Archive for February, 2013

3 MPN Docs Near Employee’s Home May Not Be An Option…

February 27th, 2013 No comments

California Code of Regulations section 9767.5 lays out the “access standards” for a Medical Provider Network.  Among those standards is the distance or travel time requirement of a treating physician – “A[n] MPN must have a primary treating physician and a hospital for emergency health care services, or if separate from such hospital, a provider of all emergency health care services, within 30 minutes or 15 miles of each covered employee’s residence or workplace.”

So, what do you think, dear readers, does the “or” mean “or” or does the “or” mean “and”?  Now, I know that some of the applicants’ attorneys that end up here by accident are screaming at their computers right now: “It means AND! Just asking the question entitles my client to 132a damages! Medical Provider Networks are a violation of human rights!  I AM ABOVE THE LAW!!!”

As for the rest of us, I would venture to guess that the word “or” typically means the word “or” and not “and” or “ponies” or another other word.

This issue became the subject of some judicial review in the case of Miguel Robles v. Evolution Fresh Inc., which was recently denied review by the Court of Appeal.

Mr. Robles enjoyed the benefit of 3 spinal orthopedic primary treating physicians located a stone’s throw from his place of work, but only 1 from his place of residence.  His reading of section 9767.5 lead him to the conclusion that defendant’s MPN was defective.  Defendant, naturally, did not agree with Mr. Robles’ (or his attorney’s) interpretation of the law.

The matter was presented to the workers’ compensation Judge with a request for judicial guidance, and the WCJ found that the defendant was correct – “[t] the use of the conjunction ‘or’ is indicative of the use of an option for purposes of meeting the conditions of the regulation.”

The WCAB concurred and the Court of Appeal denied review.

Now, this case took place in the Los Angeles area… so the fact that the employee lived fifty miles away from his place of employ was not that unusual.  But, as an employer, can you imagine trying to have an MPN which has at least three of every type of physician within 15 miles or 30 minutes of each of your employees?  That would be unreasonable, if not impossible.

The WCAB made another point upon which all of us on the defense side should keep our sharp, hawk-like eyes – there is a conflict between section 9767.5(b) and Labor Code section 4616(a)(1).  While the former allows a choice for the employer/insurer – 3 physicians of each type 15 miles from home or residence (and conceivable, one from one point, and two from another), section 4616(a)(1) requires the provider network to “include an adequate number and type of physicians … to treat common injuries experienced by injured employees based on the type of occupation or industry in which the employee is engaged, and the geographic area where the employees are employed.”  (Emphasis belongs exclusively to your humble blogger).

The panel held that “to the extent [section 9767.5(b)] exceeds the scope of the statute, section 4616(a)(1) controls.”

This reasoning says that the legislature did not intend to give the employer/insurer the option of providing physicians at applicants’ residence, but only at his place of employ, and the regulation is therefore invalid as to allowing employers to provide physicians near the employee’s home instead of his job.

So, if an applicant wants out of an MPN, he need only check if there is a physician around his job site… even if every single orthopedist licensed to practice medicine sets up shop across the street from his house, if he lives more than 15 miles from where he works, the MPN is invalid… or so says the non-binding panel opinion.

There may be more developments on this theory later, but employers should beware of this argument, especially when setting up an MPN.

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132a Defeated; But Attrition Remains

February 25th, 2013 No comments

Isn’t it odd that employers are cautioned not to terminate an employee’s employment just because there is a workers’ compensation case hanging in the air?  After all, Labor Code section 132a prohibits discrimination because of a workers’ compensation claim… but what if the workers’ compensation claim is just a coincidence and not a cause?

In Department of Rehabilitation v. Workers’ Compensation Appeals Board, the Supreme Court told us that an employer need only avoid “treating injured employees differently, making them suffer disadvantages not visited on other employees because the employee was injured or had made a claim.”

The following case is an example of why employers are forced to walk on eggshells around workers who allegedly sustained work-related injuries.

