WCDefenseCA

So, dear readers, the week is almost over.  Giving it a proper send-off is a blog post with all my beloved city and county readers in mind: the case of County of Nevada v. WCAB, David Lade.

The case is a pretty simple one – applicant was a Deputy Sheriff for Nevada County and sustained an injury to his shoulder in the line of duty.  At that time of the injury, he was working the night shift, which entitled him to a 5% pay bonus (who wants to work nights, right?)

Well, he was placed on modified duty during the months leading up to his shoulder surgery, and that consisted of “light” duty during the day.  The opinion is somewhat unclear as to whether it was light duty in the sense that the tasks put before Deputy Lade were not as strenuous as those that might be for a deputy on full duty, or if it was light duty simply because it was to be performed during the day light hours.  (That one was a joke – a pun of sorts – it was less arduous work to be performed during day light hours.)

Now, during the time he was completely off work, he was paid his full pay, including his 5% differential for working the night shift. But, while on light duty, the 5% was NOT paid to him.

So, citing Labor Code section 4850, Deputy Lade advanced the argument that he was, in fact, entitled to the 5% pay bump because section 4850 served as a guarantee that he would see no decrease in his pay as a result of an industrial injury (in lieu of temporary disability benefits, of course).

When he was placed on light duty, he lost the 5% bump he was receiving before.  Just for frame of reference, Nevada County’s Sheriff Deputies make about $4-$4.8k/mo for Deputy I, and $4.4-$5.4k per month for Deputy II, and that’s without overtime pay.  So the 5% base is about $200 to $270 per month extra or $2,400 to $3,240 per year.  Now, this may not seem like a lot to the big shot applicants’ attorneys out there, lighting their cigars with $100 bills while dipping their feet in gold-plated swimming pools filled with the tears of employers and insurers, but for the rest of us, that’s not money to be left on the table.

So, dear readers, what say you – does section 4850 apply to guarantee a shift differential/bonus that non-injured employees do not receive?

Well, the Court of Appeal, in a published decision, held that section 4850 does not apply to a decrease in earnings due to modified duty.  Relying on a plain reading of the statute, the CoA held that 4850 applies only to an actual leave of absence.  Assignment of modified duty, by definition, is not such a leave.

Apparently, as a matter of law, one cannot be on a leave of absence while actually back at work, even if working light duty on a different shift.  In other words, no 5% bump.

Now, remember if you will, this humble blogger once had the pleasure to report to you another case on LC 4850, wherein the Court of Appeal found that benefits under 4850 go towards the Labor Code section 4656 cap on temporary disability benefits.  So the two cases are in line with the same policy: certain public employees get full salary for a year in lieu of temporary disability benefits.  But that’s what 4850 benefits are: super-duper temporary disability benefits, which you don’t really need (or get) if you’re back at work on modified duty.

Back in the day, when your humble blogger was knee-high to a grasshopper, the workers’ compensation system really did not want defendants filing applications for injured workers.  If an application were to be filed by a defendant, the applicant became entitled to an attorney fee on top of, rather than out of, the overall recovery.

However, with the wisdom of SB-863 came a reform: Labor Code Section 4064(c) now reads: “if an employer files a declaration of readiness to proceed and the employee is unrepresented at the time the declaration of readiness to proceed is filed, the employer shall be liable for any attorney’s fees incurred by the employee in connection with the declaration of readiness to proceed.”

So, in the case of Michael Blessing v. City of Sacramento, when the defendant filed a DOR, the unrepresented injured worker sought out and hired an attorney.  But the WCJ had ordered the matter off calendar specifically to allow the applicant to retain an attorney, at which point this attorney had filed his own DOR.

So, dear readers, when does the applicant’s attorney’s meter stop running?  At what point does the Defendant get released for paying for attorney fees “incurred by the employee in connection with the” DOR?

The Blessing panel seems to take a fairly broad view of the term “in connection with.”  In fact, as the underlying matter was being litigated even on reconsideration, the matter was deferred.

But, from the panel decision, we can clearly infer that “in connection with” does not mean until the hearing goes off calendar.  It also is not clear if there is any duty on the injured worker to ensure he is not incurring unreasonable attorney costs.

For example, could the unrepresented applicant “incur” costs of $1,000 per hour, knowing that the plain language of the statute would make Defendant liable for the full amount?  At what point are the costs “incurred” when no money ever changes hands?  Shouldn’t the employee have to show that, if defendant is fount not to be liable for the attorney fee, the employee would have a legal obligation to pay the hired gun attorney?

