Archive for October, 2013

WCAB Orders Credit (Where Credit is Due)

October 30th, 2013 No comments

Your humble blogger learned a long time ago to give credit where credit was due.  After all, the law in general dislikes windfalls and encourages disgorgement of unearned benefits.  Workers’ compensation law, not so much.

Credit is a tricky issue in comp law, and many defense attorneys find themselves fighting an uphill battle when money goes into the applicant’s left pocket instead of the right (or vice-versa).

Take, for example, the case of Lumb v. City of Chula Vista.  There, the injured worker claimed a cumulative trauma as well as a specific injury to the same body parts.  Defendant had overpaid permanent disability benefits in one case by roughly $2,500, and the WCJ was inclined to let the injured worker keep the extra money while making the defendant pay the same amount on the other case.

So, because of a mislabeled check, or the wrong claim number, the defendant was set to be out an extra $2,500, and the injured worker was set to receive that amount.  That seems fair, right?

The WCJ reasoned that the injured worker would have received more money prior to the decision in Benson, and the WCJ is merely mitigating the loss caused by that decision. (“It is clear that Applicant would have received more permanent disability prior to Benson and that Defendant received a monetary benefit regarding the overall amount of permanent disability owed, after the application of Benson.”)

Well, the defense didn’t think so, and it filed a petition for reconsideration, seeking to have the credit applied.  The Workers’ Compensation Appeals Board reversed the WCJ.

Relying on Maples v. WCAB (“Such resulting overpayments of temporary disability indemnity are typically small and do not result in any significant interruption of benefits.  Equity favors the allowance of such credit against permanent disability indemnity”), the panel reasoned that this was a relatively small amount and the injured worker was still going to receive plenty of permanent disability benefits as a whole.

But, that being said, we’re talking about a $2,500 credit which will now have to be reduced by the cost of the petition for reconsideration.  So, the injured worker gets no additional funds, the employer gets back less than what it should have, and there was delay and uncertainty in resolving the case.

Perhaps the proper thing to do here would have been to settle the matter of credit?  But, that’s a hard call to make: some defendants are willing to invest the time and money to develop a reputation for protecting their rights, and some don’t think the attrition is worth it.

Some have asked if there is a way to get the money back without seeking credit.  After all, if the injured worker has received benefits to which he is not actually entitled, don’t we have a case for unjust enrichment?  Well, good luck – even if a Superior Court Judge were disinclined to kick your case to the curb noting that whole exclusive jurisdiction matter, injured workers fighting tooth-and-nail for workers’ comp benefits don’t tend to have a lot of cash on hand for one to recover.

Well, at least in this case, the WCAB was willing to give credit where credit was due.

Categories: Uncategorized Tags:

Owe Money to Implantium? Put the Check Book Away

October 28th, 2013 No comments

Welcome back from your weekend, dear readers.  Your humble blogger is aware that many of his readers eagerly rush to get to their offices on Mondays, Wednesdays, and Fridays so they can read his blog posts before starting their day.  Well, if you’re one of those folks – good news!  Check your to-do list or the next few weeks.  Does the word “Implantium” appear anywhere?

If you were preparing to write a check to the durable medical equipment provider (and frequent lien claimant) Implantium, perhaps you should put a pin in that idea.

The former CEO of Implantium has plead no contest to felony insurance fraud chargers.  Implantium apparently overcharged Santa Clara County and the City of San Jose (both self-insured) by faking the amounts paid to manufacturers for surgical spinal implants.

As my beloved readers may recall, a previous blog post noted when charges were first filed.  Furthermore, an EAMS search reflects about 10 liens filed by Implantium for a total of more than $336,000.

Look through your old bills – perhaps it might be a good time to get some of that money back, or at least seek credit against any outstanding liens/bills.

A hearty congratulations to the Santa Clara County District Attorney and his hard-working (and often unmentioned) deputy DAs who helped make this happen.

