WCDefenseCA

And so the SAWW grows!

An increase in California’s State Average Weekly Wage (SAWW) to $1,059.38 in the 12 months before April 2012 brings glad tidings of higher wages (or fewer jobs) and the unfortunate effect of increased temporary disability payments, as per Labor Code section 4453.  (Much to the surprise of some, this Labor Code section does not actually entitle any worker to a free, state-sponsored saw, but actually has to do with SAWW – state average weekly wage.  But, perhaps, some day?)

The DWC has an announcement that starting January 1, 2013, the temporary disability minimum will be $160 and the maximum will increase to $1,066.72 per week.  Mark your calendars folks!

The glass half full folks will no doubt say that this shows that California workers are faring better and that the economy is improving.  The glass half empty folks will no doubt say this shows there are fewer jobs and the ones that are left are a bit higher-paying than the average was before.

Temporary disability payments provide an applicant with 2/3^rd of his or her income while applicant can’t (or won’t) work.  What happens when applicant’s employment is terminated for cause while applicant is still “temporarily disabled”?  The obvious answer is a 132a claim, but one can expect allegations of discrimination no matter how egregious the applicant’s conduct was during the time leading up to the firing.

In the case of Ramon Flores v. Wal-Mart Associates, Inc., there was no 132a claim.  However, applicant was a door-greeter at Wal-Mart.  He noticed two individuals trying to leave with boxes of beer and, suspecting them of stealing, tried to stop them.  In a fit of alcohol-thirsty rage, the thieves knocked the brave applicant over and made their escape.  The fall was the mechanism of injury.  While giving his account of what happened, applicant was fired for violating firm policy.

My loyal readers may recall a similar case from the early days of this blog, where another employee exceeded his express duties of serving to “observe and report” by trying to catch bandits and sustaining an injury instead.

At trial in the Flores case, the defendant offered evidence that applicant as fired because he violated the company’s policy regarding shoplifting – a couple of cases of beer are not worth getting injured over, and they are especially not worth an employer paying the costs of a workers’ compensation claim.

In fairness to applicant’s position, your humble blogger must confess that the thought of perfectly good beer being kidnapped by thugs and eventually meeting a cruel fate in some horrid alley or parking lot triggers a considerable protective instinct that is hard to resist.  Nothing would bring me greater joy than riding to the rescue of said beer and enjoying the sweet rewards such libations have to offer.  Sadly, though, I am aware that we must all resign ourselves to helping the prosecution build a case against shoplifters and some amount of alcohol must be sacrificed in the process.

The workers’ compensation Judge ruled that applicant was entitled to temporary disability payments.  The defendant filed for reconsideration and the Workers’ Compensation Appeals Board granted, reversing the WCJ.  The reasoning in this case is key – citing Gonzales v. WCAB, the Board noted that temporary disability is a benefit which is paid while a worker is unable to work because of a work-related injury.  Here, applicant was unable to work, but not because of a work-related injury.  Instead, applicant was unable to work because he had violated a company policy and lost his job.

Wal-Mart deserves credit for having a clear company policy, regularly explained to the employees, and consistently enforced.  If another worker had received a medal for trying to stop shop-lifters, Wal-Mart would have been paying temporary disability and 132a supplemental benefits as well.

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?

Recently, your keen-nosed blogger had sniffed out and reported on a case in which a workers’ compensation Judge had awarded an applicant total temporary disability when her employer could not offer her work because, as it turned out, she was in the country illegally.

It appears that the Cubedo decision was not an isolated case but rather the start of what could well be the policy of the Workers’ Compensation Appeals Board.  Though no binding authority by any means, a workers’ compensation defense attorney should be well advised of this possible defense.  Recently, a panel rescinded a WCJ’s award of total temporary disability because any sort of employment: regular, modified, or even alternative, was prohibited by the law after the discovery that applicant was in the country illegally (much like Ms. Cubedo).

In the case of Martin Esparza v. Barrett Business Services the WCAB held that applicant’s inability to work, due to his immigration status, does not render him TTD, and so applicant gets nothing (at least no type of temporary disability benefits).

TTD is not a forgiving fox once let into the hen-house, and the defense attorney dodged a big bullet for his client in this case.  But before the defense community erupts in a choreographed dance number all over the state to celebrate this decision, I urge you to consider two potential dangers on the horizon.

First of all, employers face the risk of prosecution for hiring illegal immigrants.  Some employers think they can turn a blind eye when hiring a new employee, especially to the more glaring social security and application frauds, then suddenly see the light when it comes time to pay out after an injury.  Sooner or later the federal government will decide to refill its coffers through fines and penalties, and employers are always a juicy target.  In other words, be careful who you hire – temporary disability might turn out to be the least of your concerns!