In the case of Angela Moreno v. City of Glendale, Ms. Moreno claimed that the termination of her employment was an illegal and discriminatory act, as she had claimed a work-related injury.  The record included a long list of reprimands and unsatisfactory and below average performance reviews.  Some of Ms. Moreno’s less-than-admirable qualities?  “inefficiency, incompetency, neglect of duty, failure to perform assigned duties, and failure to meet job performance standards.”

So this is a slam-dunk, right?  We’ve got a worker who has been cruising for a career bruising; aching for a tenure breaking; and shooting for a job booting (not to mention aiming for an employment shaming).  What’s wrong with finally letting her go and become a blessing to some other employer?

Workers’ compensation is the problem.  Because of her comp claim, the entire human resources process smacks of discrimination, as the distinction between causation and correlation is discarded in light of a possible pay-day.

And this makes sense, because, as my readers may recall in the case of Lucas Marinics v. Gilmore Heating & Air Conditioning, the dissenting commissioner noted that the only reason not to tolerate Mr. Marinics further was the workers’ compensation claim.  And in this case, we have poor performance reviews going back to 1998… why wait this long to cut the cord? (The splendor of government employment…)

The WCJ found that applicant’s claim of 132a discrimination was defeated because she “did not present any witnesses or documentary evidence of any type showing that she was treated differently from nonindustrially injured employees.”  The WCAB concurred.  But, in a way, she had won – she had forced her employer to waste a bunch of time and money defending the baseless claim of an employee who was a documented poster child for at-will employment.

So your humble blogger’s advice?  Instead of sinking money into a lawyer to defend a baseless claim and sending your employees to testify instead of doing their actual jobs, just get rid of crappy employees when you realize that they’re crappy, and don’t wait for a workers’ compensation claim to be the last straw.

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Oklahoma to Run Opt-Out Again

February 22nd, 2013 No comments

My beloved readers may recall that Oklahoma mounted an unsuccessful attempt to introduce an “opt-out” provision to its currently compulsory workers’ compensation program.

Well, folks in Oklahoma are not to be discouraged by an unsuccessful attempt!

It looks like Oklahomans… Oklhamonites… Oklahomanians… the fine people of Oklahoma are going to try again, this time including an option to opt out as part of a larger workers’ compensation reform bill.

Oklahoma Senate Bill 1062 will seek to let employers opt out of the workers’ compensation system (see sections 120 et. seq.

Now, my dear readers, before you start glaring at your monitor, cursing your humble blogger or his humble blog, and demanding to know why California readers should waste their time learning about the crazy doings of Okla… Okla… well the people of Oklahoma, I submit to you the following:

As Texas is currently the only opt-out state in the Union, so if Oklahoma gets this done, we might be looking at somewhat of a trend… and a trend is your friend!

Opting out means that employers can set up a benefit plan of their own, although how it will all play out is not certain yet – after all, the bill could meet defeat once again, and anyone who stands to lose money from an efficient workers’ compensation system is not going to go along quietly.

But, California can take a lesson or two from our good friends over in Texas and Oklahoma – perhaps some friendly competition in the form of an opt-out provision can help force workers’ comp costs down.

WCDefenseCA, from its post of influence in California, wishes Oklahoma luck in passing its reform, and hopes that the wise elected leaders of the Sooner State “O.K.” the opt-out clause.  (Get it? OK?).

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Ventura County Sheriff’s Office Employee Nabbed for WC Fraud

February 20th, 2013 No comments

Welcome back from the three-day weekend, dear readers.  Many of us spent the days between Friday and Tuesday enjoying the sun, the family, the friends, the life beyond the life of Claims.  Others, like your humble blogger, looked out the window of his office at people walking the street with smiles on their faces, maliciously grumbling before turning back to the latest frivolous 132a claim.

But your humble blogger didn’t have a “bad” weekend compared to some – Keri Atwood* of Santa Paula, Ventura County, go to see the other side of her employer when she was arrested for workers’ compensation fraud.

