Category Archives: Tactics and Strategy

WCJ to Applicant: Pick up Your Burden!

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Apparently, they’re not handing out Order Granting Applicant’s Petition to Reopen, (or Ogapr, as your sentimental blogger’s great-grandma used to say) at some of the Board venues anymore.

In the case of Seb Baghoomian v. Workers’ Compensation Appeals Board (writ denied), applicant filed a Petition to Reopen for New and Further Disability and the workers’ compensation Judge, the WCAB, and the Court of Appeal were all having none of it.

Applicant was employed as a foreman in 2003 when he was attacked by four thugs while filling up gas on a work-related trip between Pasadena and San Francisco.  He was unconscious for five minutes during the attack but eventually returned to work for about two months before he quit.

Applicant sought treatment for neck pain and left-sided numbness and weakness, also filing a claim for injury to the back, head, and psyche.  The claim was settled by way of stipulation in December of 2007.

In July of 2011, applicant filed his petition.  The matter went to trial but the WCJ denied applicant’s petition, reasoning that applicant had failed to carry his burden of proof as set out in Labor Code section 3202.5.

At trial, applicant presented several PR-2 reports from his primary treating physician, but offered no narrative reports or reports of any kind from the treating physician to actually support the theory that he had sustained new and further disability.   The WCJ also rejected applicant’s efforts to allow him to develop the record, citing the Elias case mentioned on this blog some time ago.

Perhaps the burden of proof still falls on the applicant now and then, which is not something this cynical blogger can object to with any conviction.

How to (Sometimes) Save on 1 Year of Temp. Disability

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The Court of Appeal recently denied the City of San Rafael’s petition for a writ of review, the workers’ compensation Judge and the Workers’ Compensation Appeals Board having both rejected defendant’s theory that Labor Code section 4850, using the words “in lieu,” triggers the two-year maximum on temporary disability found in Labor Code section 4656(c)(1). The case is City of San Rafael v. Workers’ Compensation Appeals Board (Monte Payne).

The WCJ and the WCAB both held that the wage continuation benefits are not temporary disability, so applicant was entitled to one year of wages (§ 4850) and two years of temporary disability (§ 4656(c)(1)). Fortunately for most employers, Labor Code section 4850 is confined to peace officers, firefighters, and other public servants with especially powerful unions and lobbying groups. (To my dear city and county adjusters, I’m sorry!)

This was a laudable effort, but it appears there was some non-binding, writ-denied authority rejecting the idea. Your forward thinking blogger could re-list that authority here, but can’t imagine how such leg-work could possibly help the defense community. However, your ever-creative blogger has a modest, suggestion of what might help in a very limited and narrow set of circumstances.

Labor Code section 4850 allows for continued wages “in lieu of temporary disability benefits,” whenever an applicant “is disabled, whether temporarily or permanently, by injury arising out of and in the course of his or her duties.” But for those injuries which occurred on or after April 19, 2004, and on or before December 31, 2007, section 4656(c)(1) limits the amount of temporary disability to not only 104 weeks, but a maximum of two years, whether all 104 weeks have been used or not.

Bear in mind, dear readers, what follows is another “crazy” idea from your legally adventurous blogger – I’m not sure if this will work, and if you’re inclined to try it, please let me know how it goes. And if you’re looking for a lawyer willing to risk sanctions and a disapproving head-shake from a WCJ, I’ll be glad to step in.

So you’ve got an applicant who qualifies for wage continuation under section 4850, and the date of injury is between 4/19/04 and 12/31/07. section 4850, in terms of temporary disability, only applies if there IS temporary disability. So, when applicant is TD and demands section 4850 benefits, send him or her two checks – one for a day of temporary disability, and one for wage continuation under 4850.