Categories: Uncategorized Tags:

Do Pinky and the Brain need Workers’ Compensation Insurance? (Part 3 of 3)

October 25th, 2013 No comments

So, dear readers, we learned that the ambitious and totally unlucky laboratory mice, Pinky and the Brain, are probably forming a partnership during their nightly ventures to take over the world.  We have also reckoned that, in all likelihood, they are not covered by the requirement to purchase workers’ compensation, and won’t be covered by any policy unless they go out and buy it themselves.

However, does that mean that the business-killing monster known as workers’ compensation does not apply to partners in partnerships?  After all, if your humble blogger was hired to build a house, and wanted to hire a dozen or so workers to get the job done, couldn’t he just have the dozen workers form a partnership and hire the partnership?  What if they were all independent contractors forming a partnership?

Not really.  After all, Labor Code section 3360 holds that workers forming a partnership for a particular piece of work are employees of the person having the work done, unless the workers purchased workers’ compensation insurance for themselves.

In fact, the situation was explored in the case of Jose Guzman v. Workers’ Compensation Appeals Board (1984).  There, Guzman worked as a tree pruner for one company, and his cousin was a head gardener for a hotel.  Guzman’s cousin often contracted for specific jobs on weekends and Guzman helped him.  For one job, Guzman’s cousin offered to split the fee 50-50, and each provided some of their own tools to get the job done.

On that job, Guzman sustained an injury and filed a claim against the alleged “employer,” a gas station for whom the work was being done.  At trial the workers’ compensation Judge found that Guzman and his cousin had formed a partnership for the specific job, and so Section 3360 applied to place liability on the gas station for the injury.  The WCJ ruled that independent contractor status did not negate section 3360.

The Workers’ Compensation Appeals Board reversed, reasoning that Guzman, his cousin, and the partnership were all independent contractors and that, because Guzman and his cousin had done this type of work together for other customers before (and had not formed the partnership just for this one job), section 3360 did not apply.

The Court of Appeal, on the other hand, agreed with the WCJ.  Recognizing that Guzman probably qualified as an independent contractor, the Court of Appeal still held that even if the partnership is an independent contractor, section 3360 still applies. Furthermore, the Court of Appeal held that a history of such one-job ventures does not negate the elements of section 3360.

So, dear readers, to sum up – Pinky and the Brain, so long as they truly are partners, don’t need to get workers’ compensation insurance for themselves while they are trying to take over the world.  But as for Brian and Mr. Pinkman?  It might make it easier to sell their services if they can assure whoever is hiring them that they come with insurance provided.

As for the folks out there considering hiring someone for a particular job, be very careful about the effect of section 3360 – even independent contractors can suddenly be entitled to workers’ compensation benefits if they form a partnership just for this particular job.

Categories: Uncategorized Tags:

Do Pinky and the Brain need Workers’ Compensation Insurance? (Part 2 of 3)

October 23rd, 2013 No comments

Last time we talked about our good friends, Pinky and the Brain.  To the extent that these two maniacal laboratory mice cooperate in repeated efforts to take over the world, are they forming a partnership?

This is a significant question – if their relationship should be one of employer and employee, rather than partner, the one unlucky enough to be labeled the employer suddenly loses the protections of Labor Code section 3351(f), and instead finds himself to be an illegally uninsured employer.  On the other hand, if they are partners, when Pinky inevitably gets crushed by a laboratory widget as part of Brain’s plan, Brain is in the clear!

The Uniform Partnership Act, section 202, defines partnership as an “association of two or more persons to carry on as co-owners of a business for profit.”  In California, there is an endless wealth of advice about good practices involving partnership formation, but there is no requirement to file any paper work or registration work as part of a general partnership.  A firm handshake and some good intentions is more than enough.

In fact, California Corporations Code section 16202(a) specifically holds that “the association of two or more persons to carry on as coowners a business for profit forms a partnership, whether or not the persons intend to form a partnership.” (Emphasis added.)

But, recall, dear readers, that in the writ denied case of Aubrey v. WCAB (Larrea) (1996), an employment relationship was found even though the alleged employer and the deceased (alleged) employee had discussed forming a partnership and the fee for the fencing job during which the deceased lost his life was to be split 50-50.