The federal government isn’t the only one with coffers to fill.  If you saw yesterday’s post, you know that California is going to have three more WCJ salaries and pensions to fund.  The state has already created a Death Without Dependents unit to pick the pockets of dead employees and leave their relatives out in the cold.  The state can just as easily create a unit to collect temporary disability that would go unpaid because of immigration status.  And, as DWD generally collects the maximum death benefit for a spouse with no children, a unit of this sort could collect 104 weeks of TTD.

One way or another, by hard-working readers, either California, or the United States Government (or both) will get it’s “due.”

Your ever-researching blogger recently came across an opinion in which the weight of an applicant’s testimony and a treating physician were pitted against the opinions of a Qualified Medical Evaluator.

Amalia Anaya was awarded 73% permanent disability following a 1997 injury to various body parts while employed by the City of South Gate.  Applicant filed a timely petition to reopen for new and further disability, but after years of litigation and several evaluations, a qualified medical evaluator found applicant to have sustained no new and further disability, to be again permanent and stationary, and to, quiet possibly, have improved since her 2000 award.

Applicant testified that she had in fact sustained new and further disability, and her treating physician (who apparently thought himself a vocational rehabilitation expert) gave the opinion that Ms. Anaya was not trainable to perform other work and could not perform the work previously done because of her injury.

The Workers’ Compensation Judge relied on the QME’s opinions in denying applicant an award of any further disability (applicant had claimed she was now permanently and totally disabled).

In reviewing the decision after applicant’s petition for reconsideration, the Workers’ Compensation Appeals Board held that “applicant has the burden of proving new and further permanent disability, but her testimony is insufficient to meet that burden.”  Moreover, a treating physician’s conclusions regarding the prospects of training and employability are not substantial evidence – one must retain a vocational rehabilitation expert for such evidence.

Although the WCJ did award some temporary disability, the WCAB denied applicant’s attorney’s request that the attorney’s fee be paid out of the TD.

This is not a groundbreaking decision by any means, but it does provide some foundation for fighting claims of PTD, which can be disastrous for various reasons.  A lifetime supply of temporary disability payments, an attorney’s fee paid up front based on a universal life-expectancy chart, and, as always, those drops of blood in the water that send the rest of the sharks into a frenzy.

WCDefenseCA sends hearty congratulations to the City of South Gate for this victory.

The Court of Appeal recently denied an applicant’s petition for a writ of review in a case primarily dealing with the Workers’ Compensation Appeals Board’s 5-year jurisdictional limit.

Essentially, applicant filed a petition to reopen for new and further disability a few months shy (54 days) of five years past his date of injury.  The Agreed Medical Evaluator found that applicant had remained permanent and stationary.

Applicant then underwent (industrial) back surgery in November of 2009, and defendant provided temporary disability benefits for roughly four months, before stopping on the grounds that applicant was not temporarily disabled at the time the petition was filed.

The issue proceeded to trial and the Workers’ Compensation Judge found that applicant was entitled to temporary disability benefits from the date of his surgery through the date of the trial (and ongoing).

Following defendant’s petition for reconsideration, the Workers’ Compensation Appeals Board found that there is no authority to award temporary disability for a period beginning after the five-year period has expired, even if a petition to reopen was timely filed.

In other words, if applicant does not begin a period of temporary disability within five years of his or her injury, no more TD will ever be award.  Not a groundbreaking finding, of course, but a useful tidbit of knowledge to keep in mind when facing those pesky petitions to reopen.

The writ denied case?  Gregory McBee v. Workers’ Compensation Appeals Board.

A recent writ denied case discussed (and erroneously concluded) that delayed and un-guaranteed income from past employment does not affect temporary disability benefits.

In the case of Ralphs Grocery Company v. Workers’ Compensation Appeals Board (Matthew Boyd), applicant alleged a cumulative trauma injury which was denied by the defendant.  One of the issues in the case was that of temporary disability.

As it happens, applicant was, at one time, in the real estate industry.  After real estate values plunged into a nose dive and took many of its participants with it, applicant went back to work for Ralph’s as a store manager.

After leaving the industry, applicant still referred potential clients to his former colleagues/competitors and, after the alleged injury resulted in a surgery, applicant’s former colleagues/competitors finally paid “finder’s fees” in the amount of $32,000.00.

The question is – does this income in any way offset the temporary disability benefits defendant would otherwise be required to pay?  The answer, at least in this case, is no.

Defendant’s claim for credit for TD up to $32,000.00 was rejected for many reasons, and sadly I can’t find too much fault with the Workers’ Compensation Judge or the Workers’ Compensation Appeals Board.

It appears the issue of credit for TD was not raised at the Mandatory Settlement Conference or at Trial, nor did the defendant seek to establish some sort of record as to when the money was “worked for.”

If your humble author were told, during a deposition or otherwise, that an applicant had found a quarter while on TD, follow-up questions would have issued post-haste as to where, when, and why, if the applicant is healthy enough to go around finding quarters, he couldn’t be back to work and off TD.

That being said, should it matter?  If applicant can make referrals from a surgery recovery room, should it matter that he may have physically made the referral before?  Furthermore, since the world of California Workers’ Compensation is so fond of presumptions and burden shifting, shouldn’t proof that money was earned, or at least collected, during a period of TD shift the burden to the applicant to prove when and how he earned it?  After all, the burden is infinitely lighter on an employee to prove when he was paid and for what than for a defendant to prove the same.

In any case, no profit comes from wringing my poor-lawyer’s hands about such situations.  But there is profit in all of us seeing such a thing coming.

A recent writ denied case addressed an issue near and dear to my heart – the 2-year limit of temporary disability payments under Labor Code section 4656(c)(1).  As you might recall, California recently dodged a major bullet with proposed (now vetoed) Assembly Bill 947 which would have extended temporary disability to 240 week (up from our current 104).

The main issue here was whether the payment of lost wages for the time taken to attend a Panel Qualified Medical Evaluation starts the clock on 104 weeks of temporary disability.  The answer, I am sorry to report, is no.

The case is City and County of San Francisco v. Workers’ Compensation Appeals Board.  Maria Miller, the applicant, allegedly sustained a cumulative trauma to her neck and shoulders.  On November 18, 2008, applicant attended a PQME evaluation, and defendant sent her a check for one day of lost wages.

Later she was found to be temporarily disabled and defendant commenced payments on December 18, 2009.  Later still, following surgery, applicant was temporarily disabled again, but defendant raised section 4656, saying the obligation to pay temporary disability ended on November 18, 2010.

The Workers’ Compensation Judge found that the day of lost wages for attending an evaluation does not count as temporary disability benefits, and the TD benefits actually commenced in December of 2009.

Defendant filed a petition for reconsideration, and the Workers’ Compensation Appeals Board adopted and incorporated the WCJ’s report, including the citation to the case of Caldwell v. Workers’ Compensation Appeals Board, holding that the required day’s wages and travel expenses paid to the applicant for attending an evaluation are meant to be in addition to all other benefits, and therefore § 4656(c)(1) is not triggered.

The Court of Appeal denied defendant’s petition for a writ of review.

The California Workers’ Compensation Institute has released the results of a data collection study showing an increase in the average temporary disability period for injured California workers.

The study can be viewed here.

The results show that temporary disability claims for injuries occurring in 2009 have reached pre-SB-899 levels.  12 months after the injury date, 2009 injuries average $6,050 paid, while 12 months after 2004 injuries the average paid in temporary disability was $6,071.

The report shows that this increase is part of an upward trend.  If you’re on the applicant’s side of the industry, it appears that a trend truly is your friend.

Some of us might think that the trend should level out after 24 months of temporary disability.  But with AB 947, as discussed in this post, pushing ahead, we can soon expect statistics for 240 weeks of temporary disability, rather than a maximum of 104.

An interesting subject for study might be the treatment costs associated with temporary disability periods.  Such a figure would more completely show the true cost to employers and insurers.

Some news that’s been traveling around the California Workers’ Compensation blogosphere has found its way to this site.  The state average weekly wage (SAWW) has increased, and so shall the minimum and maximum temporary disability payments for insurance companies and self-insured employers.

Under Labor Code § 4453(a)(10), “[c]ommencing on January 1, 2007, and each January 1 thereafter, the limits specified in this paragraph shall be increased by an amount equal to the percentage increase in the state average weekly wage as compared to the prior year.”

As per the code section, the test is the weekly wage as reported by the United States Department of Labor for the 12 months ending on March 31^st.

So for 2012, the fate of temporary disability payments was sealed on March 31^st, 2011.  According to the U.S. Department of Labor (scroll down to see California), the average weekly wages are now $1,003.55.

As per Labor Code § 4659(c), this increase will also affect the pensions of those employees injured on or after January 1, 2003.

On the one hand, this means more payouts, higher insurance premiums, and a slightly larger incentive to file a claim.

On the other, it provides more of an incentive to fight bad or fraudulent claims.  Remember, even a $50 increase in temporary disability, over two years [see Labor Code § 4656(c)(2), totals $5,200.00.  If the claim is fraudulent, that’s money that no defendant should have to pay.

Slight increases in temporary disability, just like any other indemnity, add up and quickly become cheaper to fight than to pay.  After all, when a self-insured employer or an insurer gets a reputation for big settlements, the claims increase to match.  Just a thought.