WCDefenseCA

A recent writ denied case had the unfortunate effect of rebutting the AMA guides to inflate applicant’s permanent disability from an unadjusted whole person impairment of 5% to an unadjusted WPI of 19%.

In the case of Riverford Apartments v. Workers’ Compensation Appeals Board (Jose Oliviera), applicant maintenance worker claimed a June 8, 2007 injury to his left shoulder.  The injury was accepted and the parties ended up with a Panel Qualified Medical Evaluator.

The PQME relied on Almaraz/Guzman II and applied the hernia chapter to rate applicant’s left shoulder injury.  The hernia impairments, reasoned the PQME, better reflect applicant’s work restrictions than the shoulder chapter.

I take this opportunity to direct your attention to the following side note.  I don’t know what arguments were made at trial or through the appeals process, but Almaraz/Guzman II is outdated.  Guzman III is the most recent decision on this point (and the final decision, at least for now).

The language in Almaraz/Guzman III calls for a specific description by the evaluating physician as to what makes this case complex or extraordinary.  In the absence of such a record, the AMA Guides are to be applied as written.  [For more on this topic, please review my earlier posts part i and part ii]

With that, back to the story…  The Workers’ Compensation Judge relied on Almaraz/Guzman II, and thereby adopted the PQME’s opinions to give a final award of 39% permanent disability.

Picture this – a case that begins as a typical shoulder injury with a 5% ratable impairment gets inflated into 39% permanent disability award.

The Workers’ Compensation Appeals Board granted reconsideration, only to adopt and incorporate the WCJ’s opinion.  The Court of Appeal denied defendant’s petition for a writ of review.

From my reading of this case, it appears the PQME (and, by extension, the WCJ) have a problem with the AMA Guides as written.   There is no indication this case had anything about it that was unusual or never contemplated by the authors of the Guides.  The PQME thought the [higher rating] charts under the hernia section better described the work restrictions, rather than the shoulder chapter’s description of range of motion, etc.

This case should have gone the other way.  In fact, with the close of discovery, the PQME should not have been given a chance to develop the record as to why he felt the AMA guides were rebutted.  The Guides should have remained whole and applicant should have been adjusting his 5% WPI.

Instead, well, we wake up to find ourselves in California’s Workers’ Compensation system, as opposed to Greg Grinberg’s (oddly work-related) fantasy land.

Last week I told you about a case that contrasted two California Workers’ Compensation defenses:  horseplay and initial physical aggressor.  Well, that provides me an opportunity to Segway into another recent writ denied case where the horseplay defense also failed (erroneously, I believe).

Applicant was a security supervisor at University of Southern California, and, as part of his duties, rode around on a Segway.  In case you didn’t know, Segways are like wheel chairs for those who are physically capable of walking and standing, but are unbelievably lazy.

Witnesses testified that applicant circled a co-worker several times on the Segway (the spoken-of horseplay) before leaving the parking lot, only to lose control of the Segway and fall, injuring his head, neurological system, ears, legs, knees and psyche.

The Workers’ Compensation Judge rejected the horseplay defense, reasoning that the horseplay was over by the time the injury had occurred — applicant was no longer circling his co-worker when this had happened.  Neither the Workers’ Compensation Appeals Board nor the Court of Appeal were willing to step in to correct the WCJ’s erroneous finding (as your humble author submits it should be called).

But it is possible and probable that the fall and the resulting injuries were in fact caused by the residual effects of the horseplay.  Circling around and then driving off on what is clearly not a stable device seems like a guarantee for disaster.

And so dear readers, be warned that the shield of horseplay is more of a buckler, one which brings to bear its utility only with a narrow scope and precise application, rather than general usage.

There you sit at your office desk, opening your mail, when you see it – a bulky envelope with an applicant’s attorney’s return address.  Without opening it, you know what it is – the applicant is filing for reconsideration of some minor procedural order that the Workers’ Compensation Judge issued but 19 days ago.

You know it is not a final order and, at most, it should be a removal action.  But now the case that was going along so well has this matter to deal with.  Picking up the phone, you call your workers’ compensation defense attorney, and decide you want to try something new to get rid of this fast.

Does your attorney have some new tactic up his sleeve to help this petition die on the vine?

Here is my idea: in the case of Sergio Corrales v. Avis Rent-A-Car, the applicant’s attorney filed for both reconsideration or, in the alternative, removal of a WCJ’s order setting the underlying cases for trial.  The Workers’ Compensation Appeals Board dismissed the petition for reconsideration as improper, because the order setting the cases for trial was not a final order.  It then denied the petition for removal on other grounds.

