Archive for August, 2011

On Wanting More Than Golden Eggs

August 17th, 2011 No comments

National Workers’ Compensation costs appear to have declined in 2009 by 4.4 percent, according to a report released by the National Academy of Social Insurance.  The report, upon closer inspection, provides a more accurate headline: the decrease in workers’ compensation costs is due not to better laws, fewer injuries, or zealous advocacy.  The decline is due to a drop in covered workers – less jobs, less employees, and less expense for workers’ compensation coverage.

However, as discussed in an earlier post, California still experiences increased expenses for the total costs for the industry.

Whatever the trend elsewhere in the Union, the employers of the Golden State are finding themselves to have laid too many golden eggs, and are now facing the knife.

Jan Norman of the Orange County Register tells us that several companies are leaving California over various costs, among them workers’ compensation.  Arizona, for example, boasted $0.66 dollars in benefits paid for every $100 in covered wages in 2009.  California demanded $1.26 for the same coverage.

In other words, bringing justice and equity back to workers’ compensation continues to be a tough road to hoe – the costs per worker continue to increase.  Furthermore, as more companies vote with their feet and take their votes, their litigation war chests, and their public influence across state borders, those left to hold the line become more spread out.

Unless California, her leaders and officers, come to their senses, before too long there will be no injured workers because there will be no jobs.

I hate to preach doom and gloom, but none of us should expect to take a victory lap any time soon, especially while other states gorge themselves on California Geese.

Categories: News Tags:

Crazy for Drycleaning

August 16th, 2011 No comments

I recently started using a dry-cleaner near my office for my shirts.  Before, I used to wash and iron them at home, but the service is ridiculously affordable and convenient.  Little did I know, before reading about the story of Hilda Bonilla, that the work can be very dangerous.

Hilda, a dry cleaner, was injured when an ironing press came down on her hand at work.  The burn mark quickly appeared, followed by a claim for injury to her skin, psyche, nervous system, internal organs, and sleep.

The skinny: for a psyche claim for an employee working the job less than six months, the injury must be caused by an event that is both sudden AND extraordinary – the type of injury that regularly happens at this job, no matter how suddenly, does not qualify.

The Workers’ Compensation Judge found all injuries, the psyche as well, to be compensable.  Defendant petition for reconsideration, arguing that Labor Code § 3208.3(d) barred Hilda’s claim.

§ 3208.3 governs psyche claims, and specifically bars all claims of psychiatric injury for those employees with less than six months (total, not necessarily continuous) time on the job, unless the injury is caused by a sudden and extraordinary event.

Does the ironing press you were using a second ago coming down on your hand count as “a sudden and extraordinary event”?  If it does, is there any specific injury (rather than cumulative trauma) that isn’t a sudden and extraordinary event?

The record reflected ample witness testimony that burns were common, and that employees had to be careful lest they suffer burns from the equipment.

The WCAB granted reconsideration, reasoning that the event may have been horrible and happened suddenly, but the phenomenon of being burned while working at a dry cleaner was not extraordinary, as required by the statute.  By contrast, a gas explosion or workplace violence would qualify as such.

Hilda petitioned for a writ of review.  The result?  WRIT DENIED!  (Bonilla v. Workers’ Compensation Appeals Board (Cameo Cleaners))

Categories: 3208.3, Defenses Tags:

Of Broken Hearts and Broken Statutory Interpretation

August 15th, 2011 No comments

A recent Workers’ Compensation Appeals Board opinion, Karges v. Siskiyou County Sheriff, touched on the issue of the law enforcement officer’s presumption regarding heart disease.

The applicant, who worked as a deputy sheriff for over seven years, was diagnosed with atrial fibrillation following a life insurance examination.

Labor Code § 3212.5 allows for law enforcement officers’ heart trouble or pneumonia to be regarded as an industrial injury.  The section provides a presumption of industrial causation, so long as the employee worked for more than five years before the presumption arises.