But now that the applicant is getting wage continuation under 4850, he or she is no longer entitled to temporary disability payments, so in two weeks, send only one check (wage continuation) and a termination of benefits notice. When the 4850 benefits have become exhausted, and applicant demands temporary disability benefits, the clock has already been running for a year, and you may have just saved 2/3rd of a year’s salary for your reserves.

I cite, as example, the panel decision of Rhonda Morris v. Nummi (2008 Cal. Wrk. Comp. P.D. Lexis 925), where the WCAB held that the payment of temporary disability from December 14 to December 18, 2005 had precluded applicant from collecting temporary disability payments more than two years later, following surgery, and that WCAB was not permitted to consider whether applicant was actually temporarily disabled at the time the first payment was made.

Do you think this would work?

Visiting California for the Workers’ Comp – Part 3 of 3

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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?

Visiting California for the Workers’ Comp – Part 2 of 3

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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.

Visiting California for the Workers’ Comp – Part 1 of 3

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California workers’ compensation does not often get attention from the world at large.  Most people work, some people get injured, and the lawyers usually fight it out – your typical newspaper or anchor will not discuss workers’ compensation because of its narrow application.  But then, something happens now and again, which shines a flood-light onto the swamp, and sends all of workers’ compensation’s dirty little secrets scurrying for cover.

One such light-bringing event was the front-page story of the Wall Street Journal (this one is behind a pay-wall), which covered, at length, the extent to which small hospitals go to perform expensive and often unnecessary treatments, using an army of lien-representatives to exploit the weakness of California’s workers’ compensation system.  Another is the problem plaguing professional sports.  Your humble blogger had the privilege of summarizing the problem for Lockout Lowdown, a sports law blog, some time ago.

The problem faced by professional sports teams is very real – players will have a lengthy career of several years, play as little as a single game in California, and then file a claim for a career-long cumulative trauma, seeking California benefits.  Often enough, the player’s only contact with California is the one game.  This was the case with Cleveland Crosby, who played between 1980 and 1985, and played a single game in California in 1982.

In Injured Workers’ Insurance Fund of the State of Maryland v. Workers’ Compensation Appeals Board (2001) 66 Cal. Comp. Cases 923 (writ denied), the WCAB held that, because Cleveland Crosby played a game in California while employed by the Baltimore Colts, California had jurisdiction over the Colts for Applicants cumulative trauma injury.

Defendant fought back, naively invoking common sense and reason before bringing out the big guns of Labor Code section 3600.5(b). But Insurance Fund didn’t have the right ammunition: it did not provide certification of reciprocity with California, and the insurance coverage did not appear to cover out-of-state injuries.  Because the defendant in this case failed to prove reciprocity or extra-territorial coverage, applicant prevailed.

But don’t lose hope! Come back tomorrow for Part 2 of 3…

Mentally Projected, But Totally Unwritten, Objections

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Applicant’s lawyer:  But we objected to the treating physician’s report!

Defense attorney:  No you didn’t!

Applicant’s lawyer:  Well, I was thinking my objection really hard…

Perhaps the dialog didn’t go exactly like that, but this video of a Dilbert cartoon sums it up quite nicely.

The Workers’ Compensation Appeals Board recently denied defendant’s petition for reconsideration in the case of Harrison v. Gallo Glass Company (full disclosure – the defense attorney in this case is Thomas J. Harbinson, of Harbinson Tune Kasselik)

Applicant’s treating physician gives him the discharge – according to the PTP, the applicant was back to pre-injury status and could return to regular work.  The day after the report was sent to applicant with a denial notice, applicant mailed a request for a new treating physician to the defense.

The rest of the process is typical of going to a panel – proposal of Agreed Medical Evaluators, a panel request, etc.  But there was no written objection to the treating physician’s report…

The workers’ compensation Judge found that the request for a change in treating physician pre-dates the “discharge from care notice,” and applicant’s efforts to change the treating physician, although never communicated to the defendant until after the PTP had conducted an evaluation and made his conclusions, relieved applicant of any duty to object.

