Archive for February, 2012

EAMS to Allow e-Filing and Paper Filing

February 15th, 2012 No comments

Are you an EAMS e-filer?  Why not?  If you’re not an e-filer, you have to file everything on paper, let the Board choose a hearing date for you, and have very limited access to those documents already filed.  Until recently, though, you had one decisive advantage even if the system failed- you could still file by paper.  EAMS was an all-or-nothing system in which the entire firm had to e-file or paper file, but not both.

Well, it appears the Electronic Adjudication Management System is moving to a new stage.  Workers’ compensation attorneys, both defense and applicant, will be allowed to both e-file and paper file, as they like.  In other words, you can sign up to be an e-filer, reap the benefits of online access to filed documents and choosing your own hearing date, and yet still file by paper whenever you like, at least according to this release by the DWC.

In order to become an e-filer, parties will still be required to go through the EAMS training and register.

So, have you made the switch to EAMS?  Do you wish you could switch back out?

Categories: News Tags:

A Very Special Valentine’s Day Blog Post

February 14th, 2012 4 comments

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!

Categories: Tactics and Strategy Tags:

Going and Coming Rule Fails

February 13th, 2012 1 comment

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.

Categories: Defenses, Tactics and Strategy Tags:

Immigration Status Bars Total TD Again!

February 10th, 2012 No comments

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.”

California is Hiring WCJs!

February 9th, 2012 No comments

Are you tired of the seemingly powerless life of a workers’ compensation defense attorney?  Do you grow weary of pitting workers’ compensation Judges against commissioners, and commissioners against Court of Appeal Judges in a desperate effort to secure some tiny sliver of justice for you client?  Perhaps it’s time you took up the gavel yourself and stemmed the flow of blood being drained from the veins of California’s employers.

No, I’m not suggesting we form some sort of vigilante workers’ compensation Board or somehow privatize the Workers’ Compensation Appeals Board (oh, if only!).  As a matter of fact, after discovering a surplus in the pension budget California is looking to hire some more judges.   But you better hurry – the deadline is, in a gentle nod to that secret spot in our hearts that is home to the more romantic things in life, February 14th.

The venues are San Jose, Marina Del Ray, and Long Beach.  Benefits include the use of two flat-screen monitors in every courtroom, the endless droning of lien claimants, the threat of removal or reconsideration at every step, and semi-celebrity status when you suffer occasional ridicule on this blog.

But, do not get your hopes ups – with a 1/31 post date and a 2/14 deadline, I’m guessing there are already some candidates in mind; but what does a private-sector-dweller like your speculative blogger know?

Good luck!

Categories: News, WCJs Tags:

Knowledge of WC Presumptions is not Knowledge of Industrial Causation

February 8th, 2012 No comments

Applicant fireman and fire chief filed an application in 2008 for what turned out to be a cancerous lump discovered on his neck in 2004.  The Workers’ Compensation Judge and the Workers’ Compensation Appeals Board promptly handed applicant an award.  But wait – under Labor Code section 5405(a), there is a one-year statute of limitations on filing workers’ compensation claims.

The case is Gary Scholar v. City of Chico, and the defense of statute of limitations was raised – only to be defeated by applicant’s claims of ignorance.  In the panel opinion, the majority went over applicant’s testimony, given at trial, that no one told him the lump was certainly cancer until 2008, at which time he promptly filed a workers’ compensation claim.

Now, your sarcastic and cynical blogger is sure that at least some of his wise and learned readers are wondering why the defense took it this far – this majority opinion presents the facts as a slam-dunk case for the applicant and the litigation dollars were apparently just wasted.  Well, not so much.

One of the first maxims law students learned, at least they did back in my day, is: “if you want to know what really happened, read the dissent.”  And read the dissent your diligent blogger did.

Commissioner Lowe, dissenting from the majority opinion, presented facts that may have otherwise been overlooked.  For example, at his deposition, applicant testified that after a 2004 surgery, the surgeon told applicant that the lump was positive for cancer.  The defense even took the surgeon’s deposition, at which time he testified that applicant was “definitely” aware that the lump was cancerous, and even the type of cancer, in 2004.

“Well, alright,” you may be thinking, as you sip your morning coffee and use this blog to put off work for a few minutes, “assuming he knew the lump was cancer in 2004, how was he to know that it was industrial?”  Well, applicant was a fire chief and testified that he was well aware that cancer found in firemen is generally presumed industrial.  In other words, the evidence shows that in 2004, applicant knew he had cancer and knew that the law would most likely presume that the cancer was industrial.

In all fairness, this ruling does have some reasonableness to it – perhaps it was too close for the WCAB to go against the WCJ.  In the world of WCDefenseCA, however, applicant’s claim should have been barred by the statute of limitations.  This workers’ compensation defense attorney opines so, at least.

What do you think?  Is your dear and loyal blogger over-favoring the defense?  Or did the WCJ get it wrong?

Categories: Presumptions Tags:

New Study Shows that AMA Guides Were a Big Win for CA

February 7th, 2012 No comments

Is it still news if it’s not particularly “new”?

The Center for Study of Social Insurance has provided an estimate of the effect of the adoption of the AMA Guides for California’s workers’ compensation system.  Your typical California workers’ compensation defense attorney should be thanking his or her lucky stars for the adoption of the AMA Guides – a actual, scientific approach to rating disability, with a limit of quack doctors puffing up liability and impairment – a dream come true!

The estimate looked at the years of 2010 through June of 2011 as compared to the years 2003-2004, specifically looking for total rating, total pay-outs, and other indicators of that sort.  The results are no particularly surprising but still deliciously wonderful to hear:

A 40% drop in ratings before apportionment for unrepresented cases and a 28% drop in represented cases (it appears that it is worth it for applicant’s to retain an attorney).

