some people are just plain cheaters.

But such stories also have a negative effect.  They take away from the fact that most fraud isn’t this high-profile or blatant.  Most fraud includes subtle theft – claiming an injury prior to retirement; sitting at home instead of working while collecting disability checks; claiming a recovery from an injury to return to work, only to cause oneself greater impairment.

In this case, the fraudster (who is probably on his way over here to beat me up right now) screamed his deceit from the mountaintops – most of the parasites unlawfully draining the resources of California’s employers, insurers, and government entities are not so easily caught, nor their apprehension so widely broadcast.

One of the stories making the news around the internet is that Walmart has elected to opt out of the workers’ compensation system in Texas.  Now, now, before you get all excited about escaping a system that leaves every possible participant dissatisfied (except the occasional lien claimant), California does not allow its employers to opt out of workers’ compensation.  Texas and Oklahoma do.

Why is this relevant to California?  More and more businesses in California are finding the Golden State to be a bit too expensive for their business-blood.  When big-name employers like Walmart (and Target) decide the workers’ compensation system is not worth it, it makes waves in the news world and posits the question to California businesses – is California worth it?

As a defense lawyer, I am very well aware that my entire practice depends on employers staying in California and, ideally, growing in California.  Insurance companies understand this as well – the client, the customer, the almost-business-partner, is the array ranging from the solo practitioner who wants to get insurance for himself to the Walmarts of the world (but not Texas) buying insurance for their thousands of employees.

Applicants’ attorneys and labor unions don’t seem to understand this – even the settlers of Easter Island eventually realized that you can only cut down so many trees before there aren’t any left.

This blog has made the point before and will, with all decorum, make the point again:  unless something is done to cut the costs of the workers’ compensation system, Texas employers will continue to opt out, and California businesses will become Texas businesses.

Maybe this whole workers’ compensation thing isn’t worth it.  After all, the purpose of the workers’ compensation system was a trade-off: employers get caps on their liability, employees get quicker access to benefits, and the variable of fault is no longer part of the equation.  So, slip on a banana peel at the supermarket where you work, and you get benefits, unless you were shopping on your day off, then you’re just a klutz.

But what if you’re an employer and you’re fed up with this ridiculous system!  You’re tired of applicant’s attorneys demonizing you to your employees; you’re tired of paying insurance companies or defense lawyers or being audited again and again by the state just for self-insuring?  What if you could just opt out?

What if an employer could opt out of the workers’ compensation system?

That’s not the thinking in California, but it is in Oklahoma.  Having passed the House and the Senate of the state where hard work still conquers all, the law now awaits calibration between the two houses of the state Legislature before going to the Governor’s desk.  Texas already has an opt-out process for workers’ compensation, but in typical Texas fashion, was the only state to do so (until now).

One of the stated purposes of House Bill 2155 is to “[a]ssist the state in attracting and retaining business, thereby contributing to the overall economic development and well-being of its citizens.”

But where would Oklahoma, as a state, attract business from … except other states?  Perhaps other states like … California?

Sacramento – the rest of the Union is out to poach California businesses.  Please don’t make it easy for them to do so by driving every employer off.

What’s the highest settlement in a California workers’ compensation case you’ve ever heard of?  If you’ve been getting your news somewhere other than WCDefenseCA (and shame on you for that!) then you’ve seen the recent headlines regarding the $8.9 million settlement secured for a young applicant who claimed injury in the form of depression, cognitive deficits, anxiety, psychosis, self-mutilation and a diagnosis of multiple personality disorder.  Interestingly enough, there were no objective signs of a brain injury (negative MRI and CT scans).

The story, available on Yahoo Finance as well as other sources, had some interesting comments from the applicant’s attorney.  Specifically, the attorney commented on his practice approach – fewer clients and more time spent with each client.  In a time when the deposition may be the first time an applicant’s attorney meets his client, or perhaps the Board waiting room where the applicant’s lawyer will walk around shouting his or her name, this approach is refreshing – perhaps there is hope for the applicant’s bar after all?

Even if the panel process of Labor Code sections 4062.1 and 4062.2 doesn’t allow parties to get their own Qualified Medical Evaluator, when the stakes are this high, it may be worth it to retain an expert to help navigate the waters, even if the defense can’t compel an evaluation or get the report admitted.

Perhaps cases like these will help persuade workers’ compensation Judges to start holding applicant’s attorneys to the same standard of file review and case preparation as they do defense lawyers.