Also, should the fee be a percentage of the benefits recovered? Should it be an hourly rate like for a deposition?

Like so many parts of the “reform,” this section may have the best of intentions, but is not clearly thought out in terms of application.  Or, if there was clear thinking, it was kept safely in the drafters’ thoughts and away from any paper.

Until we get some solid, citeable authority on how to interpret this vague provision, we can look forward to some needless litigation on this point.  Yet another of SB-863’s blessings.  (See what I did there?)

Alright, dear readers, I’ve got an interesting one for you today!  (Not that I don’t always have interesting stuff…)

As we know, Labor Code section 3208.3(h) provides a defense to psychiatric injury allegedly sustained by an employee with an employment history of less than six months with that employer, unless the injury was sudden and extraordinary.  The sudden part is usually a given, but the extraordinary element depends on the nature of the work.

For example, burning one’s hand with an iron while engaged in the dry-cleaning trade is exactly what you would expect to happen, so it’s not extraordinary.   (Bonilla v. WCAB.)  The same can be said of falling off a 24’ ladder while picking avocados.

But, in the recent case of Carlos Torrez v. Sequa Enterprises, the WCJ found, as did the WCAB, that a window-installer falling from a second-floor scaffold is “extraordinary.”

Mr. Torrez was employed installing a window on the second floor of a residential unit, having been employed by Sequa for less than six months, and when scaffolding rocked (apparently it was not tied to the building) he fell between the scaffolding and the building, causing very serious injuries.  It appears that the employer had failed to adopt some of the safety measures used by other scaffold-using businesses.

In resisting the psyche claim, however, the defense raised the issue of 3208.3(h), which shifted the burden back onto the applicant to prove that this was an extraordinary injury.  Well, not content to simply lose out the psyche claim, the applicant’s attorney went on the offensive and found an expert witness to testify that a fall from a second-floor scaffold WAS extraordinary in this business.

Applicant put on a 30-year veteran of the construction industry, who had worked on over 400 projects, 90% of which had involved scaffolding work.  In his opinion, this injury was not one that a person would expect doing this type of work.

The WCAB affirmed – there’s no need for a professional degree or license to qualify as an expert, and it was sufficient that the witness possessed special knowledge of the subject matter (typically to bridge the gap between the fact-finding duty of the WCJ and the facts that are beyond common knowledge).

But recall, if you will, that in the avocado case, the injured worker testified to having picked fruit since he was 17 years old (being 35 at the date of injury), and that between 1992 and 2010, had never fallen off a ladder, nor heard of anyone else doing the same.  In that case, the injured worker’s testimony, which was the functional equivalent of the expert witness testimony in this case, failed to sway the Court of Appeal.

So, dear readers, what should the defense community do to respond to such a situation?  Well, when we’re facing a psyche claim perhaps it should be standard operating procedure to locate an expert witness that will affirmatively prove (if only to negate applicant’s attempt to meet his or her burden) that the event was not extraordinary.

Realistically, the best person to help you with this is going to be the employer, who will likely be familiar with the industry and know someone who is a 30-year veteran or the like.  And it might prove to be worthwhile to go after the extra litigation expense of retaining an expert.  It certainly paid off for applicant in this case.

Now that I’ve scared (or bored) you with my fear that California’s bread-and-butter of workers’ compensation claims will be eliminated by the robotization of the workforce, I have more immediate concerns to address.

For injuries occurring prior to January 1, 2013, Labor Code section 4658(d) offers a 15% increase or decrease depending on whether the employer was able to follow proper procedures in offering regular, alternative, or modified work to its injured employee.  However, the benefit of a worker back at work for all injury dates as of January 1, 2013, is that there is no duty to make advances for permanent disability benefits.  (See LC section 4650(b)(2).)

As discussed previously, the employer may or may not have to use a particular form to reap this benefit.  But, here’s another issue: what if the employer missed no time from work?

After all, The Court of Appeal ruled in City of Sebastopol v. WCAB, that the 15% bump or drop does not apply to cases where the employee missed no time from work due to the injury.  So, if the employee claims a CT and is immediately placed on modified duty, is there a need to offer regular, modified, or alternative work to avoid having to make advances?

Your humble blogger wishes, of course, that he had a panel case for you with a definitive answer.  (If you’ve got one, please send it my way!)

