Archive for March, 2013

No Virginia, You Can’t Contract Out of Workers’ Compensation

March 29th, 2013 No comments

As my dear readers may recall, the issue of independent contractor vs. employee is one that has been discussed at some length on this blog.  But the issue is one that is alive and well and comes up again and again.  Spelling life or death for a claim, the issue can determine if the injured worker was an employee covered by the employer’s workers’ compensation policy, or a self-employed life-gambler, taking his or her chances against injury.  It also spells the difference between penalties and a misdemeanor for an illegally uninsured employer, or an entity in the clear.

This issue came in the case of Jennifer Alcedo v. SCI/On Trac.  Applicant was a truck driver for On Trac, and would arrive in her own car (with an On Trac logo) at On Trac headquarters every morning and begin her assigned routes and packages deliveries.  She wore a uniform with the company logo, had a regular schedule, and was not allowed to do delivery work for any other company.  Nor was she allowed to turn down an assignment from On Trac.  So, she claimed, she was an employee and entitled to workers’ compensation benefits.

On Trac, on the other hand, produced an Independent Contractor Agreement, which applicant signed by claimed to not have understood because of language difficulties (the agreement had not been translated into Spanish for the applicant).

The Workers’ Compensation Judge found (unsurprisingly) that applicant was an employee and not an independent contractor.  Defendant was unable to produce a witness to testify on its behalf, and the WCJ held that the defense failed to carry its burden to rebut the Labor Code section 3357 employee presumption.   The Workers’ Compensation Appeals Board denied reconsideration.

But, even though the issue of “meeting of the minds” and language barriers was present in this case, the bigger deal was that the facts were all in favor of an employment relationship and only a signed contract was available to show an independent contractor arrangement instead.  Unfortunately, California does not allow employers and employees to contract out of workers’ compensation, so simply designating an employee as an independent contractor will not do.

And therein lies the dilemma for many employers – each would like to avoid the liability involved in having an employee, but is unwilling to give up the control that independent contractors cannot and will not offer.

Have a good weekend, folks!

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More Liens Swept Aside with SB-863

March 27th, 2013 No comments

So, dear readers, ready for another victory-lap case over the lien claimants?

Last week, we discussed the case of Soto v. Marathon Industries, Inc., in which the Workers’ Compensation Appeals Board found that a lien claimant’s failure to pay the lien filing fee required by Labor Code section 4903.06(a)(4) at the time of the hearing (including two hours after the hearing is scheduled to start), necessitates a dismissal of that lien with prejudice.

The Sharon Meyer v. Target Corporation case didn’t turn out all that different.  In that case, a lien claimant sought reconsideration of the dismissal of its lien after the lien conference had come and gone.  In this case, the lien claimant paid the lien filing fee a week later, but that didn’t seem to help.

This panel of commissioners again held that “under Labor Code section 4903.06, subdivision (a)(4), the WCJ was required to dismiss [the lien claimant’s] lien with prejudice.” (Emphasis belongs to your humble blogger, exclusively.)

In other words, Soto was not a fluke and we can expect spring cleaning of the liens in the workers’ compensation system.  The holding in this case and in Soto provides a pretty thick broom with which to do the job.

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QME Arrested and Placed on QME Discipline List

March 25th, 2013 No comments

Once in a while, dear readers, your humble blogger peruses the QME Discipline List.  There we can see the applicant quack/hacks that are finally getting their come-up-ins and the reasonable, measured, defense-friendly (though totally unbiased) physicians that are being unjustly persecuted by the workers’ compensation system.

One case in particular caught this blogger’s eye – a certain physician from Santa Rosa has been suspended “until criminal case is resolved, pursuant to Penal Code section 23 and Labor Code section 139.2(m).”  It appears that Raymond Severt, M.D., met with Novato’s finest when “police … arrested … a man suspected of attempting to meet up with a 13-year-old girl for sex.”

The investigation is apparently continuing, but it doesn’t look good.

In any case, it’s always a good idea to glance at the QME discipline list once in a while, especially before picking who you’re going to kick off a panel.  If Dr. Severt is scheduled to evaluate the claimant in one of your cases, you may want to look into some alternative scheduling arrangements (ahem).

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Goldilocks and the Three QMEs

March 22nd, 2013 No comments

Believe it or not, there are still some old dinosaur cases roaming around that are using the pre-2005 dueling QME system.  Your humble blogger knows some attorneys that still long for the old days when QMEs were retained, armed to the teeth, and sent to battle to the death at the Board Thunderdome (two docs enter, one doc leaves!)