WCDefenseCA is happy to celebrate it’s 200th post!  Thank you to my dear readers who have subscribed, e-mailed, called, visited, re-visited, and declined to note the obvious.  (You call this a blog?  Where are the pictures of cats doing funny things?  Isn’t that what the internet is for?)  WCDefenseCA’s readership is somewhat of a (very well informed) club.  To celebrate, today’s post is about another kind of club…

One of the stories making the news is that of a state correctional officer who claimed his gunshot wound, sustained while in a San Francisco “sex club,” was industrial in nature.  (Honestly, folks, I don’t make these up!)

The correctional officer, while engaged in his duties as a prison bus driver, was spotted by a parolee, a violent felon, who then proceeded to shoot the officer.  At least, that was the officer’s theory.

The prosecutor in the officer’s attempted perjury case had a different one – the officer was engaged in a… well… in an act with another club patron’s “female companion,” while that club patron was engaged in what was likely a similar act with the officer’s wife.  An argument broke out and the result was the officer’s injury.  Not exactly industrial, even if the shooter was never caught and the cause of the shooting was “mysterious.”

The jury found both the officer and his wife guilty of attempted perjury.

Thanks for reading!

Andre Torres, now a female, was recently sentenced to 11 years to life in prison for the brutal 2010 knife attack against a workers’ compensation defense attorney in Los Angeles.

WCDefenseCA is known for making sarcastic jokes and poking fun at the more insane aspects of California’s workers’ compensation system, but this story is not a source of amusement by any means.

Torres, a man at the time of the attack, overheard that the victim was a defense attorney with the same firm that resisted Torres’ workers’ compensation claims some time ago.  The victim had never actually worked on Torres’ case.

Torres stabbed the victim from behind with a butcher knife and the victim and a passing-by good Samaritan eventually managed to subdue Torres’ long enough for law enforcement officers to arrive.

California’s workers’ compensation system is one riddled with frustration and difficulty for  all parties involved.  Defense attorneys, adjusters, and employers must always be on their guard for situations such as these.

Although there were no threats made in this instance, if any are made they need to be dealt with seriously and immediately – violent attacks such as these can and do happen.

Be safe out there, dear readers, and your determined blogger will endeavor to do the same.

So by this point, you’ve read Parts 1 and 2 of this article.  You’ve laughed, you’ve cried, and you’ve decided not to give up on doing business in or with California, and also to stop sending your fragile blogger e-mails accusing me of actively trying to depress you.

So what can you, the employer, insurer, or the self-insured employer do to keep your liability down when you send your employees into California?  For starters, either purchase a California workers’ compensation insurance policy or make sure your current policy covers employees when they are out of the state.  Next, ask your attorney to secure a certificate from your state regarding its workers’ compensation reciprocity laws with California.

And what do you do if your state doesn’t have reciprocity or similar laws?  Lobby, and get them passed.  In 2011, Florida adopted House Bill 723, establishing reciprocity laws.  Michigan followed suit later that year with House Bill 5002.  If your state does not have a reciprocity law, perhaps some lobbying dollars spent now can save workers’ compensation dollars in the future.

Kansas has taken another approach.  A recent arbitration ruling in a case between the Kansas City Chiefs and the NFL Players Association held that Chiefs players must bring their workers’ compensation claims in Kansas, ordering the players to abandon their California cases.

The basis of this ruling appears to be the contract terms between the players and the team.  From noted sports-law blogger Daniel J. Friedman, of LockoutLowdown:

“Article 41 of the newly ratified NFL CBA encompasses the NFL and NFLPA’s ‘Worker Compensation’ plan.  As part of this agreement, under Art. 41, Sec. 5 states ‘The parties shall immediately establish a joint committee that will make good faith efforts to negotiate a possible California Workers’ compensation alternative dispute resolution program on a trial basis (i.e., carve out).’  However, Sec. 6 Reservation of Rights states ‘The parties shall retain the positions they held prior to this Agreement with respect to all existing litigation and arbitration involving workers’ compensation issues, including without limitation, the federal and state courses in California (Titans), Illinois (Bears) and New York (Mawae, Harvey) regarding offset issues or choice of law and forum provisions contained in NFL Player Contracts, and nothing in this Article shall affect positions taken in any such pending litigation.’    I do not think that the carve out provision has been agreed to yet but the resolution in this case likely tilts the balance of power back to the League’s favor as they continue to make ‘good faith efforts’ in coming to an agreement related to carve-out.  I would not be surprised if the players in this situation appeal.  However, because this was an arbitration, it will be very difficult to have the ruling overturned unless they can prove their was an abuse of process.”