A civilian employee of the Ventura County Sherriff’s Office, she made a claim for workers’ compensation benefits after she sustained an imaginary crippling injury to her left ankle.  However, her treatment visits proved so effective, that she was seen using crutches or a wheel chair to get to her medical appointments, and then would miraculously walk as if cured afterward.  One just has to wonder if her doctor has to purchase wine or just makes it from water.

During her temporary disability period, she was paid over $29,000 in temporary disability benefits.  (That’s tax-free, by the way).

Interestingly enough, her husband was arrested as well, on the theory that he drove her to her doctor visits and failed to disclose her true physical condition.  (The family that crimes together, does time together?)

In any case, this humble blogger’s hat is off to the Ventura County D.A.’s office for its fine work – please keep the fraud arrests coming.

*My beloved readers know that I’m not one to name names, especially when the Board is cruel in its chastisement of an attorney making a slip-up.  But when it comes to fraudsters and alleged fraudsters, there is no harm in a little shame.

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Happy Presidents’ Day!

February 18th, 2013 No comments

Happy Presidents’ Day to all my beloved readers, and even some of my not-so-beloved readers.  Your humble blogger wishes you a restful and profitable 3-day weekend.  If you happen to be in the office glaring menacingly out your window, much like your humble blogger in between denials of claims, please drop me a line to say hello!

presidents' day funny

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On Trampolines and Serious and Willful Misconduct (Part 3 of 3)

February 15th, 2013 No comments

So, last time we had discussed that maybe, just maybe, Sasha could argue that she had enough of a defense to avoid Serious and Willful (S&W) liability for the injuries sustained by her window-cleaner employees after they fell from San Francisco sky-scrapers with no safety-equipment except her garage-sale acquired trampolines several floors below.

Then Sasha brought up Cal/OSHA.

California’s Division of Occupational Safety and Health provides various safety regulations for work sites and seeks to have them enforced.  Violating Cal/OSHA regulations, with or without resulting injuries, can lead to fines, stop-work orders, and a whole host of other problems for employers.  This includes possible jail time.

Additionally, Labor Code section 4553.1 provides an alternative method of proving S&W misconduct.   By showing that an employer violated a specific Cal/OSHA safety order which resulted in the injury of the employee, and the employer either knew (or it was obvious that) the conditions at the work site made the order applicable, and that the employer’s failure to correct the condition constituted a reckless disregard for the probable consequences, the employee might prevail on a S&W claim.

But don’t be fooled – this can be harder for an employee to do than it might seem.

Cal/OSHA has tons of rules and it’s hard to follow them all.  Some rules are administrative in nature and relate to record keeping – an employer can easily violate this rule but it’s hard to prove that the failure to keep records of past citations proximately caused an employee’s injury.  In negotiating with Cal/OSHA, an employer might agree to offer no contest to safety order violations that wouldn’t prove up the injury in exchange for a dismissal on safety order violations that might.

In Ford Construction Company v. WCAB (2010, unpublished), an employee sustained injury (and death) when a ripper shank weighing more than 2000 pounds fell from a suspension cable.  Even though the employer had violated various Safety Orders, the Court of Appeal had found that those violations did not justify a finding of S&W misconduct on the part of the employer because it was not the violation of the relevant safety orders that caused the workers’ injury.

However, simply complying with the relevant Safety Orders is not a defense either.  For example, in the case of C.C. Meyers v. WCAB (2012, unpublished), the Court of Appeal concurred with the defendant that it had followed the relevant safety orders with respect to providing back-up sirens on an excavator.  However, even though there was no relevant Cal/OSHA safety order violation, the Court still found S&W misconduct on the part of the employer for failure to provide a spotter in a loud and tight work environment where a back-up siren might not be heard.

For example, Safety Order 1670 requires a personal fall arrest system for workers operating more than 7.5 feet from the ground.   So an employee might show that (1) Sasha violated the order by not providing harnesses; and (2) the failure to provide a harness proximately caused the injury (because of the fall).  However, if Sasha didn’t know about the safety order, the theory might fail under section 4553.1.