How is this relevant?  The WCAB specifically admonished applicant’s attorney that “the filing of a petition for reconsideration to challenge the WCJ’s order setting this case for trial could be viewed as an action or conduct that is frivolous or solely intended to cause delay and subject to sanctions…”

In the case of Antonio Morales v. WCAB (2011) 76 Cal. Comp. Cases 841, the WCJ specifically recommended that sanctions be imposed for filing for recon from an order for a replacement panel, but the WCAB did not address the issue, either as a silent rejection or as an unintentional oversight.

Corrales was filed in June of 2011, and is a slightly more recent opinion than Morales.

Now comes the maneuver:

Upon receipt of the petition for reconsideration, send a letter to applicant’s attorney with a copy of the Corrales panel opinion [please e-mail me if you would like a copy of the panel decision: gregory.grinberg@htklaw.com], and a copy of a panel, en banc, or higher court opinion finding a certain act appropriate for removal but not appropriate for reconsideration.

Don’t threaten – just point out that a petition for reconsideration is not appropriate in this case and it should be withdrawn.

If the applicant’s attorney does not withdraw the petition for removal before you file your answer, seek sanctions.  If this crazy maneuver works, the applicant’s attorney will either withdraw the frivolous and inappropriate petition for reconsideration, or (hopefully) the cost of fighting the petition will be out of applicant’s attorney’s pocket.

Granted, this is by no means an established tactic – but if you’re looking to try a new maneuver, this might just work.  What’s more, there will be close cases, where there is no established precedent for whether the proper course of action is reconsideration or removal.  But, in most cases, this might just be the trick to cut delay and litigation costs.

Below are some good examples of removal and reconsideration cases.

Proper actions for removal:

1. Finding of fact as to which of two QME panels was properly issued. Tsegay Messele v. Pitco Foods, Inc. (2011) 76 Cal. Comp. Cases 956 (en banc).
2. WCJ’s order to take matter off calendar until applicant was re-evaluated by AME.  Gregory Lapold v. WCAB, Lloyds Transmission (2011) 76 Cal. Comp. Cases 1030.
3. Judge’s denied of a petition to have three cases consolidated into one.  PBMS, Inc. v. WCAB (2010) 76 Cal. Comp. Cases 1015.
4. WCJ’s order to the Medical Unit to issue a new panel following a finding of ex-parte communication.  Antonio Morales v. WCAB (2011) 76 Cal. Comp. Cases 841.
5. Judge’s order regarding which of defendant’s representatives could attend applicant’s deposition.  Amador Padilla v. WCAB (2011) 76 Cal. Comp. Cases 191.
6. Judge’s order denying defendant’s petition to disqualify applicant’s attorney. Advantage Workers’ Compensation Insurance Company v. WCAB (2010) 75 Cal. Comp. Cases 1415.
7. Judge’s issuance of an order alleging that Defendant’s attorney and its adjuster were in contempt of court.  All Tune & Lube v. WCAB (2010) 75 Cal. Comp. Cases 503.
8. WCJ’s order for additional discovery following trial to “develop the record.”  Bates v. Valley Vintners Wine Company (2011).
9. An order granting a party motion for change of venue.  French v. Warner Brothers (2011) 13 WCAB Rptr. 13,216.
10. WCJ’s order denying defendant’s petition to dismiss.  Barbara Guthrie v. Weyerhaeuser Company (2004).

Yesterday we covered the appeal of a final order through the procedure of a Petition for Reconsideration.  Today’s topic is the alternative, a Petition for Removal.

A removal action, much like a recon, must be filed within 20 days of service of the aggrieving order.  [Don’t forget the additional days for mailing!] However, the standard to proceed on removal is very different.

The appealing party must show (1) the WCJ’s order will result in prejudice; (2) the WCJ’s order will result in irreparable harm; and (3) reconsideration after a final order is made does not provide an adequate remedy. (8 CCR § 10843.)

So if an applicant’s attorney or a lien claimant files a petition for removal, there’s really no frustration involved for the defense – either there is a valid point being made, in which case defeating the petition is just part of the job, or there isn’t, in which case the high barrier set by § 10843 should do most of the work.

But if an applicant’s attorney files a petition for reconsideration, or, as appears to be the common practice, a “petition for reconsideration, or, in the alternative, petition for removal,” frustration is warranted.

Now, the case is ground to a halt, as per LC § 5910 and CCR § 10859, and the defendant has to watch the good Panel Qualified Medical Evaluator fill up his appointment book, the best witnesses move away or get forgetful, and medical bills grow and grow like the pile of abandoned food in the back of the office break-room fridge.

When the applicant’s attorney files a petition for reconsideration, alone or with the petition for removal, either because he or she didn’t bother to read the file and do the research, or with the sole purpose of delaying the proceedings, what can the defense do?

Well, the common response is to fight the petitions with an answer or two, and hope the WCAB denies the petitions.

But if you’re brave and would like to take a gamble, I’ve got a “crackpot” maneuver for you to try that I will eagerly reveal in tomorrow’s post.