Looking at the statute itself, there are no advances due if an offer is made for a job paying at least 85% of the pre-injury earnings, or if the worker goes to work for someone else and is making at least 100% of the pre-injury earnings.  Well, how would employer 1 make an offer to the employee for a job with employer 2?  In all probability, no offer on any form is required to reap the benefit of 4650 when the employee jumps ship for another job.

If the worker missed no time from work, and is continuing to receive a paycheck, why does the worker need advances on his or her permanent disability benefits?

Your humble blogger’s advice is always to act early and act often – there is no reason not to provide an offer of regular/modified/alternative work even if there is no missed time.  But, even if you elected not to make the offer, if the employee missed no time, there should still be no need for advances unless there is an actual award.

What’s your experience with this, dear readers?  Have you been scared into paying a self-imposed penalty for not advancing prior to an award in such situations?

Something to ponder over your weekend!

Ok, dear readers, prepare for some scary sci-fi.  And economics.  And paranoia…

Anyway, as you may have guessed, your humble blogger derives his living from the swampland we all lovingly refer to as California’s workers’ compensation system.  As sad a truth as it is, if workers don’t get hurt, then there are fewer peanuts in Greg’s peanut jar.

As I have long suspected, I am not alone in this situation – applicants’ attorneys, adjusters, physicians… there’s a pantheon of us in different roles that make our living from the suffering and recovery of injured workers and their financially injured employers (one way or another).

Your humble blogger has remarked before that California’s labor (including workers’ compensation) policies drive many employers out of the state, and with them go the jobs.  Well, now the talk has turned to a $15 minimum wage for (among others) fast-food workers.  And, naturally, the response is to invite the employers to leave: California’s will still want their fast food, and someone has to give it to them, so there’s nowhere to run.

Well, about that…

There are ways to avoid minimum wage, but they typically include avoiding having employees.  Meet Momentum Machines’ smart gourmet burger maker.  Meet the Briggo robot barrista.  Meet the BurritoBox.   The list goes on and on, mainly because it isn’t complete yet, with the soaring cost of labor making the expensive technology more cost-effective.  After all, it’s been twenty years since grocery stores replaced four check-out cashiers and a couple of baggers with four self-check-out stands and one technician clearing glitches.  Why wouldn’t we expect the state of Silicon Valley to replaces lots of low-skill jobs with a bunch of robots and a few highly skilled technicians managing them?

What does that mean for us?  Well, if California continues to go as it usually does, that means we can see a huge drop in the size of workers’ compensation over the next couple of decades.  Simply put, there will be fewer workers turning to the workers’ compensation system because there will be fewer workers.

What about those highly trained technicians?  Well, some of them will go on comp, sure, but most of them will race to get off comp as fast as possible, because 2/3^rd of their average weekly wages would be nice, but not nearly as nice as the full paycheck.

Now, our humble blogger imagines you, at this point, staring at the screen with fear in your eyes and panic in your heart, your hand trembling over your computer mouse and your lips mouthing the words “save us Obi-Greg, you’re our only hope!”

I do have a word of advice: REVERSE THE TREND.  All of these robots and software and technology are really, really expensive.  The only reason that they are an option is because California has made really low-wage jobs very expensive too.

Workers’ compensation insurance is expensive, but it doesn’t have to be.  Most states have workers’ comp rates that make employers shrug, write a check, and go back to solving actual problems within their business.  In California, insurance brokers take their lives into their hands when they tell their policy-holders what this year’s rate adjustment will be.

Stop making desperate employers the target of the Department of Insurance, and target, instead, those lien claimants and applicants that are driving the employers to desperation.   It’s either that, or Skynet…

Hello dear readers!  I hope you are enjoying your day off on Martin Luther King Day.

My favorite speech from the man himself:

Food for thought, indeed.

Cheers!

So, there you are, smiling at the Heavens as they have given you the perfect Primary Treating Physician report.  It is exactly what you were hoping for in a situation like this – the PD rating is conservative, the work restrictions are light enough to be accommodated, and there is even a great discussion of why Almaraz/Guzman does not apply.  In fact, the injured worker was so persuaded by this super-star PTP that he didn’t even bother requesting a panel.

Then, of course, his cousin got hurt at work, and faced a similar situation, but his cousin’s lawyer requested a panel, and the QME opinion, though shoddy and poorly supported, found a lot of PD and heavy work restrictions for his cousin.  Your injured worker reasoned that he better lawyer up and get a panel, because, as his cousin put it, he’s “leaving money on the table.”  After all, who wants to work for a paycheck?