What do you think, dear readers?  Did poor Sasha commit serious and willful misconduct by replacing safety harnesses with trampolines and sending her brave and blindly loyal employees to clean the sky-scrapers of San Francisco?

WCDefenseCA URGES its readers and friends to not do what Sasha did – use all possible safety equipment to protect your workers; obey Cal/OSHA Safety Orders; and don’t rely on trampolines to save workers falling from skyscrapers. 

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On Trampolines and Serious and Willful Misconduct (Part 2 of 3)

February 13th, 2013 No comments

Sasha was in a tough spot: her own personal trampoline, the workers’ compensation policy, was too small to cover her fall from employer grace – being stuck with a Serious and Willful Misconduct allegation.

Your typical California employer closes off workers’ compensation liability by opening up its checkbook – by forking over a chuck of change every year or every six months, the employers keeps on employing, and injuries get referred to the workers’ compensation insurer.  And that’s what Sasha did – her workers had no fall-related injuries, but there were still injured backs from lifting paint cans and twisted ankles from climbing ladders.

But, workers’ compensation insurance does not cover everything.  This includes discrimination and retaliation against workers for having filed a claim.  Workers’ Compensation coverage also excludes allegations of serious and willful misconduct by an employer (see Insurance Code section 11661).

Time to File and Maximum Recovery

So, let’s start with the basics on serious and willful misconduct (S&W for short).  S&W actions must be commenced within a year from the date of injury (see Labor Code section 5407) and can fetch the employee a 50% increase in the benefits paid (see Labor Code section 4553).  Mind you, dear readers, that 50% increase is on the whole package of benefits, not just the permanent disability indemnity.  (Ferguson v. WCAB (1995) “an award for increased compensation due to the serious and willful misconduct of an employer under section 4553 must be calculated … to include medical treatment payments, medical-legal fees and vocational rehabilitation costs, as well as all indemnity benefit payments.”)

That means, dear readers, if your chosen workers’ compensation insurer is known for generously handing out the benefits as your experience modification inflates, so too inflates your liability for serious and willful misconduct.  In considering an insurer, your humble blogger suggests you explore hard-nosed fighters rather than jelly-fish piñatas.

No Conduct by Fellow Employee – Must be an Employer Representative

The Misconduct has to be on the part of the employer, a managing representative, a partner, or a general superintendent – basically, someone high up with the employer’s authority to direct workers’ activities.  (Section 4553).  Excluded from this is a fellow employee.

So, in the case of Bigge Crane & Rigging Co. v. WCAB (Paul Hunt) (2010), an employee was injured when a crane operator made a mistake in disassembling a crane at a construction site, and a load fell on the employee’s foot.  In rejecting Mr. Hunt’s efforts to secure additional benefits through a S&W action, the Court of Appeal reasoned that the employee dismantling the crane was not an officer or executive or anyone else with any real authority vested in him by the employer – just another employee performing specialized work (crane dismantling) instead of unspecialized work (just lending a helping hand).

Type of Conduct

But what is S&W?  Serious and willful misconduct, is given form by the Labor Code (see Sections 4550-4558), but is defined by case-law.  As early as 1953, the Supreme Court had fleshed out the term to mean “an act deliberately done for the express purpose of injuring another, or intentionally performed either with knowledge that serious injury is a probable result” or by having total disregard that damaging consequences might occur.  (See Mercer-Fraser Company v. Industrial Accident Commission (1953)).

In Mercer-Fraser, the Supreme Court specifically held that a finding of negligence, or even gross negligence, meant that there could not be a finding of serious and willful misconduct.  So, Sasha’s best bet was to show that she had merely been negligence (or grossly negligent) in planning to prevent worker injuries after sky-scraper falls with the use of trampolines.  (Easy enough to do, no?)

To prove that the employer engaged in S&W misconduct, the employee can show (1) the employer knew that there was a dangerous practice going on; and (2) the employer knew that the practice was dangerous.  In Rogers Materials Co. v. Ind. Acc. Com. (1956), the employer had warned its employee not to clean a mixer drum from a cement mixer truck while it was moving, but he did so anyway (repeatedly), and his pant leg got caught on a moving part, resulting in him being thrown from the truck and sustaining injury to his back and leg.  The reason for cleaning a moving drum was to prevent the cement inside from drying and hardening, which would then require applicant to climb inside the drum and chip away the cement with a hammer!