In a similar case, the WCAB held that filing a declaration of readiness to proceed satisfied the written objection requirement to a utilization review decision.

So the full effect of this case is that applicants’ attorneys can now prepare requests to change treating physicians, and simply submit them after an applicant reports to his attorney the PTP’s orally communicated findings.  If a PTP visit does not go well, a request for a new PTP can be filed before the doctor even signs his or her report.

Using MORE Sanctions to Restrain Lien Claimants

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Some time ago, your dedicated and consistent blogger reported on the tactic of using sanctions to restrain lien claimants. After all, if lien claimants want to leverage the cost of litigation to force a settlement, why not turn the tables and leverage the cost of sanctions to knock out baseless liens?

In California’s workers’ compensation system, defense lawyers and applicants’ attorneys agree – liens are not unlike a locust swarm plaguing the system.  The arm movement necessary to swat one only exposes the swatter to more, and all the while they ravage and consume all the green of the land.

It looks like this workers’ compensation lawyer is not just howling into the wind anymore.  In the case of Myra Campos v. Keiro Nursing Home, lien claimant Rift Interpreting filed a lien for interpreter services, but failed to appear at a lien conference and then insisted on proceeding to a lien trial without any apparent evidence to support the validity of its lien.

In fact, it appeared to the workers’ compensation Judge, the Workers’ Compensation Appeals Board, and now appears to your attorney-blogger, that lien claimant expected to use the cost of litigation, rather than the chance of prevailing on the merits, to leverage a settlement.

No doubt, in the past, this very tactic had worked to great success for Rift Interpreting and other lien claimants.  I have had lien claimants pull this stunt before, but to considerably less success than they were hoping for.

The WCJ not only disallowed the lien, but also held that “the activities undertaken by [lien claimant] were egregious and frivolous, warranting sanctions in the amount of $2,500.00 plus the per-capita share of reasonable value of the services rendered by defendant.”

The WCAB denied lien claimant’s petition for reconsideration, noting that lien claimant had not even remotely approached the burden set out in Guitron v. Santa Fe Extruders (2011, en banc), which required interpreter lien claimants to show that (1) that the services provided were reasonably required; (2) that the services were actually provided; (3) that the interpreter was qualified to provide the service; and (4) that the fees charged were reasonable.

Dear readers – don’t feed these lien claimants, even for tiny claims.  I remind you of the story of Three Billy Goats Gruff.  It appearing that the Appeals Board has grown tired of these extortion tactics, now is the time to collectively raise the cost of doing business on lien claimants and cut the cost of doing business in California.

132a and the Kitchen Sink Subpoena

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Labor Code section 132a allows applicants to sue their employers for “discrimination,” which is normally some allegation of an adverse action taken against an employee because of an industrial injury.  By law, employers may not be insured for 132a claims and must bear the risks of liability and the costs of litigation themselves.  Non-workers’ compensation attorneys often find themselves asked to advise their business/employer clients in 132a matters, thinking this will be no different than contract disputes or employment law litigation.  It is different – save your sanity and contact a workers’ compensation attorney to help navigate the murky, murky, murky waters.

Recently, the Workers’ Compensation Appeals Board issued a panel decision in a 132a case, granting defendant’s petition for removal of a workers’ compensation Judge’s discovery order. (Lidia Borrayo v. Tobar Industries.)

To prove her case of discrimination, or possibly to scare the defendant into settling, applicant’s attorney proceeded on a protective order instructing defendant to produce voluminous records, including trade secrets and information about third-parties (other employees).  The defense lawyer properly sought removal (as opposed to reconsideration) seeking a significantly narrower scope for the discovery order.

Among the information originally sought was the amount defendant pays for workers’ compensation insurance, for its group health insurance, employer profit and loss statements for 2008-2010, balance statements, and a significant amount of information about other employees laid off or hired in the past.