At trial, the Workers’ Compensation Judge found no injury to the circulatory system, but instead found an injury to the heart.  Defendant petitioned for reconsideration of this finding, arguing the heart disease was congenital.

The WCJ in this case found the issue to turn on the definition of the word “disease,” as found in § 3212.5 (“[s]uch heart trouble … shall in no case be attributed to any disease existing prior to … manifestation.”  Ultimately, the WCJ reasoned that the Labor Code intended to cover, as a “disease,” those conditions with which the applicant was born.

Naturally, your humble author disagrees with this reasoning – Labor Code § 4663 clearly states that “[a]pportionment of permanent disability shall be based on causation.”  In this case, it would appear that the two code sections, to some extent, conflict.  The natural course of action is to interpret them in such a way as to NOT conflict.  This would necessitate interpreting “disease” as to not including any congenital conditions.

Furthermore, Labor Code § 3212.5 was last amended in 1976, whereas Labor Code § 4663 was last amended in 2006.  If, as the WCJ states, the judges are required to apply the “usual rules of statutory interpretation,” then the more recent action of the legislature is the best expression of legislative intent.  Therefore, § 4663, in the event of any conflict, should supersede § 3212.5.

It does not appear that this case is to be appealed, but hopefully the next time this issue comes up the answer will be more favorable to the defense community.

Categories: 3212.5, 4663, Apportionment Tags:

Sipping COLA

August 12th, 2011 No comments

Employers rejoice!  The California Supreme Court has properly interpreted the California Labor Code (§ 4659) to hold that cost of living adjustments are to begin on January 1st following the year in which an applicant becomes permanent and stationary in cases of permanent total disability, or when permanent disability benefits end and life pension payments begin.  (See  Baker v. Workers’ Compensation Appeals Board.)

The Skinny:  COLA is calculated and adjustments are to be made:

* At the time the applicant is P&S (when there is an award of 100% permanent disability);

* At the time the PD indemnity is exhausted and the life pension begins (if there is to be a life pension.)

Labor Code § 4659 is fairly clear: injuries after January 1, 2003 resulting in total permanent disability or a life pension will have the benefits increased based on the state average weekly wage (essentially to cover the cost of inflation).

Applicants’ attorneys have argued that COLA increases begin January 1, 2003, even for injuries occurring as late as 2011.  California Workers’ Compensation is racked with disappointments about the interpretation of the law, but this is not one of them.  The Supreme Court got this one completely right – COLA increases are determined by the PTD P&S date (or the start of the life pension), and not in 2003.

In rendering this decision, the Supreme Court overturned the California Court of Appeals, and put an end to years of waiting for the determination of this issue.

This morning, adjusters and defense attorneys around the state are walking with their heads held high, bearing a faint smile on their lips as many WCJs and applicants attorneys glare on and simmer in their defeat.

Categories: COLA Tags:

Proper Grounds for Changing Venue

August 11th, 2011 No comments

In California Workers’ Compensation, what constitutes good cause to grant applicant’s change of venue motion?  This is a question that was touched upon in the recent panel decision French v. Warner Brothers (2011) 13 WCAB Rptr. 13,216.  However, the answer one can walk away with is not what is, but rather what is not, good cause.

The skinny:  The convenience of applicant’s attorney is not sufficient good cause to change the venue of a case.

Here are the essential facts:  Applicant filed an application for adjudication of claim, and later an amended application, and in both cases consented to venue at Marina del Rey.  Applicant then switched his attorney to one with an office in Long Beach, and moved to South Carolina.  His attorney filed a motion to change the venue to Long Beach.

Defendant objected, asserting that the place of injury and the place of business for its witnesses were both in Burbank.  As you can imagine, the Workers’ Compensation Judge granted applicant’s motion.  (Somehow, the convenience of defendant’s witnesses, or even defendant’s own attorneys, did not seem to matter to the WCJ).

After the matter was set for a Mandatory Settlement Conference, defendant filed a petition for reconsideration, arguing that no order changing venue had ever been received and that there are no valid grounds to change the venue.