MDs fighting

But now we live in more civilized times, where applicants still choose their own QME (in the form of a treating physician), and defendants much take their pick from the stacked deck of panel qualified medical evaluators.  Generally speaking, only Asbestos matters and pre-2005 cases allow each party to retain its own expert.  (Although your humble blogger has heard that some Judges used to allow parties to pick their own QMEs if the Medical Unit dragged big, Medical feet.)

Recently, your humble blogger, in his search for the latest and greatest case developments, stumbled across a rare gem going over the limits of the QME dance.  In particular, how much Earth is an applicant’s attorney allowed to scorch by finding new QMEs to run up defendant’s bill?  Can Goldilocks, Esq., send six bankers’ boxes of medical records to a new QME every two months until she finds one that is “just right?” (Or until the bills to the defense are “just right?”)

Not so much.  Applicant’s counsel went through three QMEs in the case of Larry Wiacek v. Fujitec America, and wasn’t too happy when the workers’ compensation Judge wouldn’t let him use the third’s report.  Relying on McDuffie v. L.A. County Metropolitan Transit Authority (2002, en banc), the WCJ held that applicant’s counsel could not simply bounce from QME to QME at the defendant’s expense, but had to follow a set procedure – which includes seeking supplemental reports, deposing the QME, and ultimately seeking Judicial assistance in finding a new medical examiner.

In the Wiacek case, however, applicant just picked a new QME and moved on, leaving a wake of unfinished reports and unjustified bills for the defendant to pick up.

The WCJ in this case allowed applicant to present the reports of the second QME because the first did not provide an AOE/COE determination, and then the case got weirder!  The second QME (and I remind you, dear reader, that naming names is disfavored in this little corner of the Internet), found exposure to coccidioidomycosis infection while driving between the Bay Area and Los Angeles during his weekends away from the job-site in L.A.  (This started out as an asbestos claim, but turned into a claim of “valley fever)

The WCJ would not admit the reports of the third QME because applicant did not follow the McDuffie procedures before moving onto a third, and the second QME provided an AOE/COE determination.

The Workers’ Compensation Appeals Board denied applicant’s petition for reconsideration and incorporated the WCJ’s report.

Now mind you, dear readers, this case is important – there are applicant’s attorneys out there (and again, I won’t name names) who have a policy of costing defendants money: either through settlement or through litigation costs, those evil monsters who dare to employ someone in California are going to pay!  One way to do this is to drive up litigation costs: duplicative subpoenas, unnecessary document production to physicians and infinite supplemental report requests, and other tricks of a similar nature (no need to give people any ideas…)

It’s important to rein in such waste and the WCJ did a good job of it here.

As a side note, the WCJ also found that the injury fell under the scope of the going and coming rule, which is a pleasant result to see.

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So a Lien Claimant Walks Into a Bar (OUCH!)

March 19th, 2013 No comments

Once in a while your humble blogger speculates as to the thought process of lien claimants.  I imagine that at one point, the lot of them gathered together and agreed that the legislature did not intend to make lien filing fees mandatory, and the whole thing was a big misunderstanding.  After all, why would you require filing fees for the true intended beneficiaries of the workers’ compensation system… the lien claimants? (Welcome to the fantasy world of the lieners’ compensation system).

So, in case anyone thought the new rules regarding the filing of liens and paying fees were a joke, a gentle “gotchya!” from those humor-loving clowns in Sacramento… they’re not.  Labor Code section 4903.06(a)(4) requires all lien claimants to be paid up on their respective filing fees at the time of the lien conference.  More than that, the same section requires them to provide proof of such payment, or else they face dismissal with prejudice.

Some of the Southern California lien claimants didn’t get the memo (and by memo, your humble blogger means the flood of blog posts, articles, bulletins, conference topics, and every other imaginable source of news on the fact that lien claimants must pay filing fees or lose their ticket to the gravy train).  In the case of Jose Pedro Soto v. Marathon Industries, Inc., defendant filed a Declaration of Readiness to Proceed to a lien conference after the case-in-chief has resolved by compromise and release.

Well, the lien conference was scheduled for 8:30 a.m. on January 10, 2013.  The workers’ compensation Judge dismissed the lien claimants who failed to show proof of payment… until they scurried to their smart-phones and I-Pads and e-paid their filing fees (around 11:00 a.m.).

When the WCJ was presented with proof of this payment, the order was rescinded, so defendant filed for removal… and won.

The Workers’ Compensation Appeals Board issued a panel decision in which it ordered the dismissal, with prejudice, of those lien claimants that had failed to pay the lien filing fee by the time of the hearing.  Accordingly, subsequent payment of the fee does not cure the defect – lien claimants cannot avoid paying the filing fee to see if the defendant remembers to raise the issue, and then pay up later that day.  Even if the payment was only “subsequent” by less than three hours!

Now, this blog is not here to provide advice or guidance to lien claimants, so WCDefenseCA encourages them to re-affirm their commitment to having their liens dismissed – don’t file those fees, guys, you’re doing great!

But as for the defense community, you cannot pass up this opportunity to knock liens out of the park.  Your humble blogger is not prone to making threats, but if you do not raise this defense to every single lien at every single lien hearing or conference, I WILL HUNT YOU DOWN AND GIVE YOU THE FROWNING AND DISAPPROVING HEAD-SHAKING OF A LIFETIME.  SB-863 has given you an opened door, and if your defense doesn’t begin with an inquiry as to proper payment of filing fees, you’re trying to kick it down for no reason.

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WCAB to Hold Hearings for Proposed Rules

March 15th, 2013 No comments

So, are you tired of wishing away the days on how workers’ comp should work?  Do you wish that someone other than your cat would listen to your suggestions?  Have you had enough of nailing grievances to the WCAB doors?

Well, it looks like the Commissioners have had enough of that too.  The WCAB is holding hearings at the San Francisco Board on April 16, 2013, to discuss proposed amendments to the Rules of Practice and Procedure.

In a delicate and diplomatic way, the WCAB has suggested that comments be submitted in written form, rather than delivered in person, and would prefer comments be submitted to

There are countless people across California that are smiling to themselves right now, thinking “thanks to me, they prefer e-mailed comments now.

Are you planning on attending?

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SB 626 – Making an Ox of an SB-863 Bull

March 13th, 2013 No comments

Hello, dear readers! I hope you enjoyed your weekend. The sun was all smiles and the birds were singing without restraint, while under the streets of Sacramento, in the deepest sewers, the snakes were slithering their way towards SB-863’s crib, hoping to strangle it in its infancy. Is the new law to be a defenseless babe, or do we have a Heracles on our hands?

Senate Bill 626 seeks to undo some of the more interesting aspects of SB-863.  The bill, introduced by Jim Beall (D – Santa Clara County), would allow workers’ compensation Judges to overturn Independent Medical Review determinations (see Section 3), would allow chiropractors to remain the treating physicians for injured workers even after 24 visits (see Section 1), and allow for increases in impairment for psychiatric disorders (see Section 5).

Now, bear in mind, dear readers, that this bill was only introduced in late February, so it might be dead on the vine and more of a snowflake than an avalanche.  That being said, whatever our thoughts on how good of a reform SB-863 was, there are gains for employers found within, and we cannot cede territory captured at this point.

So here’s hoping SB-626 is more of a legislative pout than anything else.

WCDefenseCA does not, by any means, wish to imply that Senator Beall is a snake, or compare him to one – just using the Greek Mythology imagery to get the point across.

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Sacramento Moves to Limit Pro-Sports Comp Liability

March 8th, 2013 No comments

The Workers’ Comp thunderstorm in pro-sports paradise continues, as players and teams struggle over whether players can collect workers’ compensation benefits in California after playing one game or attending a training session here.

It looks like the Los Angeles Times has decided to focus its wrath and anger on Assembly Member Henry T. Perea (D – Fresno), for introducing Assembly Bill 1309 which would exempt professional athletes in the fields of baseball, basketball, football, hockey, or soccer if the employee is temporarily in the state if he or she spends less than 90 days in California in the year prior to the date of injury (whether specific or cumulative).

Far be it from your humble blogger to question the wise sages of Sacramento.  After all, he is but the humblest of the humble, both with respects to his blogging and his citizenship.  But, unlike the LA Times, this bill does not go far enough.

I might alter a child’s world by explaining to him that I’m not actually taking his nose, but I think my beloved readers have a firm grasp on the concept that California is not particularly business friendly.