In affirming the finding of Serious and Willful misconduct on the part of the employer, the Supreme Court reasoned that concern for injury or a warning against certain conduct was not enough, because the employer had “either acquiesced in the practice or impliedly consented to it.  The fact that [the employee] was not specifically ordered to wash the drum while it was rotating cannot shield the employer from liability.”

But in Sasha’s case, she had gone a step further – she had specifically trained her employees to dive for the trampolines when they fell.

I explained the law in this way to Sasha, but she did not seem concerned.  “So I’m in the clear, right?  After all, I wasn’t trying to hurt any of my workers, and I did provide them with the best trampolines available for free at garage sales that I could find.  I even trained them in the art of trampoline diving so that work would be both safe and fun!”

Well, if Sasha was here typical sweet and kind self at trial, the workers’ compensation Judge could be persuaded that she intended her workers no harm, and that she had, in fact, tried to take corrective measures against their falls.  It’s not like she was sending them up without the trampolines – she had made some effort to avoid injury to the workers.

And, to her credit, her method had worked – it was not until she started tackling San Francisco’s sky-scrapers that injuries started occurring, so perhaps she was just negligent, or grossly negligent, in her misconduct?  (It’s a hypothetical folks… work with me here!)

That’s when Sasha asked me what “Cal/OSHA” was and why they were sending her letters demanding to inspect her business…

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On Trampolines and Serious and Willful Misconduct (Part 1 of 3)

February 11th, 2013 No comments

When your humble blogger was still a humble (and starving) law student, he was told that, upon receiving a license, most attorneys involuntarily go into what is known as “F&F Law.”  This was explained as “friends and family law” as the initial slate of clients.

Your humble blogger’s actual friends and family rarely have workers’ compensation defense questions to bring to him, but his imaginary ones always do, as was the case with his cousin’s girlfriend Sasha.

Sasha had started a business in Sacramento, where she hired painters to touch up houses and buildings in all the Northern California area.  Her edge in business?  She saved money by setting up trampolines around the work crews instead of using ropes or harnesses or even rail guards.  In fact, her only safety tool was the array of trampolines around the scaffolding that went up her clients’ buildings.

I asked Sasha if she thought this was dangerous, but she seemed convinced that trampolines would be the best bet of a “safe” workplace – lots of falls but no injuries. In a best-case scenario, the worker would bounce right back to where he or she was working before, and just resume work.  “And if it isn’t,” she said, “that’s what workers’ compensation insurance is for!”

This worked out just fine at first, with the workers either staying on their feet or bouncing to safety.  In fact, the trampolines proved so effective, workers even “practiced” falls during their lunch break, because it was so much fun.  But Sasha’s success was her eventual downfall.

As word spread of her low bills and cheerful workers, her operation expanded to window-washing and wall scrubbing, until she was hired to help clean and repaint some of the best-known sky-scrapers in San Francisco.  Your humble blogger is no physics expert, but he’s pretty sure that at a certain point, the fall is too great for a trampoline to effectively stop.

When one of her workers, April (the applicant) fell from the scaffolding set up around the building, she aimed for the trampoline set up ten stories below, as per her training.  The result was a very unfortunate injury and an application for adjudication of claim.  But the fun didn’t stop there – April also filed a petition for increased benefits, alleging Sasha’s misconduct was serious and willful.

Sasha called me to ask what she should do.  It turns out that, in response to this injury, she took the precaution of double-stacking her trampolines, but that work was continuing.  After I persuaded her to cease work until she had gotten regular safety equipment, including harnesses, I thought I might prep her for what was to come as part of this serious and willful claim.

Her first disappointment was the revelation that workers’ compensation insurance does not cover liability for allegations of serious and willful misconduct (see Insurance Code section 11661).  And the news didn’t get any better from there.