The WCAB correctly reasoned that allowing the discovery order to stand would subject defendant to significant prejudice and irreparable harm, and ordered the case returned to the WCJ to have applicant prove that this seemingly irrelevant information is “reasonably calculated to lead to the discovery of admissible evidence.”

Applicants will often enough serve an employer with a “kitchen sink” subpoena, wanting anything and everything, most of which is completely irrelevant to the 132a claim.  Part of this is because applicants’ attorneys don’t want to waste their time narrowly tailoring a subpoena when there is a chance an uninformed defendant will comply with all of it.  Part of this is because the prospect of burdensome and exhausting discovery compliance can scare up more settlement dollars if the employer is not properly advised.

If you find yourself on the receiving end of these boilerplate subpoenas, have your attorney push back – there’s no reason why a former employee who will likely go to work for a competitor should be provided with your trade secrets.

A Very Special Valentine’s Day Blog Post

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One of the most romantic things a man and woman can ever do is to get married in a spur-of-the-moment event with the overarching goal of avoiding being forced to testify at a deposition in the other’s workers’ compensation case.

Applicant, in the case of Ricardo Mota v. Cast Aluminum & Brass Corporation, testified at a deposition to having, in the past, had a drug abuse problem.  When pressed for details, he testified that his “wife” knew about them.  Defendant’s investigation revealed that Mr. Mota’s “wife” was actually his long-term girlfriend, and so objected to applicant’s raising of the marital privilege against having this “wife” testify against applicant.

Defendant noticed applicant’s “wife’s” deposition, setting if for October 20, 2011.  On October 19, 2011, at 4:31 in the afternoon, defendant’s attorney’s office received a license and certificate of marriage showing that applicant and his wife were now married (as of October 12, 2011).

The workers’ compensation Judge declined to issue an order compelling the new Mrs. Mota to appear and testify at her deposition, citing Evidence Code section 970.  The Workers’ Compensation Appeals Board also declined to grant defendant’s petition for removal, incorporating the WCJ’s report and recommendation.

It looks like the rules of Evidence do apply in workers’ compensation (sometimes).  In any case, your still-cynical blogger is happy to report that love is alive and well, even in the workers’ compensation system.  Happy Valentines day!

Going and Coming Rule Fails

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The “going [to work] and coming [from work]” rule is a subject that surfaces now and then in the world of workers’ compensation.  After all, injuries can happen anywhere, so why not while going to or coming from work?

The defense generally provides that an employer is not liable for workers’ compensation benefits for injuries sustained in transit between home and work or work and play.  But the defense is not a stone wall, smooth and solid and impenetrable, but rather a chain-link fence, with plenty of gaps, patches, and weaknesses.

In the case of Jesus Felix Castro v. State of California, Department of Forestry and Fire Protection, applicant was a seasonal firefighter, who sustained a devastating injury as a result of a catastrophic car collision while he was on his way to work.  The attorney for the defense naturally raised the going and coming rule – on the way to work means on the way out of the California workers’ compensation system, generally speaking.

But the defense failed.

Applicant presented several witnesses, Mr. Castro’s co-workers, who testified to the effective requirement of bringing one’s own car to work.  There was more than one fire station to staff, and a firefighter never knew where he or she would end up working that day.  As such, employees had to bring their own car to work to get from Station A to Station B, as necessary.

The workers’ compensation Judge and the Workers’ Compensation Appeals Board both held that the injury was compensable.

Bear in mind, learned readers, this holding is not new or off-the-cuff.  This holding was also issued in Smith v. Workmen’s Comp. App. Bd. (1968) “Surely in this day of a highly motorize society we cannot cast the going and coming rule as a protective cloak over the shoulders of the employer who, for his own advantage, demands that the employee furnish the car on the job.”

But this case does serve to remind employers, especially those in the private sector, that there is no such thing as a free lunch – money saved in shifting the cost of the travel between work sites to the employee can cost a lot of money in the form of an otherwise barred workers’ compensation claim.