I would submit to you, my readers, that this bill does not go far enough.  Instead of limiting itself to some sports, the bill should be expanded to include all visiting employees, whether here for a 10-day project or a 1-day conference.  Programmers and hospitality service specialists don’t make the headlines the way quarterbacks and goalies do, but how would you like to hire someone in North Dakota and have them attend a 3-day training seminar in California, only to claim a cumulative trauma immediately prior to retirement twenty years later?  And mind you, my dear North Dakota-an (esteemed gentleman or lady from North Dakota), you’ll be paying California dollars on the workers’ comp, not North Dakota dollars.

Right now, the professional sports teams are trying to get this thing passed in Sacramento, and they may or may not succeed.  Imagine if they can’t – imagine if the sports teams are stuck paying out the big bucks for each player looking for a retirement bonus.  At a certain point, wouldn’t it be cheaper to just boycott California games?

As grand as California is, every state is a good state for a training camp, and every state is a good state for a game.  The 49ers will just have to build a new stadium on the other side of the Arizona border, and the Raiders will have to host games on a floating stadium 10 miles out to sea.

Instead of sending our fearless governor to other states to make this state more attractive, perhaps we could start with baby steps – don’t punish non-California employers for visiting California (let alone moving here!)

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Recap of DWC 20th Conference

March 6th, 2013 No comments

Hello, dear readers!  Your humble blogger brings you news of the DWC conference held in Oakland on Monday and Tuesday.  As a side note, if you haven’t attended this conference, you really should – next year will probably have a few more answers than this year, and it is worth every dollar and every minute you put into it.

There were several interesting speakers, but no reception, so your humble blogger was even more humble as he tried to post on the goings on.

In any case, the following are some highlights from the lectures and speakers.  I’ve avoided naming names because some speakers asked that they not be quoted.

  1. Something horrible is coming, but we don’t know what…

The general consensus of the speakers was that they had no idea how SB-863 would play out, and the law leaves countless questions unanswered… which will be answered at trial and on appeal.  In any case, be ready to litigate just about everything!

  1. No more PDAs?

Adjusters should be aware that there will be no more PD advances if an offer of regular, modified, or alternative work has been made until there is an award.  So the worker should go from getting TTD to a paycheck, rather than TTD to a paycheck and PD.   (See Labor Code section 4650(b)(2).)  It remains to be seen if merely making an offer is enough.  For example, if the applicant has been terminated for cause, but the employer could accommodate him or her, must advances still be made if an offer has been communicated?

  1. “I love new forms!” said no one ever

There is a new form available to request medical treatment.  So adjustors should keep an eye out for incomplete forms, because the incomplete form does NOT trigger the Utilization Review timeline.  However, the claims adjustor or examiner will be require to document his or her attempts to obtain the missing information.  So send an e-mail or fax returning the form marked “incomplete” and ask for the missing info, and then you can take your finger off the UR button.

  1. The cat-like MPN now has nine lives

California Labor Code section 4616.3(b) states that an MPN is not made invalid solely by an employer’s failure to post proper notices.  Realistically, even if proper notices were posted, the difficulty and expense in litigating and proving that the notices were posted makes them effectively not posted.  One speaker recommended having employees sign a document acknowledging receipt of notice of the MPN.

  1. Never mind about that Valdez thing

Several speakers made the point that the issue before the California Supreme Court in the Valdez matter is now moot – Labor Code section 4605, as amended, allows non-MPN treating physicians to treat injured workers at the workers’ expense.  Furthermore, the report can be used, but cannot be the sole basis for an award.

There’s too much good stuff to go into everything, which is why you should attend next year!  But here’s the biggest thing to take away from the conference – all of the authorities, from attorneys to judges and everyone in between, kept chanting the mantra “I don’t know.”  No one knows how everything is going to work out, and your panel of attorneys is going to find out for you through litigation.

Don’t be scared by this, get excited – this is yet another opportunity to invest some time and effort and aggressively shape the landscape of workers’ comp until the next reform.

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Are you at the Oakland DWC Conference?

March 4th, 2013 No comments

Hello dear readers!

Your humble blogger is happily attending the DWC conference in Oakland today.  If you’re a twitter follower, please keep an eye out as I’ll try to tweet highlights here and there.

If you’re a fan of the blog and not intent on doing me bodily harm, please introduce yourself and say hello – I’d be very happy to meet you!

If you’re not a fan and/or intend to do me bodily harm, I’m not really attending the conference, and there are lots of people who look like me, so there…

If you’re wondering how to spot me, I will be surrounded by an aura of professionalism and legal competence.  I will also be the most humble of bloggers there.  Additionally, you can check the name tag.

See you there!


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