A 52% drop in compensation for unrepresented cases and a 37% drop in represented cases.

And, the best part of all, a 25% reduction in cases that would have had some rating of permanent disability.  Bear in mind – that is with Almaraz/Guzman trying to worm its way through the heart of the AMA Guides and the 2005 reforms.

The governance of California is a book riddled with errors big and small – it does not appear that history will regard moving from the 1997 schedule to the AMA Guides to be among them.

Categories: AMA Guides, News Tags:

Another Pro-Medical Provider Network Panel Decision

February 6th, 2012 No comments

California’s Medical Provider Network is regularly the subject of both applicant attorneys’ and lien claimants’ raids.  But, just as walls well guarded do not fall, the MPN still has some stiffness in it left.

The recent panel opinion of Breanna Clifton v. Sears Holding Corporation shows the Workers’ Compensation Appeals Board’s resistance to applicant’s efforts to overwhelm the defense with burden after burden of proof.

Applicant self-procured treatment outside of defendant’s MPN, claiming she was entitled to temporary disability payments and reimbursement for treatment based on the opinion of this out-of-network chiropractor.

Defendant pointed out that the report was inadmissible and the claim for reimbursement barred in accordance with Valdez.  Applicant responded by claiming that defendant had not proven that the MPN was valid.

Defendant filed for reconsideration following the workers’ compensation judge’s award of everything under the sun to applicant.  In an act of moderation, the WCJ declined to order the executives of Sears Company to personally apologize to applicant in the form of a choreographed dance and song routine for daring to invoke a defense.  (Some day…)

Although the defense did not contest the finding of injury, it did object to the admission of the reports and the reimbursement for treatment expenses.

The panel held that “a defendant may satisfy its burden of proving it has a properly established and noticed MPN by asserting that it has an approved MPN and requesting judicial notice of the inclusion of its MPN in the list of approved MPNs on the [Administrative Director’s] Web site, and by offering unrebutted evidence that it provided the required notices.”

Lien claimants have threatened to demand I prove every element and procedural requirement necessary for a valid MPN – now, the AD’s website is all the proof any attorney needs.

But what do you do when the applicant claims the notices were never provided?  Or, perhaps, after X years with his or her employer, the applicant suddenly doesn’t understand English?  The injury, you see, limited the applicant to his or he native tongue.

This can happen, of course, and the deposition will likely tip you off.  But be prepared with affidavits, witnesses, etc. – perhaps even a note in the employment file that applicant also speaks another language, so that the Medical Provider Network administrator can provide notices in English and the other language as well.

In any case, the MPN is a great wall against bad reports and inflated billing – when applicants and lien claimants try to push it down, don’t be afraid to push back!

The MPN is Back! (For Now)

February 3rd, 2012 No comments

The post made on Wednesday had some scary implications.  Fortunately, it appears there may be a light at the end of the tunnel, and this time it has a 50-50 chance of not being a train.

In the case of Michael Thomas v. Safeway Stores Inc., the Workers’ Compensation Appeals Board had previously ruled that the self-insured employer must pay for surgery to be performed by a surgeon in Washington, even though there were eleven surgeons in Safeway’s medical provider network which could do the surgery and were close to applicant’s residence in the San Francisco Bay Area.

Panic ensued among the defense community as the California Applicant’s Attorneys Association toasted to the death of the MPN over flutes of champagne.  But it appears that Safeway stood firm and in filing a petition for reconsideration was rewarded with the sight of the WCAB blinking.

Standing firm against the waves is a sensation every workers’ compensation defense attorney wants to feel – staying standing when the wave crashes against you is one rarely felt.

A new order issued granting reconsideration, giving the parties ten days to settle this dispute or to return to the workers’ compensation judge to give the defense a chance to cross-examine the panel qualified medical evaluator and offer rebuttal evidence.  After all, defendant’s due process rights were summarily brushed off thus far.

Defendant’s offer to settle the matter was fairly reasonable:  Safeway would pay for the surgery under the California fee schedule and applicant would pay for travel and lodging.  There is no word yet on whether the applicant, let alone the surgeon in Washington, would agree to these terms.

In short, it appears that sanity might return to the world of workers’ compensation, even if for a short while.  Workers’ compensation lawyers and adjusters can rejoice in that, at least for now.  Despite rockets red glare and bombs bursting in air, the MPN flag is still there!

In what is quickly developing into an MPN trifecta here at WCDefenseCA, drop by on Monday to see another pro-MPN opinion recently released into the wild.

Comp Slickers: The Legend of Harder’s Gold

February 2nd, 2012 No comments

California owes some of its prosperity to Man’s never-ending search for gold.  The process of mining gold, from a complex company operation to one gritty solo prospector, reminds many Californians of our own collection and adopted heritage.

So what separates Stephen Eugene Harder of Woodland from these brave gold hunters who pierced the Earth with their gaze and their mining equipment?  Well, Curly the Gold Miner probably never filed a workers’ compensation claim, and also didn’t claim disability in between swings of his pickaxe.

Harder was arrested after footage was obtained of his engaging in, among other things, gold mining activities.  Before any confusion ensues and a possible libel action arises, Mr. Harder was NOT caught in an effort to marry a wealthy, significantly older, spouse in the hopes of a profitable divorce.  This is the old-fashioned type of gold-digging that includes retrieving precious metals from the Earth.

The Yolo County District Attorney’s Office scored a conviction of five counts of workers’ compensation fraud.  Sentencing is scheduled for March 23.

While WCDefenseCA thanks Mr. Harder for keeping California’s gold-mining heritage alive, a much bigger (and considerably less sarcastic) salute goes to Yolo County District Attorney’s Office.

Categories: Fraud, News Tags: