WCDefenseCA

The panel Qualified Medical Evaluator system certainly has its advantages – less doctor-shopping, less doctor and deposition fees, etc.  On the other hand, it has the ridiculous effect of sticking parties with a list of three (effectively two, once the other side uses its strike) choices in who the panel QME will be.  After all, the physician may not be actually qualified or may have an applicant’s bias (“What do you mean it’s NOT industrial? There is no such thing!”).

Parties will try every trick in the proverbial book to get out from under a bad panel.  The recent case of Sharon Frink v. Shasta-Tehama-Trinity Joint Community College is no exception.  The basic point of this case was that applicant was evaluated by a PQME in Anderson, California.  The PQME then moved his office to Redding, California.  The two offices were 15 miles apart.

Naturally this warrants a new panel, because the doctor was obviously “unavailable” under California Code of Regulations section 34(b).  Applicant’s attorney moved for a new panel and the defense filed a petition to compel attendance at the PQME’s new office in Redding.  Reading the plain language of the rule, the workers’ compensation Judge ordered the Medical Director to issue a new panel.  It may be just your beloved cynical blogger’s observations, but it seems that asking a WCJ to apply the plain language of a rule or statute is usually a fruitless effort when done by defendants.

Defendant promptly petitioned the Workers’ Compensation Appeals Board for removal.  Dear readers, if you are wondering why this issue was not the subject of a petition for reconsideration instead, might I suggest you glance at the “Reconsideration or Removal?” posts.  In granting the defendant’s petition for removal, the WCAB held that “the Legislature intended to prevent the AME/QME selection process from restarting where there is a reasonable possibility that the injured worker return to the same medical evaluator.”  This policy “both minimizes medical-legal costs and thwarts attempts to doctor-shop.”

In other words, a 15-mile-drive is not an unreasonable burden for the applicant to undertake.

WCDefenseCA is happy to celebrate it’s 200th post!  Thank you to my dear readers who have subscribed, e-mailed, called, visited, re-visited, and declined to note the obvious.  (You call this a blog?  Where are the pictures of cats doing funny things?  Isn’t that what the internet is for?)  WCDefenseCA’s readership is somewhat of a (very well informed) club.  To celebrate, today’s post is about another kind of club…

One of the stories making the news is that of a state correctional officer who claimed his gunshot wound, sustained while in a San Francisco “sex club,” was industrial in nature.  (Honestly, folks, I don’t make these up!)

The correctional officer, while engaged in his duties as a prison bus driver, was spotted by a parolee, a violent felon, who then proceeded to shoot the officer.  At least, that was the officer’s theory.

The prosecutor in the officer’s attempted perjury case had a different one – the officer was engaged in a… well… in an act with another club patron’s “female companion,” while that club patron was engaged in what was likely a similar act with the officer’s wife.  An argument broke out and the result was the officer’s injury.  Not exactly industrial, even if the shooter was never caught and the cause of the shooting was “mysterious.”

The jury found both the officer and his wife guilty of attempted perjury.

Thanks for reading!

If today’s blog post appears to be the product of an attorney, fiercely committed to the defense of his clients, but tragically suffering from vertigo, that attorney hopes you will forgive him – one of the more recent Workers’ Compensation Appeals Board panel decisions has left his head spinning.

A little background – we all read the Breanna Clifton v. Sears Holding Corporation case where three WCAB commissioners unanimously 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.”

It was all so simple – and now it’s not.  (Are your spider-senses tingling yet?)

In the recent case of Juan Carillo Matancias v. Milk Maid Dairy, applicant sustained an injury to his knee, when a birthing milk cow pushed him through a fence.  He was treated by a physician within the Medical Provider Network and then released from care seven months later.  At the time of the injury, applicant was provided an explanation of the MPN and a link to a website listing all of the MPN doctors.

Applicant was unhappy with being discharged to return to work and sought additional treatment from a non-MPN physician.  After the trial and conclusion of the case-in-chief, lien claimant sought to have its $15,000 bill paid by the defendant.

But the defendant had Clifton.

Raising the MPN defense to the lien, the defense had to sustain an adverse ruling from the workers’ compensation Judge who found that it is the defendant’s duty to prove the MPN is valid, even it the lien claimant does not raise it as an issue at trial, and the fact that the MPN is listed on the AD’s website is “weak sauce,” as the kids are known to say these days, without the defendant presenting that evidence at trial.

Nor did the defendant obtain relief from the WCAB, with two out of three commissioners holding that the MPN defense fails because there was no proof that defendant informed applicant, at the time of his discharge, that he could challenge the release from care or that the lien claimant was not in the MPN.

But even if we were to concede these facts, the lien claimant KNEW that it was not entitled to payment.  The lien claimant, a repeat player, built its business model around charging ahead with providing treatment, and then litigating the costs to recover payment.  After all, even without the lien claimants experience with other cases, the objection letters from the defendant came early and came often.

In any case, perhaps, dear readers, we must do the MPN dance at trial, regardless of the facts.

Andre Torres, now a female, was recently sentenced to 11 years to life in prison for the brutal 2010 knife attack against a workers’ compensation defense attorney in Los Angeles.

WCDefenseCA is known for making sarcastic jokes and poking fun at the more insane aspects of California’s workers’ compensation system, but this story is not a source of amusement by any means.

Torres, a man at the time of the attack, overheard that the victim was a defense attorney with the same firm that resisted Torres’ workers’ compensation claims some time ago.  The victim had never actually worked on Torres’ case.

Torres stabbed the victim from behind with a butcher knife and the victim and a passing-by good Samaritan eventually managed to subdue Torres’ long enough for law enforcement officers to arrive.

California’s workers’ compensation system is one riddled with frustration and difficulty for  all parties involved.  Defense attorneys, adjusters, and employers must always be on their guard for situations such as these.

Although there were no threats made in this instance, if any are made they need to be dealt with seriously and immediately – violent attacks such as these can and do happen.

Be safe out there, dear readers, and your determined blogger will endeavor to do the same.

What happens when Medicare Set-aside Agreement treatment occurs before the approval of a Compromise and Release?  That is what appears to have happened in the case of Carolyn Christian v. TJ Maxx, as covered excellently by Jennifer C. Jordan, Esq.

Medicare Set-aside Agreements are a paralyzing element in California workers’ compensation.  Applicants’ attorneys and defense lawyers must send away for an agreement as to the future medical treatment of an applicant prior to settling, and wait for various amounts of time before approval by the federal government.  Perhaps because workers’ compensation benefits are so often used as a supplement to retirement income at the end of a workers’ career, MSA problems are close to the top of the list of problems with the system.  WCDefenseCA has had occasion to cover this topic a time or two before.

In Christian, applicant entered into a compromise and release agreement with defendant which included an MSA.  One of the items listed on the MSA, which defendant was including in the compromise and release amount, was knee replacement surgery.  Well, after starting the MSA process and before getting approval of the compromise and release agreement, applicant had the procedure performed, and was looking forward to receiving the same benefit twice – both the treatment and the cost of the treatment.

The defense had other ideas about how this works.  Seeking to have the C&R set aside as either the result of a mutual mistake (at best), or the product of fraud (at worst), the defense met with resistance from the workers’ compensation Judge and the C&R was not disturbed.

The WCJ reasoned that applicant might need a second knee replacement surgery in the future, but the defendant appealed, and the Workers’ Compensation Appeals Board ordered additional hearings on the matter.

Perhaps we should begin including terms in our compromise and release agreements to the effect that the amount due after approval shall be reduced by the amount of MSA contemplated treatment received before the date of approval?

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?

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?

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.

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…

The Court of Appeal recently handed down its ruling on whether or not an applicant’s claimed migraines are compensable.  Applicant initially proceeding on a claim of injury to the psyche, but understood very quickly that defendant had a fairly solid defense in the good-faith personnel action.  (Labor Code § 3208.3(h).)  In a monumental show of consistency and legitimacy of claim over “gaming the system,” applicant amended his application on the first day of trial to include migraines as a claimed injury.

3208.3(h) does not always work, as my wise and learned readers no doubt recall.  There are a lot of ways applicants attempt to slip around this broad and solid shield – including making regular efforts to use semantics with respect to what caused the injury.  It was complying with the good faith personnel action, not the communication of the action to the employee, after all.

In this case, applicant tried, with considerable success, to argue that his migraines were the result of a psychiatric injury.  Although the psychiatric injury itself, caused by “friction with his supervisor,” may be barred by the defense, the resulting migraines are not.

The workers’ compensation Judge awarded applicant compensation for the migraines, and the Workers’ Compensation Appeals Board denied defendant’s petition for reconsideration.  Most cases end here for a variety of reasons, and your perceptive blogger submits that it is most appropriate to applaud the County of San Bernardino, the employer in this case, for pressing on and petitioning the Court of Appeal for a writ of review.

One can not help but imagine that there was a spike in applicant’s migraines after the Court of Appeal decision came down, and I would therefore advise the Court of Appeal to retain a tort defense attorney, just in case.  No, migraines are not compensable when they are the result of a non-compensable psyche injury.

The Court of Appeal held “seldom are the effects of stress limited to injury to the psyche without resulting physical problems.”  The Court continued, “[i]t would be relatively easy for a claimant to avoid [the bar of 3208.3(h)] by asserting internal problems and symptoms, such as upset stomach, headache and sleeplessness, but not injury to the psyche per se.”

If I had a headache before reading this opinion, it has certainly cleared up – the Court of Appeal has given the defense community another brick to put in its wall.