As a side-note, because defendant’s grievance was an interim order, the order changing venue, the proper course of action was a petition for a removal, not a petition for reconsideration.

The Workers’ Compensation Appeals Board, denied the petition for reconsideration, granted the petition for removal, and rescinded the order changing venue.

In other words, the convenience of a new applicant’s attorney is not proper grounds for changing venue.

The WCAB also noted that the WCJ did not make any findings as to the good cause for the change of venue, and that the WCJ erroneously placed the burden of showing good cause not to change the venue on defendant.

Categories: Venue Tags:

A Civil Case Defense to 132a?

August 10th, 2011 No comments

Can an illegal alien, who obtained employment through fraud, prevail on a California Workers’ Compensation discrimination claim?  That’s the potentially tangential issue in a recent case, Salas v. Sierra Chemical Co.

California Labor Code § 132a prohibits discriminating against an employee for filing a workers’ compensation claim, or for participating in the workers’ compensation process, such as being a witness.  Liability for a Labor Code § 132a claim is not insurable.

In Salas, the Third Appellate District of the California Court of Appeals affirmed a trial judge’s granting of a motion for summary judgment, where the injured worker had acquired employment by using someone else’s social security number.

Salas was in a seasonal position and was laid off and re-hired on a regular basis.  At the end of one of such work periods, Salas injured his back (for the second time), and filed a workers’ compensation claim.

After the general workforce was recalled, Salas was told he could only have his old job back if he had no work restrictions.  Salas filed a civil lawsuit, alleging, among other claims, that Sierra “denied him employment to punish him for filing a claim for workers’ compensation benefits, and to intimidate and deter him and others from bringing such a claim.”

Interestingly enough, an EAMS search shows that the case settled by compromise and release in 2008, but does not reflect a Labor Code § 132a claim.

The appellate district affirmed the granting of defendant’s motion for summary judgment.  Responding favorably to the assertion that Sierra would never have hired Salas had it known about his fraudulent application, the trial judge and the appellate district found for defendant.

One caveat to this is that the facts in this case suggested that Sierra did not know that Salas was using another person’s social security number.  Had there been evidence of Sierra’s knowledge of the same, the case would have probably gone differently.

Salas still has time to appeal, but for now, this case presents an interesting opportunity to test a defense to Labor Code § 132a claims.  How the typical Workers’ Compensation Judge, and, more importantly, the typical Workers’ Compensation Appeals Board panel, will respond to this argument, will only be revealed by time.

Categories: 132a Tags:

Yet Another Way to Get a Second Panel

August 9th, 2011 1 comment

It’s hard to be a California Workers’ Compensation defense attorney and not become a little cynical.  After all, the California legislature dangles a carrot in front of you, and just as you’re about to bite, the Workers’ Compensation Judge, the Workers’ Compensation Appeals Board, or even the higher-ups in the judicial branch yank it away.

At the moment, I’m brooding over the case of Denys-Peck v. Sonora Surgery Center.  There, applicant braved the workers’ compensation system alone, and ended up with a panel Qualified Medical Evaluator finding her various body parts either non-industrial or without a ratable impairment.

Applicant then called in the cavalry, and her attorney demanded a new panel.  Now, if you’re a regular reader of my humble post, you know that Labor Code § 4062.1 specifically prohibits an additional evaluation in cases where a formerly unrepresented applicant becomes represented after already having an evaluation.  Can’t you just taste that juicy carrot that the legislature is dangling?

Here is where the carrot gets yanked away.  Applicant and her attorney claimed cumulative trauma to the same body parts (and one more, the knees).  Then they demanded a new panel for the cumulative trauma.

The WCJ ruled and the WCAB affirmed that the applicant must return to the first QME for the specific injury but can have a new panel for the CT.

With the same body parts injured, the applicant effectively gets a second panel, now that she is represented.  Hopefully, an appeal will see this position adjusted – the legislature clearly expressed its hostility to QME shopping and repeat attempts at an evaluation.  Simply pleading the same body parts over a cumulative period to get a new QME flies in the face of the law.

For now, the best the defendant can do in this case is to minimize the damage dealt by the second panel.  Other than that, just sing the carrot song to make it all better.

Categories: QMEs, Tactics and Strategy Tags:

Workers’ Compensation Pilot Program

August 8th, 2011 No comments

An interesting pilot program is coming into formation for Butte County, California.  This pilot program will require those seeking to perform contract work with the county to prove they have workers’ compensation insurance for their workers.  For now, if approved, the program will apply to roofers and swimming pool builders.

There are presently criminal and civil penalties for not having workers’ compensation insurance or obtaining inadequate workers’ compensation insurance by fraud.  (Picture the agent selling insurance in the office of the employer, being told that there are a total of four employees working for the company when he can clearly see more than that working in the warehouse.)

I, for one, am always in favor of making life easier for businesses and employers.  Enough of California’s companies are being poached by the likes of Arizona, lured away with promises of New York Iced Tea and some of the lowest Workers’ Compensation costs in the country.

But while I am for making the laws easier to understand and cheaper to comply with, I can not abide the fraud some employers engage in to avoid paying Workers’ Compensation costs.  This gives them an unfair advantage when competing with employers who bite the proverbial bullet and follow the law.

Hopefully, this program will be adopted in more counties throughout the state and for more than just roofing and swimming pool work.

Categories: Fraud, News Tags:

New Proposed Regulations

August 5th, 2011 No comments

The Department of Workers Compensation has announced that it is proposing new regulations, mostly having to do with lien claimants.  You can see the notice and read the new regulations here.

The proposed changes include a process for dismissing liens that have been inactive for the last year, similar to the dismissal of cases for lack of prosecution.

The new proposed regulations also limit the filing of liens to new or opening liens, and lifts the requirement to file (but not to serve) the itemized list that make up the basis for the lien.

Also, it appears that defendants will have grounds to argue that an improperly filed lien is not filed and not binding, even if it is served.   The new proposed regulations even seem to allow for sanctions and attorney’s fees for violations of the new procedures.  (The threat of sanctions is a useful tool in curbing the advances of lien claimants.)

I, for one, am eager to see how much of this survives and becomes the law of the land.  It looks like, before too long, defendants might have a new set of maneuvers to ward off the Lien Pirates!  Even for a cynical workers’ compensation defense attorney, hope springs eternal.

Categories: Legislation, Liens, News, Sanctions Tags:

What Constitutes a Request for Medical Treatment?

August 4th, 2011 2 comments

Under Labor Code § 4600, the insurer or self-insured employer must provide medical treatment “reasonably required to cure or relieve the injured worker from the effects of his or her injury” or else face the risk of having to reimburse the employee for his or her visits to Dr. McOver-Prescribe.

But at what point do the adjuster’s duties of approving the treatment or undertaking the expense of Utilization Review kick in?  For example, if a chiropractor calls the adjuster and says “Jim needs 100 more treatments of Placebo-tox” or “your employee Kathy would really benefit from my patented Medo-Widget,” must the adjuster act?

Or what if you open your mail and there is a note from a treating physician, simply saying “please authorize treatment X”?

Labor Code § 4603.2(a) states that the employee’s treating physician “shall submit a report to the employer within five working days of the initial examination and shall submit periodic reports at intervals that may be prescribed by rules and regulations adopted by the administrative director.”

So what regulations have been adopted by the administrative director?  Take a look at 8 CCR § 9792.6 (o).  This sets out the requirements for a request for treatment.  If the request is made orally, such as in a telephone call, it must be followed by a written request within seventy-two hours.

The written requests (both as originals and as the follow-up) must be on forms PR-1 or PR-2.  Otherwise, the request must be in a narrative, containing the same information as a PR-2, and “the document shall be clearly marked at the top that it is a request for authorization.”

In other words, if the proper procedure is not followed, no soup for you!