What do you think, dear readers, will she bounce back from this?  Come back on Wednesday for more…

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Subjective Desire to Work an Employee STILL Does Not Make

February 8th, 2013 No comments

Some of my beloved readers may recall the story of a certain Stewart Espinoza, who allegedly sustained an injury while working in the kitchen of a county jail (as an inmate, mind you – the jail birds don’t enjoy visiting chefs).

Stewie claimed compensation benefits but the County Jail said he wasn’t an employee – he was forced to work as part of his incarceration.  Stewie retorted that he wasn’t forced to work at all – he would hop up and down in his cell every morning because he was so excited to go to work in the kitchen.  He WANTED to work.  Well, the Workers’ Compensation Appeals Board ended up reversing the WCJ’s finding of employment, relying on a local ordinance that specifically barred any inmates from employment, and only allowed their compulsory labor as part of the incarceration.

The Court of Appeal denied applicant’s petition for a writ of review, but the Supreme Court reversed – the COA was required to take a good look at this case.

Well, in an unpublished decision, the Court of Appeal did take a look at this one, and came down the same way – no finding of employment.

Referencing a county order prohibiting the formation of an employment relationship between the County and inmates, the Court held: “[g]iven that Order #91 precludes the establishment of an employment relationship, it is not necessary to address the question whether Espinoza volunteered to work.”

The Court went on to note that the County had a sizeable population of inmates, and it would put the County into a difficult financial situation if it were possible to form an employment relationship with any of them.

Your humble blogger agrees – it would be financial burdensome, ruinous even, if the County had to cover an endless amount of inmates and possibly provide workers’ compensation coverage for some or all of them.

Sadly, while the Los Angeles County Jail can simply “opt out” of the comp system, non-government (and non-jail) employers are not so fortunate.  Texas remains the only place where a business can “opt-out” of workers’ comp.

Perhaps Stewie will seek the Supreme Court’s renewed intervention?

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Imaginary Over-Time Does NOT Increase Average Weekly Wages

February 6th, 2013 No comments

California’s workers’ compensation system determines some of the benefits owed based on the average weekly wages of the employee prior to the date of injury.  This can be calculated in a variety of ways, but one method generally rejected is applying applicant’s imaginary wages to the final calculation.

In the case of Yolanda Cruz Garduno v. Tides Wharf Bodega Bay, applicant claimed that her average weekly wages were more than $100 greater than those found by the workers’ compensation Judge.  Applicant’s theory?  Worked but unpaid overtime.

Applicant claimed to have worked several hours of overtime for which she was never paid, but when pressed for proof, applicant came up empty-handed.  At first, she claimed that she had kept records of her hours, but that she had lost the papers which would have proved her case.  She also claimed to have complained to her supervisor, but this testimony was inconsistent with other testimony claiming she had never complained.

The workers’ compensation Judge reviewed the payment records, and averaged the weeks during which applicant worked at least 30 hours per week, finding an AWW of $308.43 (actual AWW was $297.50).  Although defendant did not seek reconsideration for this difference of $10.93 per week, applicant did.

The Workers’ Compensation Appeals Board relied on the WCJ’s ability to weigh credibility and the WCJ’s reasoning, denying applicant’s petition for reconsideration, and noting that “applicant’s claim of overtime income was supported only by inconsistent testimony and lacked other corroborating evidence.”

Now, bear in mind, Labor Code section 4453 lays out the various methods of calculating average weekly wages, and overtime pay can factor into the AWW.  However, though your humble blogger may appear cold-hearted and sinister, but reality is reality: it’s possible applicant worked overtime; it’s possible she wasn’t properly paid; it’s possible that workers’ compensation in California is a flawless system which doesn’t waste money, turn productive workers into permanently useless ones, and isn’t just a social experiment in insanity.  Like I said… it’s possible.

But, just as one would be ill-advised to bring a knife to a gun fight, bringing inconsistent testimony without so much as a literal scrap of paper evidence to support it is not going to drastically increase your chances of winning the blue-collar lotto.

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