My dear readers will recall a post on this subject back from the sunny July of 2012 – we were all so young back then!  The two cases were both panel opinions – Benson v. City of San Diego and Strawn v. Golden Eagle Insurance Co.  In Benson, the split panel found that there was no time limit for the injured worker to request a panel of QMEs following an adverse PTP report with respect to work restrictions or permanent disability.  Strawn, on the other hand, held that a defendant had waited too long (six months) to object and get a defense QME report (this case is back from the year 2000).

Well, you’ve got these two panel opinions, neither one of them binding, wouldn’t it be nice to take the wind out of Benson’s sails and put some teeth into Strawn’s jaws?  Your humble blogger has a humble proposal for you: make casual reference to the case of Brice Sandhagen v. Cox & Cox Construction, Inc. (2004, en banc).  In that en banc case, the WCAB specifically cited Strawn with favor, relying on it for the proposition that “medical reports not timely obtained in accordance with statutory requirements are generally inadmissible in workers’ compensation proceedings.”

But, Labor Code section 4061 does not have a time limit for making an objection, and Strawn had held that it needed to be made within a reasonable time.  So, if Sandhagen cited Strawn with favor, perhaps we can conclude that 6 months is an unreasonable time for making an objection?

Now, bear in mind, dear readers, that if you bring this case up you’re going to be faced with a barrage of abuse from the applicant’s attorney: Sandhagen was taken up on appeal, and the California Supreme Court granted review and issued an opinion.  So, in effect, Sandhagen is not binding law.  In fact, the applicant’s attorney might even claim that you should be sanctioned for citing a de-published opinion, as per 8.1105(e) of the California Rules of Court, and Section 8.1115(a) of the same.

Well, here’s what your humble blogger would do: First off, Section 8.1115(a) specifically prohibits citing opinions of the Court of Appeal and superior court appellate divisions – the Supreme Court has not prohibited anyone from citing a Workers’ Compensation Appeals Board decision even if it has been granted review.

Additionally, Labor Code section 5703(g) specifically allows us to cite and rely upon the “prior decisions of the appeals board upon similar issues.”

When you put the specific language of 8.115(a) together with the general provision of section 5703(g), it looks like the Sandhagen citation of Strawn with approval is left undisturbed and cite-able.

So, dear readers, have any of you tried this little argument?  Let me know in the comments (recently re-activated) or drop me a line at gregory@grinberglawoffice.com.

NBCLosAngeles has an article on two officers of the LAPD, both charged with workers’ compensation fraud. The two officers, both veterans of the LAPD, have been charged with giving false testimony under penalty of perjury for the one, and falsifying medical records for the other. Because there have been no convictions, your humble blogger is reluctant to name them, but it appears that one has been an officer for 19 years, the other 13.

With or without the conviction, half the damage has already been done.  There is so much of what police officers and other law enforcement officials do that is tied into their credibility.  After the actions of Mike Nifong, every single district attorney in the country, prosecuting a charge of driving without a license or seeking the death penalty in a multiple murder case, had to endure comparison to that disgraced prosecutor.

A lot of criminal prosecutions rely on officer testimony, and their credibility, to get convictions.  There’s a good chance that these two officers have testified repeatedly in cases that lead to convictions.  If it is proven that these two officers really did engage in fraud, what credibility could they possibly have in any matter?  How could any person continue to be incarcerated and convicted if officers who themselves were found to be frauds provided the testimony that lead to a guilty verdict?

The point your humble blogger is making (again, without concluding the guilt or innocence of the parties accused) is that when law enforcement officers commit crimes of workers’ compensation fraud, the damage to the law enforcement community is done at the wording of the first accusation.  The damage to the public is done with the DA’s office suddenly finds itself facing a flood of convicts seeking retrial (even 13 years probably yielded a lot of court testimony).

Perhaps the solution lies in paying law enforcement officials more, so they are less inclined to trade the public’s trust and the binding effect of criminal convictions for a few dollars.  Perhaps the solution lies in better educating new recruits on how important their honesty is, and the result of a fraud on the part of the police officer is not just damage to one man’s reputation, but criminals returning to the street.  Perhaps the solution lies in giving prosecutors more tools and more encouragement to zealously pursue cases when it is a peace officer who engages in fraudulent acts.

In any case, your humble blogger sincerely hopes there is no merit to these accusations, and that time will show the district attorney to have been overzealous, which can be forgiven in a prosecutor, rather than these officers being frauds and liars, which never should be.