California’s Workers’ Compensation system is one with a lot of gray areas and vague notions.  Rules of evidence and civil procedure apply, but not really.  Regulations govern the proper issuance of evaluator panels, but the Medical Unit does not have to follow them.  Defendants are entitled to due process, but only sometimes.  (For some of the harshest language on this point, I direct you to the case of Fidelity and Casualty Company of New York v. Workers’ Compensation Appeals Board [“If this case is a measure, the board — despite its sheaf of rules of practice and procedure — operates in an essentially structureless environment where the vigilance of the petitioning and responding parties provides the only insurance against the arbitrary and capricious denial of due process.”]).

Well, one truth that we can all agree on, one that is constant and unyielding, is this:  sometimes the Workers’ Compensation Judges get it wrong.  And when they do, it is up to the zealous among us to make sure these errors do not go unanswered – we must appeal!

The appeal takes the form of a Petition for Reconsideration.  An alternative is a Petition for Removal.  The former is from final orders, while the latter is from orders not considered final, but resulting in prejudice and irreparable harm.  (8 Cal. Code Regs. § 10843.)

Removal and Reconsideration are two very different procedures, but their distinction is often lost on attorneys who file both in order to cover their proverbial bases.

A petition for reconsideration is filed to seek the Workers’ Compensation Appeals Board’s intervention from a final order of a WCJ.  (Labor Code § 5900.)  A final order is one which determines any substantive right or liability of those involved in the case.  (Maranian v. Workers’ Comp. Appeals Bd..) Under Labor Code section 5910, the aggrieved party has 20 days from the service of the order to file its petition for one or more of the following reasons:

(a) The WCJ or the appeals board acted without or in excess of its, his or her powers;

(b) The order, decision, or award was procured by fraud;

(c) The evidence does not justify the findings of fact;

(d) Newly discovered information not previously available;

(e) The findings do not support the order, decision, or award.

(Labor Code § 5903)

One of the immediate effects of a petition for reconsideration (as opposed to a petition for removal) is that the filing of it suspends the order of the WCJ for 10 days.  (Labor Code § 5910.)  Furthermore, the WCJ is stripped of all jurisdiction 15 days after filing.  (8 CCR § 10859.)

This means that when a WCJ issues a non-final order, the case should proceed.  But once a petition for reconsideration is filed, under the Labor Code and the Code of Regulations, the order is suspended and the jurisdiction is taken away from the WCJ.

In other words, while an attorney is just “covering his bases,” the case grinds to a halt and a good amount of legal resources go into dealing with his or her petition.

But what about the process for a Petition for Removal?  I’m glad you asked: come back tomorrow morning for Part 2 of 3!

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 life-time claimants.

Most of us have at least one of these applicants in our past.  You know the ones – no matter how slight or serious their injuries, they refuse to move on with their lives.  Often enough, their own attorneys have had enough of them and they find themselves living out that old proverb about having oneself for a client.

All of a sudden, everything becomes “sanctionable” conduct, Defense lawyers are reported to the bar by the applicants for anything and everything.  The Workers’ Compensation Judge has to hear about the laundry list of abuses practiced by the defense.

Before you know it, the applicant starts relying on such relevant authority as Federal Rules of Civil Procedure, the Constitution of the State of Idaho, and probably some United States Resolution regarding water rights.

Meanwhile, the defense attorneys are racking up a bill reading and responding to every pointless 30 page brief the applicant files.  Soon you start suspecting the method to the madness is the expense inflicted upon the defendant in defending its position.

Well, one remedy the defense has at its disposal is that of California Code of Regulations section 10782, which allows a self-represented applicant to be declared a “vexatious litigant.”  If successful, the applicant can only file documents which the presiding judge has approved, filtering out a lot of the meaningless gibberish the defense would otherwise have to waste time on.

This is a very difficult maneuver to pull off and the standard is fairly high.  But, in a recent writ denied case, defendant was successful in doing just that!

Sylvia Santos filed four applications for three specific injuries and one (3-day) cumulative trauma.  Unrepresented she fought the defense tooth and nail on routine issues like release of medical records.

Defendant’s investigation revealed that Santos had filed an application for the same body parts against almost every employer she has had.

In response to defendant’s petition to have applicant declared a vexatious litigant, applicant filed a petition to have defendant declared a vexatious litigant, too!

The insanity continued, with applicant accusing the WCJ of bias against the applicant, and claiming the vexatious litigant regulation is unconstitutional.

The WCJ found applicant a vexation litigant, and the Workers’ Compensation Appeals board denied applicant’s petition for reconsideration.

In denying applicant’s petition for writ of review, the Court of Appeal reasoned that:

“a review of this record shows that Santo’s multiple filings do not serve the interest of her moving her cases forward toward decision on the essential issues, but, instead, a great deal of court time has been required to understand, organize and respond to the pleadings and other documents.  The designation of vexatious litigant will not prevent Santos from proceeding with her claims or from having the opportunity to be heard, but will allow the [presiding judge] to examine her conditionally filed documents to determine which documents may be appropriately organized and filed in order to mover [sic] her case to adjudication.”

If you’re dealing with one of these life-time cases, perhaps § 10782 is something to look into as a possible strategy.  If you have any luck with it, let me know – your humble editor would love to hear the story.

Earlier, I blogged on the flurry of law-signing activity that happened at the Governor’s mansion.  I had intended to blog on most of the legislation, but the good folks at the California Workers’ Compensation Institute beat me to the punch.

CWCI has prepared a list of the workers’ compensation legislation signed into law recently.

A couple to keep an eye on in particular are Assembly Bill 335 which adjusts the language of benefits notices and Assembly Bill 1168, which would establish a fee schedule for vocational rehabilitation experts.

Honestly, even as a notorious cynic, I’m impressed – Sacramento could have done a lot worse.

What happens when a man is murdered on the job, but no one (except, perhaps, the at-large murderer) knows the motive for the slaying?  Enrique Vicente Rincon, deceased, was working in a liquor store when a hooded man walked in and shot him.  The gunshot wound resulted in Mr. Rincon’s death and the hooded gunman escaped.

The widow filed a claim for death benefits (Rincon v. South Bay Liquor & Market), and the defendant elected to put the issue of Arising Out of Employment/Course of Employment on trial.

The defense conceded COE, recognizing that the death causing injury occurred while Mr. Rincon was on the job.  But what was the motive for the murder?  If it was a personal vendetta against Mr. Vincent, then it can hardly be AOE – an ex-girlfriend, a driver cut off the day before, an angry neighbor in the final stage of the Hatfield – McCoy feud.  None of these have to do with the job, and should not be compensable (also known as the “personal risk” doctrine).

The investigating police officers could only speculate – it could have been a gang initiation, or a robbery in which the robber lost his nerve (explained by the fact that no money was taken during the crime).  There was really no way to know, unless the murderer was caught, or at least identified.

The Workers’ Compensation Judge applied the “mysterious circumstances” doctrine, holding that, because the motive for the murder was unknown, the death must be presumed to satisfy both the AOE and the COE requirements for finding the injury compensable.

The Workers Compensation Appeals Board adopted and incorporated the WCJ’s opinion.

Sometimes, nothing can be done – the facts aren’t there or there is no way to get them.  But in cases like these, the employer needs to do an even better job investigating the case than the police.

Who had a motive to kill the employee?  Facebook, e-mails, cell phone logs (and texts) should all be subpoenaed.  The only real restraint on the thoroughness of the investigation should be the cost (with no medical treatment and statutory caps on recovery, the limits are easy to see).

Mr. Rincon is the tragic victim of a terrible murder.  Unfortunately, the employer was victimized by California’s Workers’ Compensation system as well.

It is no secret that I’m a fan of Medical Provider Networks.  A useful tool in California’s Workers’ Compensation defense practice, MPNs save the employer money in medical treatment, filter out junk-science reports, and protect the injured worker from being tricked into adopting a cash-cow posture for less-than-ethical medical practitioners.

Although an employer/insurer can set up an MPN fairly easily, and impose upon the injured worker the duty of using it (if the employee expects the employer to pay for the treatment), there are a few small cracks in the wall.

One such crack can be found in Labor Code § 4616.2, subsection (d)(3)(B).  This exception to the general rules of MPNs allows the current non-MPN treating physician to continue treating the employee for up to 12 months for a “serious chronic condition.”  The determination is initially made by the employer/insurer, and the employee can dispute the determination, first by requesting a report from the treating physician and then by getting a panel QME.

According to section 9767.9(e) of the California Code of Regulations, a chronic condition is one “that persists without full cure or worsens over 90 days and requires ongoing treatment to maintain remission or prevent deterioration.”

In other words, the employer must approve the continuation of treatment for the serious chronic condition, for up to one year, starting on the day that notification is received by the employee.

[Note, as per § 9767.9(f), notice must be sent to the employee and the employee’s treating physician, in English and Spanish, that the employer/insurer has determined that there is not a serious chronic condition and that the employee will be transferred into the MPN.  The regulation also provides that “to the maximum extent possible” layperson’s terms must be used in this notice.]

In other words, dear readers, if you are thinking of adopting an MPN, this is one of the delay tricks doctors and employees will use to stay out of it as long as possible.  This provides them with an additional year to rack up the bill on treatment and produce one report after another.  [Note – under subsection (h), the employer, insurer and employee all have the right to have this matter resolved by going to a panel qualified medical evaluator.]

By no means does this take away from the great value of MPNs – but it is something to be aware of before refusing to pay for an extra year of non-MPN treatment.