But, given the fact that California regards contract terms waiving access to California’s workers’ compensation system to be unenforceable, it remains to be seen how effective this approach will prove.

The State of Oregon has put together a list of the reciprocity laws of various states.  You can review it here.  Your humble blogger does gently suggest you verify for yourself any citations found on this website – I certainly have not done so and can not make any claims as to its accuracy or current status.

So, will this fearless blogger, cumulatively traumatized by California’s workers’ compensation system, be seeing you in the Golden State anytime soon?

Yesterday we discussed the problem facing professional sports and California games – players seek California benefits after playing in California a few times as part of a multi-season career.  This is a problem for any business that has prices reflecting non-California workers’ compensation costs.

This problem doesn’t only apply to professional athletes – they just get all the attention.  The same law applies to traveling non-athlete employees.  California hosts conferences.  California hosts training seminars.  California is just a nice place to visit.  And often enough, if you’re looking for skilled talent, California can be a great place to send your agents to do some recruiting.

But while your employees are conferencing, training, visiting, or recruiting, they’re exposing you to liability under California’s workers’ compensation system.  Are you prepared to pay Golden State rates after a lifetime of reasonable prices?  Maybe you don’t have to.

Your hypnotically eloquent blogger may have worked you into a frenzy over the exploitation of employers and insurers nationwide by one-time California visits and the effect of subjecting non-California defendants to California workers’ compensation jurisdiction.

Put down the torches and pitchforks, take apart the guillotine, and please, please, please, stop holding your formerly favorite football star or conference speaker hostage – I assure you there is a better way!

California does jump the gun on claiming jurisdiction as often as possible for workers’ compensation matters, but Labor Code section 3600.5(b) provides a reprieve.  As the law holds, California will not claim jurisdiction over a non-California employee injured in California, even if that injury is part of a cumulative trauma, if the following conditions are met:

1. The employee is only “temporarily” in California;
2. The employee is covered by extra-territorial insurance (meaning the policy applies to the worker even when he or she is out of the state in which he or she normally works);
3. The laws of the state where the employee is normally employed are “similar” to those of California; and
4. The state where the employee is normally employed has a reciprocity rule with California.  In other words, California keeps its hands off state X, and state X keeps its hands of California employees injured in state X.

In an example contrary to the case mentioned in yesterday’s post, the recent panel opinion in the case of Vaughn Booker v. Cincinnati Bengals held that California did not have jurisdiction over a case in which Vaughn Booker played one game out of 48 in California.

Mr. Booker sought to invoke California’s workers’ compensation system to adjudicate his cumulative trauma claim.  But the Bengals had done their homework, and the WCAB held that (1) applicant only temporarily worked in California; (2) Ohio and California have “similar” workers’ compensation laws; (3) Ohio’s laws cover applicant while he is working in California; and (4)Ohio has reciprocity with California in accordance with section 3600.5(b).

In other words, the Bengals escape to their home territory with their stripes very much intact.

So what can you do other than boycotting the State of California?  Unless you’re willing to give up on medicinal marijuana, body-builder governors, and the nation’s largest concentration of happy cows, I suggest you come back tomorrow for Part 3 of 3.

This week, the California Labor Commissioner announced the launch of the Criminal Investigation Unit which will “investigate employers who perpetrate wage theft and other criminal activities against workers.”

Detecting lawbreakers and bringing them to justice is a worthy pursuit, of course, but aren’t there already law enforcement agencies who perform this very work?  And isn’t the nature of this sort of crime easily reported by workers?

These resources should instead be used to detect and prosecute frauds who fake injuries or impairments, and the “medical” facilities enabling them, billing for procedures never performed and over-billing for those actually done.

At present, it seems that employers must bear all the costs of investigating fraud, not only detecting it but also gather sufficient evidence to prove the fraud beyond a reasonable doubt, before local law enforcement will take over.

Certainly, this new unit will accomplish some good, but so long as its focus is the hunt of employers for real or imagined infractions, it will also serve as a vehicle for disgruntled employees to harass their employers with false reports and expensive litigation.  Hopefully, the maiden voyage of this unit will not signal a chill in the water for California’s employers.