Archive for November, 2013

Social Security Finding of Incapacity Sufficient for Death Benefits

November 6th, 2013 No comments

Death benefits – hardly a cheerful subject, and made no less gruesome by the fact that, as the body departs, the haunting specter of dependent benefits lingers.

Take, for example, the recent writ denied case of Jamie Xelowski (Dec.)/J. Campbell v. Community Health Network.

The facts are pretty simple – Jamie Xelowski sustained an industrial injury while employed by the Community Health Network/City and County of San Francisco, and, unfortunately, passed away as a result of her injury.  Her daughter, J. Campbell (“JC”), sought benefits under Labor Code section 3501, which provides that a child of any age found by any trier of fact to be physically or mentally incapacitated from earning, shall be conclusively presumed a total dependent.

And, as Labor Code section 4703.5 provides, in additional to the total death benefit for all of applicant’s dependents, the “physically or mentally incapacitated child” is entitled to temporary disability benefits until his or her death.  In short, a defendant is better off having an injured worker be found 100% permanently disabled rather than pass away.  Yes, yes, I know – I don’t like writing about this stuff too much for the very reason that it makes your humble blogger feel dirty for calculating how to minimize liability by wishing for one death or another.

So, back to the Xelowski case – JC had sought and received social security benefits in October of 2010, after her application was initially denied on May 5, 2010.  JC had appealed the first result, and her case was reviewed by an analyst and a physician.  There was no appearance on the part of JC at any Social Security Administration Hearing.

JC argued that the finding by the Social Security Administration triggers the effects of Labor Code section 3501, in that she is “a child of any age found by any trier of fact … to be physically or mentally incapacitated from earning.”  Defendant, not wanting to be stuck with an employee’s daughter’s lifetime of temporary disability benefits (it’s like having an employee on the payroll but not getting any work out of him or her) decided it might be worth a billable hour or two to fight.

The WCJ was persuaded – what happened before the SSA was the equivalent of a Panel Qualified Medical Evaluation – there was no judicial officer involved.  So, while JC might still prove her incapacity, mentally or physically, the presumption was not there yet.  Additionally, the finding still allowed JC to earn some income, so this finding did not satisfy the requirements of 3501.

Well, the WCAB didn’t agree – the panel of commissioners found that the Social Security Administration’s finding of disability triggered section 3501.

Now, your humble blogger has a bone to pick, but not with this particular case.  The Commissioners properly  applied section 3501, as it is, and when your humble blogger has to feed the meter in San Francisco, he can explain to his visiting friends why the meter makes more per hour than he does (San Francisco is self-insured, after all).

But, the proverbial bone your humble blogger has to pick is with the language of the statute itself.  Section 3501 conclusively presumes a fact (mental or physical incapacity) without affording the defendant fair notice of a hearing and an opportunity to be heard.

Picture, if you will, some poor unfortunate soul attending a hearing before the Social Security Administration, with proof of physical or mental incapacity, and some attorney like your humble blogger kicking down the hearing room doors and demanding to be heard because the poor soul’s mother or father works for his client.  “Her mother might die on the job, some day, and I want to make sure you don’t make a ruling that would affect us…”

Exactly – insanity.  The conclusive presumption should be done away with – if a person is found incapacitated from earning, then those same documents can be used to prove the case again before a workers’ compensation Judge.  After all, the SSA is giving away other people’s money, and might not be as zealous in its defense as a client with a million dollars on the line (picture $500 per week for 40 years).

If there is time for public comment at the next midnight reform session, perhaps we can bring this up?

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Folsom Prison Guard Charged with Fraud

November 4th, 2013 No comments

Every now and then, your humble blogger puts on that old Johnny Cash CD to hear the man in black sing of the Folsom Prison Blues.  My favorite verse?

“I said I slipped down stairways, and then I hurt my foot;
I couldn’t guard the prison, I couldn’t wear my boot;

And then they said they filmed me, they saw me playing ball;
So now I’m a defendant, and hearing Folsom call…”

Ok, so maybe the Man in Black sang it a bit differently, but the lyrics aren’t that bad for the story of Todd Phillips, a 17-year veteran Folsom correctional officer recently charged with felony fraud.  It appears that the evidence against him consists of several competitive softball tournaments caught on tape, as well as other alleged evidence of him exceeding his claimed work restrictions.

