WCDefenseCA

As Assembly Bill 1309 sits on Governor Brown’s desk, hoping to bar a whole mob of professional athletes from the hallowed halls of the workers’ compensation venues, one group of workers get to continue enjoying California workers’ compensation benefits for non-California work.

For your consideration, I bring to you the case of Jessie Kenlaw v. Houston Comets.  Ms. Kenlaw worked as basketball coach from 1978 through 2008, and visited California a few times in 2007.  The main argument raised in this case was a jurisdictional one: defendant argued that injurious exposure in California is not sufficient for invoking jurisdiction – there has to be an actual injury in California for the defendant to get sucked into California’s meat grinders.

The argument is sensible enough – it’s not right to invoke California jurisdiction for a workers’ comp claim when the vast majority of the “exposure” is outside of California.  After all, we’re not talking about a situation in which the worker was in California for one day out of a 20 year career, but there was a specific injury here.

The Workers’ Compensation Judge, and the Workers’ Compensation Appeals Board, both rejected the argument.  The applicant’s burden is only to establish through substantial medical evidence that her work activities were a contributing cause of her injury, and in cumulative trauma claims, that’s pretty easy to do, because there’s nothing specific that causes the injury, but rather the job in general.

The facts show that applicant coached three games in California, and for each game she arrived in California two days early.  She participated in practice sessions and did coaching work.

But we’re talking about a cumulative trauma period from January 1, 1978 to July 1, 2008.  And for nine days (out of 11,139, or 0.08%) applicant now invokes California jurisdiction.

Although without much legal support, the defense put forth a good theory – it’s roots were in logic, justice, and basic fairness.

By the by, dear readers, if you’re at all concerned about the businesses leaving California, you should also look at these decisions as a reason why employers might not want to send their workers into California, even for a little while.

Perhaps at the next legislative reform happy hour, someone could pipe up about amending the Labor Code to require significant injurious exposure for workers temporarily in California before allowing workers’ compensation jurisdiction to be invoked.

That would be a… wait for it… slam dunk!

A Modest Proposal on the Broken QME System

No, dear readers, your humble blogger is not proposing that we eat our beloved QMEs.  Nor am I proposing that we go back to those wonderful days when each side would name its champion and let the doctors battle to the (intellectual) death, as was the case for pre-SB-899 matters.

This truly is a modest proposal: let’s pay QMEs more.

Now, dear readers of the defense community, before you delete my e-mails, unsubscribe from my blog, and demand the immediate return of Cognac and cigars that you so generously sent my way (hint, hint), hear me out.

Time is money, and doctors are always short on both.  There are bills to pay, patients to see, etc., etc.

So why not make it worth their while to dedicate more time to the files and applicants and cases?  What’s more, if we put a little more cheese in this brutal mouse-trap that is workers’ compensation, perhaps we could have more doctors persuaded to go through the insane hoops of becoming and remaining a QME.

We’d have fewer repeat players, less grudges, and a greater number of competent physicians participating in this system.  Besides, look at your benefits printout- the biggest costs are not the QME fees, and a few more bucks in that department could bring us better reports (which don’t need depositions to cure), and probably lower ratings based on up-to-date medical findings.

Don’t get me wrong, dear readers, there are great QMEs out there, but the non-workers’ comp demands on a physician’s time, when coupled with the additional expense and delay of the QME application process, make it harder for those physicians unfamiliar with the system to jump into the pool that the Medical Unit keeps nice and warm behind its high walls.

Now, your humble blogger could be wrong on this one, but it looks like 1999 was the last time the regulations were amended to change the monetary value of each unit of time.  Using the Bureau of Labor Statistics inflation calculator, 12.50 in 1999 has the same buying power as $17.55 today.

In other words, to keep pace with inflation, the QME pay should have gone up 40%.  That’s not, by the way, to keep pace with the cost of increased medical school tuition or cost of living in California, which have gone up much faster than the rate of inflation.

So the next time the legislature decides to crack open the wine cellar and engage in some good-intentioned reform, why not slip in a raise for QMEs?  After all, it’s the defense community that’s footing the bill.

In the mood for a crackpot legal theory having to do with LC 5403?  Take this one with a grain of salt folks, this one is for the truly desperate.

There are a variety of reasons why an applicant might not report an injury once it occurs.  The worker might be afraid of the consequences of reporting the injury (work restrictions leading to unemployment), the worker might think that the effects of the injury might go away, or in a majority of cases (if you’re a cynic) the injury never happened, and the claim is in response to some adverse job event (reprimand, firing, etc.)

Well, Labor Code section 5400 requires reporting of an injury to the employer within 30 days of its occurrence, and of course, this strict rule is rendered toothless by Labor Code section 5403, which requires the employer to have suffered prejudice as a result of the delayed notice.

Recently, the workers’ compensation Judge in the matter of Edmonson v. City of Los Angeles, wrote in his report and recommendation on petition for reconsideration that the defendant, for the first time in its petition, “asserts the issue of prejudicial lack of notice, a defense which [the] WCJ has not seen asserted since the 1970’s … That is an affirmative defense, and the petitioner would have had the burden of proving it, had it been raised at trial.”

Now, dear readers, consider this – if the defendant bears the burden of proving that “the employer was not in fact misled or prejudiced by such failure” to report the injury in a timely and accurate manner, how is one to take advantage of this law?  Well, not very often, as the WCJ in Edmonson noted.

But, for some reason, the law remains on the books reform after reform after reform.  Why leave it there at all, when legislature after legislature has taken liberties with every other aspect of the Labor Code?

The law is still on the books, and should be explored under the right facts.  Think of the benefits of diligently and thoroughly investigating an injury which is reported as soon as it happened.  Witnesses can be canvassed and interviewed; recorded statements can be taken while they are still fresh in the witnesses’ recollection; and the injured worker can be given proper medical care and job duties that will prevent further injury or aggravation.

Now, put that investigation on ice for 31 days.  Perhaps some of the witnesses (likely to be other employees) are not employees today.  Perhaps they have moved away or left the employ of the defendant on bad terms.  Perhaps their memories aren’t that great.  The injured worker thought he could just “tough it out” and ended up hurting himself more and more and more, so instead of a simple cut, you have an infection; instead of a sore back, you have a disc protrusion; instead of broken pinky toe, you have hip and spine and psyche and sleep and sexual dysfunction and bilateral lower extremities.

And here’s another thought – look closely at the language of section 5403: “the failure to give notice under section 5400 … is not a bar to recovery under this division if it is found as a fact in the proceedings for the collection of the claim that the employer was not in fact misled or prejudiced by such failure.”

Can we interpret this section to mean that a claim can be denied based on Labor Code section 5403 until the fact is established in a proceeding that the employer was not misled or prejudiced?

Case law on this section is pretty slim pickings, and rightly so – most real injuries are very visible, and the employer almost immediately has some form of notice (actual or constructive).  A foreman seeing the injured worker in pain is probably enough.   But in those rare cases where the employee conceals the injury until day 31 or later, perhaps the defense should be explored.

Have you had any luck with this? Please let me know…