Do Pinky and the Brain plan to be co-owners of the world once they take over?  Or is Pinky going to be just one of the favored subjects to Brain’s rule?  Can ownership of the world count as a business for profit?  Unfortunately, the cartoon was cancelled long ago, so we may never know.

Assuming, however, that Pinky and the Brain (or Brian and Mr. Pinkman) intended to rule the world together, then, even without intending to do so, they could find themselves in a partnership.  That means that neither one would be covered by anyone for workers’ compensation, right?

Without specifically electing to do so, they would be naked against the injuries of the workplace.

However, there is one particular code section that militates against closing the workers’ comp books once the word “partnership” gets mentioned.

Categories: Uncategorized Tags:

Do Pinky and the Brain need Workers’ Compensation Insurance? (Part 1 of 3)

October 21st, 2013 No comments

Gather round, dear readers, as your humble blogger will relate to you the story of Pinky and the Brain.  As related in a 1990s cartoon with a hilarious premise and exceedingly witty dialogue, Pinky and the Brain were two laboratory mice who spent their evenings, without fail, desperately trying to take over the world.  Each brought to the [laboratory] table a different set of skills (“one is a genius, the other’s insane.”)

In each episode, Brain and Pinky came up with clever plots by which they would harness the masses of the world under their iron rule, only to have their plans fall to pieces at the last moment, often with serious injury as a result, although the signs of these distresses were often gone by the start of the next adventure.

Cartoon rodents and hilarious situations aside, do these two need workers’ compensation coverage?  After all, in our crazy world, it can just as easily be Brian and Mr. Pinkman trying to improve their lots in life.  Whether two maniacal rodents or desperate blue collar workers, does the existence of a joint venture into the marketplace prompt the need for workers’ compensation insurance (or self-insurance) in California?

Now, your humble blogger’s dear readers would be in for several blank pages if the answer to this question could be reached in Part 1 of 3.  The answer is, as always, “it depends.”

Let’s start with the basics.

California Labor Code section 3700 requires every employer within the state to secure payment of compensation by (1) getting insurance; or (2) self-insuring as a group or an individual employer.  Section 3300 includes in its definition of “employer” every person which has any natural person in service.  And, of course, an employee is defined as every person in the service of an employer. (Section 3351).

Now, pay close attention to section 3351 – it provides the basis for the exceptions invoked by so many partners and corporations for cutting overhead costs in their operations:  Subsection (f) allows all partnerships and limited liability companies to opt in to the workers’ compensation system, although they start out outside of it by default (“the partners or managers shall come under the compensation provisions of this division only by election”).

So, partners have to choose to be covered by workers’ compensation, and have to obtain coverage, while employees do not.  So the next question is: what is a partnership?

Categories: Uncategorized Tags:

Court of Appeal Rules: Negligence is not Serious and Willful Misconduct

October 18th, 2013 No comments

My dear readers will recall, especially after their first cup of coffee for this morning, that their humble blogger once cracked a proverbial egg of wisdom for their review in the form of a multi-part blog-post on serious and willful misconduct.  Well, that topic has seriously and willful reared its ugly head once more, this time in the form of an (unfortunately) unpublished Court of Appeal decision.

The CoA reversed the holdings of the Workers’ Compensation Appeals Board and the Workers’ Compensation Judge, holding that since “no substantial evidence of knowingly wrongful conduct on the part of [the defendant]” was to be found, the award must be annulled.

The case is that of Jorge Mora v. CLP Resources, Inc.  Jorge Mora was a temp carpenter in the employ of CLP, who was sent out to a job site with a series of safety problems, including a table saw not secured to a table and with no safety guard on the saw.  By the third week, Mr. Mora had attempted to report these safety issues to his temp agency (at least, according to his trial testimony, which appears to be in conflict with his deposition testimony) but was not able to report the specific safety problems.

Prior to his starting the job, a CLP safety inspector had been to the site, but had not noticed anything wrong.

Unfortunately, Mr. Mora lost his balance while working one day and placed his hand on the saw, sustaining cuts to his left hand.