Time will tell the extent, if any, of Mr. Phillips’ fraud, but your humble blogger wishes the District Attorney’s office the best of luck in this case.  Having some experience with the excellent deputy district attorneys in the Sacramento DA’s Insurance Fraud Unit (not as a defendant, I assure you), I’m fairly certain charges would not be filed unless there was actual wrongdoing.

But, this is an important lesson for all of us on the defense community and for employees in general.  Workers’ Compensation Fraud hurts everyone – it turns a potentially productive worker into a fraudulent parasite, it costs society the time and resources to investigate, prosecute, and ultimately punish criminal behavior, and it raises prices on the consuming public.

After all, if the cost of doing business goes up because an employer has to deal with fraudulent claims, the cost of the product on the shelf is going up with it.

In any case – good luck Sacramento DA!

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Who Gets to Pick the Deposition Interpreter and Why Does it Matter?

November 1st, 2013 No comments

English fluency is by no means a requirement for making a claim in California’s workers’ compensation system.  In fact, it is a short career for a comp attorney, defense or applicant, that doesn’t encounter an injured worker that knew enough of the common tongue to adequately perform his job duties, but not so much that he could readily follow the Queen’s English seasoned with a bit of legalese.

In fact, it’s not that hard to find a native English speaker that feels like a freshly arrived immigrant when long-winded lawyers start serenading themselves with the lovely sounds of their own voices.  (You know who you are…)

So, when an applicant is to be deposed, and an interpreter is needed, who gets to select the interpreter?  After all, a defense-friendly interpreter service might agree to contracted rates and might filter possible interpreters for skills and experience.  And, as always, time is money for the defense — there’s the applicant’s attorney fees to consider, and there’s the time of the interpreter, the court reporter, the room rental (sometimes), and, last and possibly least, the defense attorney.

Meanwhile an applicant’s attorney might want a more expensive interpreter, or to help an interpreter friend, or even might want a workers’ comp savvy interpreter that will mitigate the meaning of an applicant’s words when there is wiggle room for translation.  In fact, a really sneaky applicant’s attorney could see profit in a slow-speaking interpreter to double his deposition fee.  Or, maybe, the applicant’s attorney just trusts a particular interpreter and thinks the defense interpreter service is trying to save money by getting lower-quality work.

The case at hand is that of Porfirio Contreras v. Gibson Farms.  There, the applicant’s attorney refused to allow the deposition of the applicant to be set unless the AA got to pick the interpreter.  Defendant wouldn’t agree, so the matter went before a workers’ compensation Judge, who found that the Defendant, and not the applicant, had the right to choose a deposition interpreter.

The reasoning lies in Labor Code section 5811, which provides that the party producing a witness requiring an interpreter shall bear the responsibility of arranging the presence of an interpreter.  The applicant’s attorney argued that he was producing the witness, namely the applicant, so he should choose the interpreter.  The WCJ disagreed: “Applicant’s role in bringing the deposition about is almost entirely passive.  Applicant has no reason to depose himself.”

The WCAB concurred.

But how would this play out with potential witnesses such as co-workers?  Is the defense “producing” the witness because he is an employee?  Is applicant “producing” the witness because the testimony is beneficial to the case of the applicant?

Now, recall, if you will, dear readers, an earlier blog post on who gets to choose the Nurse Case Manager, but this one is different.  Even though the deposition is typically held in applicants’ attorneys’ offices, it really is defendant’s deposition of the applicant.  It’s defendant’s court reporter, defendant’s transportation to the deposition (if it is needed), defendant’s interpreter, and, ultimately, defendant’s dime.

For now, at least, the defense still has some control over its own discovery process, including who will bridge the language gap between the two parties during the deposition.  Tomorrow, perhaps the Legislature will “reform” workers’ compensation to do away with attorneys all together.  In any case, stay tuned and have a good weekend!

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