Are you tired of pro-sports cases? No? Good!

Today’s post is on the subject of Dan Fike, and, more to the point, his claim against the Baltimore Ravens/Cleveland Browns.  Mr. Fike was a professional football player from June of 1985 to December of 1992.  He sought to have his industrial injuries addressed under California’s workers’ compensation system, alleging a cumulative trauma to the head, neck, back, shoulders, and other body parts.

The defense was one typical of such cases: California did not have jurisdiction.  To support this defense, the Cleveland Browns provided evidence of self-insurance and extra-territorial coverage.  Testimony also established that between 1985 and 1992, applicant played only nine games in California.  Evidence also showed that no contract was entered into in California.

The WCJ found that, despite applicant’s 95.2% permanent disability, California had no jurisdiction under Labor Code section 3600.5.

On reconsideration, applicant argued, among other things, that the WCJ should have focused on the employer’s activities, rather than the employee’s in determining whether the employee was temporarily in the state.  After all, if the employer is regularly active in California, and the employee was just one of many cogs in the state, California should be able to assert jurisdiction over the claim, right?

No.  The answer is no.  Labor Code section 3600.5 is essentially a deal – a trust, a conspiracy between one state and another that says we won’t squeeze your employers for every penny if you won’t squeeze our employers for every penny, within these particular guidelines.   More to the point, even California understands that there are limits to how much your can rob visiting employers before employers stop visiting.

The WCAB denied applicant’s petition, and confirmed that employers from Ohio can safely send their agents into California, without fear of ever needing your humble blogger’s services.  The Court of Appeal denied applicant’s petition for a writ of review.

Now, interestingly enough, we have a statutory limit, aside from Labor Code section 3600.5(b), to such a claim at this point (maybe), and that’s subsection (c).  3600(c) NOW says that if the injured pro-sports athlete was hired outside of California and the employer has insurance outside of California, California does not have jurisdiction if the last year of the athlete’s career had less than 20% “duty days” in the Golden State.

Your humble blogger doesn’t have all the facts for this particular case, but 3600.5(c) is definitely a section worth exploring if you’re defending against a pro-athlete claim.

Everybody loves a published decision from the Court of Appeal.  The unpublished opinions are the worst – it’s like you know a secret, but you have to pretend you don’t.  The Judge, opposing counsel, everyone in the Board room exchanges looks, secretly thinking the case name that we’re not allowed to mention…

Well, allow your humble blogger to provide you with a not-so-secret bit of information you can freely scream from the mountaintops: the case of Federal Insurance Company v WCAB (Adrienne Johnson)

The basic gist of this case is as follows: the Court of Appeal held that a professional basketball player not employed by a California team, who had never resided in California, and played only one out of 34 games in California and sustained no specific injury in California, did not have sufficient contact with California to grant it jurisdiction.

Now, I’m not going to bore you with the details, but the basic idea is this – the first question that needs to be answered when some non-Californian comes here and walks through or precious WCAB doors is whether California has jurisdiction.

Labor Code section 3600.5 provides that California will have jurisdiction if the employee has been hired or regularly employed in California.  Is one game in 34 enough to be “regularly employed”?  Well, as you will recall, the case of Injured Workers’ Insurance Fund of the State of Maryland v. WCAB (2001), a WCJ held that a single game was enough to grant California jurisdiction for applicant’s cumulative trauma.

But, here, the Court of Appeal held that one game was NOT enough to be “regularly employed” in California to satisfy section 3600.5.  In fact, “the effect of the California game on the injury is at best de minimis.”

So what’s the take-away?  There really aren’t that many pro-athlete claims, and many of those will now be barred by the freshly pressed section 3600.5(c).  But, as always, what about the non-high-profile employees?  What about the temporary consultants, the conference attendees, the recruiters, the motivational speakers, etc., that visit California at their employer’s instruction and sustain some sort of cumulative trauma?

If one game out of 34 is not enough, if it is “at best de minimis,” then how many days out of a career?  How many training seminars?

Picture a California, dear readers, where mobs of angry employers and insurance adjusters picket outside the WCAB Board, telling Ohion employees to go back to Ohioania, Nebraskaites to go back to Nebraskatania, and Floridanians to go back to Floridania, and stop taking the precious hearing dates that Providence intended for California cases.

Just some food for thought, dear readers.  Happy Wednesday!