In addition to his workers’ comp claim, the applicant sought increased benefits under Labor Code section 4553, alleging that CLP’s serious and willful misconduct was its willful failure to provide a safe place to work.  At trial, the Workers’ Compensation Judge found that the testimony of a CLP witness as to the inspection of the work site was “questionable” and found that CLP had engaged in serious and willful misconduct when it failed to adequately inspect the jobsite.

In rejecting this finding, the CoA reasoned that 4553 requires the serious and willful misconduct to be on the part of an executive, managing officer, or general superintendent of the corporation.  The CoA found that there was no findings (or evidence to support a finding) that CLP had specific knowledge of a dangerous condition – it’s inspection did not reveal it, and Mr. Mora’s comments were also vague enough so as not to put CLP on notice of the condition.

To sum up – the target in this case was the temp agency that did an inspection of the job site, found nothing wrong, and allowed its employees to go there.  Hypothetically, the temp agency was negligent in how they inspected the site.  And, come on folks, who inspects a factory when it is in “shut down” condition?  Who inspects a construction site employing men using power tools when there are neither men nor power tools on the site at the moment?

That being said, negligence is not serious and willful misconduct.  Remember, all those of you on the applicant side of the room, Labor Code section 4551 would serve to reduce the recovery of almost every single injured worker, as you could make a claim for employee negligence in almost every single workers’ comp claim (lifted with your back instead of your knees? That’s a Negligence.  You weren’t holding the steering wheel at “10 and 2”? That’s a Negligence.  Didn’t sit at your desk with proper posture?  That’s a Negligence.

Now, here’s another fun thought: this is not the case where a worker blindly goes into a dangerous situation intentionally created by an evil employer.  This is a case where a 13-15 year veteran of man’s war on wood (carpentry) was aware of a dangerous situation, knew it was dangerous, and should not have continued to work there.  If CLP didn’t want to hear it, as he claims, he should have declined to willfully and intentionally place himself in harm’s way.

But he didn’t.

He was warned that work was hard to come by and he decided to willfully expose himself to a serious work condition where the likely result was his own harm.

If anything, CLP should have explored turning the Serious and Willful table (carpenters can make tables, right?) back on Mr. Mora.

Now, let’s take a sip of the reality Kool-Aid.  No one will ask Mr. Mora what he did going back to that work place when he knew it was so unsafe, because he will explain “I needed the money” and everyone will understand.

Of course, when that same reason is given by an employer that can’t afford to buy workers’ compensation insurance, it is drowned out in the calls for the employer’s blood.  After all, no one deserves more contempt or hatred in California’s workers’ compensation system than someone who tries to create jobs for his fellow Californians.  (Please note, dear readers, your humble blogger is not advising you to violate the law or operate without workers’ compensation insurance.  He is just commenting on the lack of sympathy a desperate small business owner receives as opposed to a desperate employee.)

Just a thought, dear readers, just a though.

Categories: Uncategorized Tags:

Why Not Let Nurse Practitioners Become PQMEs?

October 16th, 2013 No comments

Here at the humble blogger institute, we are constantly at the forefront of new ideas which, if implemented, will be very successful.  Assuming, of course, that success is measured in the goodness of intentions, and not in any sort of results.

Right now, the panel QME system, to borrow language from the youngins, “sucks.”  It takes six months to get a panel, the Medical Unit will use any possible excuse to kick your panel request to the curb (letting the wrong done you by the treating physician stand for yet another six months), and the pickings on the panel itself can be slim depending on where you are – pretty soon, you’re dealing with the same faces over and over again.

So, if we’re not willing to put more cheese in the workers’ comp mouse trap by paying QMEs more (and attracting new physicians to the game) perhaps we need to embrace the growing trend in the general medical community: let’s open the door to nurse practitioners.

In some states, nurse practitioners can prescribe medication, open their own practices, and generally treat and refer patients to care.  How hard will it be for a nurse practitioner to take measures as directed in the AMA Guides and apply them to generate an AMA compliant report?  Seriously, folks, we have attorneys and adjusters that are practically experts at AMA Guides and Almaraz/Guzman – a nurse practitioner should be even more capable than us, or at the very least, capable enough.

Also, Nurse Practitioners graduate with significantly less debt, and so can take jobs that don’t pay as much while still paying their bills.  So, while a doctor who is 5 years out of 30 in paying off student loans might think that his or her time is better spent seeking more lucrative engagements, a nurse practitioner can afford to take on the QME jobs for the QME paycheck because of the lower overhead.

Currently, Labor Code section 139.2(b) allows appointments “if the physician is a medical doctor, doctor of osteopathy, doctor of chiropractic, or a psychologist” but not a nurse practitioner.

Now, your humble blogger understands that some people have reservations about nurse practitioners.  Doctors have long held a very esteemed and respected position in our society.  Some might be hesitant to deviate from this cultural authority.  Others, particularly in the defense community, might be concerned that nurse practitioners would erroneously rely on subjective complaints without verifying the objective signs of impairment necessary for many ratings.

That being said, your humble blogger suggests that this can be remedied with proper training and screening.

So, what do you think, dear readers?  Is it time that the world of Workers Compensation joined in the dawn of the Nurse Practitioner?

Categories: Uncategorized Tags:

WCJs Are Not To Act as Advocate for Represented Party

October 14th, 2013 No comments

Welcome back from your weekend, dear readers.  I know we it has become a cultural norm to hate Mondays, so I bring you this special treat that will surely lift your spirits and restore some faith in humanity that is forgivably lost from repeated exposure to California’s workers’ compensation system.

The case is that of Adam Truitt v. County of San Diego.  Deputy Truitt was employed by the San Diego County Sheriff’s office for over 20 years, during which time he sustained an injury in the form of Lyme disease.  After a trial, based on the reports of the primary treating physician and the qualified medical evaluator, applicant was found to have sustained a 0% permanent impairment with a need for future medical treatment.

Effectively, the Lyme disease caused some symptoms, but did not in any way impair applicant’s ability to perform his job duties.  However, there was a concern, expressed by the primary treating physician, that the stress of applicant’s job could cause flare-ups and worsening of the Lyme disease.

The panel QME did, however, provide an Almaraz/Guzman rating of 24% whole person impairment, but this finding was rejected by the workers’ compensation Judge because the panel QME did not provide sufficient reasoning or justification for an A/G rating, nor did he explain why the particular rating he provided was appropriate.

The split panel affirmed the WCJ’s decision, but the dissent would have had the matter returned to the WCJ to develop the record.

Dear readers, your humble blogger does not expect his sensible and honest readers to stand and cheer because a sheriff’s deputy got Lyme disease.  Instead, the reason to celebrate is the Judge’s opinion.

In his report and recommendation on petition for reconsideration, the WCJ addresses the issue of his declination to order development of the record after the QME failed to meet the requirements of an A/G rating.  “This may appear to be harsh (sic) result in this case, but it is not the WCJ’s responsibility to correct the shortcomings of the doctor’s report, when the applicant is properly represented by competent counsel.”

In other words, the applicant could have deposed the QME or asked for a supplemental report, all on the defendant’s dime, but failed to do so.  The applicant could have objected to a Declaration of Readiness to Proceed, or brought up the issue of developing the record at the MSC.  But that’s not what happened.  Applicant rolled the dice and tried his luck at trial, and lost.

Your humble blogger’s favorite part of the report?  “It is not the role or responsibility of the WCJ to further develop the record when in so doing, the WCJ then becomes the advocate for a party, especially when the party is represented by ostensibly competent counsel … There is no doubt that applicant has a serious medical condition.  However, it is not the responsibility of the WCJ to step in and become an advocate.  That responsibility lies with applicant’s counsel.” (Emphasis added, with pleasure.)

That last part should be chanted as a mantra for every potential attorney that ever even thinks about entering the world of workers’ compensation, long before aspirations to the WC Bench appear.  The Judge is not an advocate for a represented party – the advocate is the advocate for a represented party.

So, the takeaway from this case?

Evaluating physicians must meet the requirements set out in A/G to have an admissible alternative rating; and

The proper role of the Judge is not to be an advocate for one party or another.  Otherwise, we can expect the Workers’ Comp hearing rooms to look like this:


Categories: Uncategorized Tags:

Non-CA Professional Athlete? NO CA COMP FOR YOU!

October 11th, 2013 No comments

Good news, dear readers!  After a long uphill battle, several angry articles from applicants’ attorneys, and the temporary attention of the non-workers’ compensation world, Assembly Bill 1309 has received that coveted sign of approval – the Brown mark signature.

For those just tuning in and not inclined to read through the prior posts on the topic, AB-1309 is a response to the epidemic of cumulative trauma claims by professional athletes who have minimal contacts with California, sometimes as little as one game.

Governor Brown has signed AB 1309 into law.  Starting September 15, 2013, cumulative traumas sustained by professional athletes of certain sports, namely baseball, basketball, football, ice hockey, or soccer, will be excluded from California’s compensation system if less than 20% of the “duty days” of the last year of employment was spent in California.

Section (d)(1) provides an exception if the athlete spent at least 20% of his or her duty days in California or working for a California team; AND has spent less than 7 seasons working for non-California teams.

Here’s an interesting thought – do coaches count as athletes?  The law doesn’t say (“the term ‘professional athlete’ means an athlete who is employee at either a minor or major league level in the sport of baseball, basketball, football, ice hockey or soccer.”)

Also, AB-1309 took care to leave several prior decisions untouched, including Bowen v. WCAB, Wesley Carroll v. Cincinnati Bengals, and Dennis McKinley v. Arizona Cardinals.

All in all, a great send-off for the weekend, no?

Categories: Uncategorized Tags:

Copy Services Fee Schedule? Yes Please!

October 9th, 2013 No comments

Alright, dear readers! Put away your IMR forms.  Drop those Valdez briefs.  Forget all about your treatment-only psyche claim.  It’s time that we look at the true heart of the SB-863 reforms: copy service fee schedules!

That’s right, good people of the Workers’ Compensation world, we’re going to rein in the copy services.

If you’re unfamiliar with the scam, it goes like this: when the defendants want to subpoena records, they’re going to look at the price tag for the services (because they’re the ones paying for it).  So if Jack’s Coy Copiers decide to provide a $900 bill for 25 pages of copies, they won’t be getting any more business from Insurance Co. X.

Applicant’s on the other hand, want the copy service to be as expensive as possible.  If you are an efficient, honest, and cheap copy service, the applicants’ bar doesn’t want anything to do with you, because you’re only getting half the job done… that half being subpoenaing and copying records.  The other half is inflicting pain on the defense – letting them know that this will be yet another cut in their litigation budget because they had the gall not to stipulate to 100% PD at the first sign of industrial paper cut.

So, while the defense-preferred copy services find themselves in an arms race to the bottom of the price bracket, the applicant-preferred copy services find themselves in a bidding war to the top.  Note, dear readers, that the basic ideas of free market economics are present in the regulated world of workers’ compensation as well.  If you look at the fee applicants attorneys are allowed to charge for their “services” during depositions, you can see how out of touch with reality that market is.

Well, SB-863 specifically provided for a reasonable fee schedule to be established for copy services (the administrative director and the Commission on Health and Safety and Workers’ Compensation were to do a joint project here).  Well, the CHSWC has come through, and now welcomes public comment on their proposed flat-fee schedule for a set of records up to 1,000 pages.

The report proposes that the first 1000 pages be charged at $103.55, with additional sets available electronically for $5.   Surprisingly, the report does not make a recommendation for electronic-only production.  For example, your humble blogger likes to keep a copy of all records on his computer, so if the subpoenaed records come in paper form, into the scanner they go.

Your humble blogger’s suggestions:

  1. Allow a smaller fee for digital-only production; and,
  2. Allow service of the subpoenaed records in the same format ordered by the subpoenaing party (so if I order it on CD, the other side should be satisfied with getting a CD).

Overall, though, this is a step in the right direction: here’s hoping this approach is adopted, and a bit of water is thrown on the Scorched Earth policies of some applicants’ attorneys.

Categories: Uncategorized Tags: