Archive for May, 2014

At Least Professional Drivers are Safe From a Robotic Work-Force… Or Are They?

May 30th, 2014 No comments

So, dear readers, are you tired of hearing about how you will be replaced by machines yet?  Does the thought of an automated society free from human errors (and industrial injuries) no longer scare you so much as bore you?  Do you find yourself writing an angry e-mail to your humble blogger demanding blood (in the form of workers’ compensation injuries as described in recent panel decisions)?

Then I have some bad news for you, dear readers – here comes another techie post.

Google recently announced that it plans to produce (and possibly sell) a self-driving car.  The video for this car is actually pretty cool: no steering wheel, no brakes, just a couple of buttons to start and stop.

Obviously, we’re a long way from seeing these soulless automatons swarm our streets, but it kind of makes you wonder as to how secure more and more jobs are.

There is a huge employment sector for drivers – taxis, limos, buses, and trucks.  Those are a lot of jobs that could be affected by the mass production and distribution of driver-less cars.

Now, you’re probably thinking to yourself “Greg, it’s a good thing you’re so handsome, because you’re crazy! No one is going to get rid of a driver just to cut down on the workers’ compensation premiums – there’s too much risk if the car malfunctions.”

Ahh, you’re right on both counts dear reader: as handsome as I am, there is still the greater picture involved if businesses adopt driver-less cars.  I would be willing to bet my shiny penny collection that there are already tort attorneys preparing articles about how a google-produced driver-less car eliminates the liability for driver negligence, and instead turns Google into an insurer for strict product liability.

So, picture your garden variety employer: he or she can continue to pay higher workers’ comp rates to employer drivers, and also carry insurance for all the third-party liability, in the event his or her driver hits another car and is at fault.  Or, the employer could pay a little extra for a driver-less car and avoid the workers’ compensation premium while also having an argument to shift all liability for car accidents onto the manufacturer.

The point your humble blogger is making is that technology, once again, is making it more cost-efficient to minimize human labor, and a safe, reliable, and street-worthy driver-less car puts skilled labor – professional drivers – on the chopping block.

What California needs to do, and I mean RIGHT NOW, is make it cheaper to continue to employ human beings.  A good place to start is the cost of insuring against industrial injuries.

In the alternative, I suggest we all rent Terminator 1 and 2 (don’t bother with the others) and take good notes on how to fight the machines.

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Don’t Settle Those Dubon Issues Just Yet… Cavalry (May Be) en Route

May 28th, 2014 No comments

Put down that pen! Step off that ledge! Do not cave in on that medical treatment dispute!

From the looks of it, the Dubon matter may have a new twist in the works – the WCAB recently granted Reconsideration to consider the issues raised by SCIF, which means there may be a new opinion coming down soon that will close the lid on the Pandora’s Box of issues opened by the original opinion.

Before we get too excited, we should all note that “the Appeals Board’s February 27, 2014 en banc opinion in Dubon shall remain in effect and binding.”

On the other hand, there are more than a few reasons to be optimistic.  For starters,  After Dubon, a new commissioner joined the panel – Katherine Zalewski.  Commissioner Zalewski brings particularly persuasive expertise on this issue because she was instrumental in the drafting of SB-863, which brought the embattled IMR process to California.  As someone who was in the proverbial kitchen while the even-more proverbial meal was being prepared, she can speak with considerable authority as to the intent of the Legislature in drafting and passing SB-863 and IMR with it.

Additionally, whereas the original Dubon opinion had the benefit of the parties’ respective arguments, since Dubon, the internet, the lecture circuits, and even the smokey rooms where benefits are poker chips and all the big wigs of the big firms play for keeps, have been filled with opinions, analysis, and arguments for and against the reasoning behind allowing the WCAB to decide whether or not a particular medical dispute is confined to Independent Medical Review.


Now, in all likelihood, if you’re an adjuster with an attorney on the file, you’re getting an e-mail after every UR decision with a “Dubon analysis” which provides not only confirmation of the timeliness of your UR report, but its validity for other weak points, which I will decline to list here in appreciation for the three applicants’ attorneys that read this blog (But your honor, the humble blogger said the UR report was defective because…)

That being said, a WCAB en banc opinion returning all medical disputes to UR and IMR will not only eliminate the need for this analysis (and the associated billables), but also the resulting litigation – after all, an applicant’s attorney playing the scorched Earth campaign is more than happy to inflict a needless IMR bill on the defense while also filing for an expedited hearing to perform a Dubon challenge.

So, here’s hoping for a favorable result from the WCAB soon.  In the meantime, don’t cave on the medical treatment awards, even in the face of some UR defect or another: in a best-case scenario, help is on the way, and in a worst-case scenario… well… just look around, because this is it.




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How to Celebrate Memorial Day 2014

May 26th, 2014 2 comments

Happy Memorial Day 2014, dear readers!  No doubt you woke at the crack of dawn on your day off and eagerly hit “refresh” on this website until this post appeared – I thank you for the enthusiasm and the loyalty, of course.

Now, before I lose your attention to the campgrounds, the BBQs, and the sales, might I ask you consider an alternative way to celebrate Memorial Day this year?

Those of us not living under a rock for the past decade and change are aware that the United States has deployed men and women into combat in Iraq and Afghanistan.  There are several less-known engagements happening around the world that also put our troops in harm’s way.

Many soldiers return with a list of injuries – brutal scars, missing limbs, and Post Traumatic Stress Disorder (PTSD).

We can all celebrate Memorial Day by just taking the day off (don’t worry, dear readers, your humble blogger will be at his post, striving to deny benefits, as always), and we can celebrate it by going camping or relaxing or doing any number of things not related to the purpose of the holiday.

But, for at least a few moments, consider celebrating Memorial Day this year by offering assistance to a veteran or group helping to re-integrate returning combat vets into civilian society.  If you have an organization you would like listed on this site, please add in the comments or send me an e-mail  and I will post it here.

Happy Memorial Day!

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En Banc WCAB Opinion on Total Permanent Disability Due Date

May 22nd, 2014 No comments

No, no, dear readers, you haven’t overslept.  It’s not Friday, but feeling wretched on denying by beloved followers a proper update on legal developments as they happen, I have elected to provide a post today rather than tomorrow.

The Workers’ Compensation Appeals Board has issued an en banc opinion (consisting of five commissioners, given the two vacancies remaining on the Board) in the case of Warren Brower v. David Jones Construction.

The basic facts are simple enough: applicant sustained an injury in December of 2005 and was on temporary total disability for the 104 week maximum provided by Labor Code section 4656(c)(1).  It appeared very clear, very early on, based on the opinions of the AME, that this would be a total permanent disability case.

After paying more than 104 weeks of temporary total disability, defendant began paying permanent disability advances at a rate of $270 per week.  Ultimately, applicant was found totally permanently disabled, but that wasn’t until October of 2011.

So the issues rear their ugly heads quiet clearly: is applicant entitled to the difference between his life pension paid at the temporary total disability rate, as per Labor Code section 4659(b), and the $270 per week advanced during the four-year period prior to being found P&S?  Does COLA apply after the P&S date or on January 1 after the last temporary disability payment was made?

The WCAB held that an applicant found to be totally permanently disabled is entitled to retroactive payments from the last day of temporary disability benefits.  Additionally, COLA kicks in on January 1 after TTD funds are exhausted.

Now, some of you might be scratching your heads and thinking about a Supreme Court case by the name of Baker v. WCABIn that 2011 case, the Supreme Court held that “the Legislature intended that COLA’s be calculated and applied prospectively commencing on the January 1 following the date on which the injured worker first becomes entitled to receive, and actually begins receiving, such benefit payments, i.e., the permanent and stationary date in the case of total permanent disability benefits.”

The Brower opinion considers this as well, but also notes that the Baker decision specifically limits its holding to pre-4/19/2004 injuries.

So, dear readers, what’s to be done?  Well, you might get sneaky and think that you can just keep paying temporary total disability, even past the 104 week period, to avoid triggering COLA increases.  Your humble blogger advises against this.

Section 4656 specifically states that “aggregate disability payments for a single injury … shall not extend for more than 104 compensable weeks.”  In other words, the defendant has no right to waive 4656 and must start making PD advances.

Additionally, because TTD benefits are of a different species than Permanent Disability benefits, an aggressive applicant’s attorney could argue that all the temporary disability benefits paid in this matter are overpayments, and should not be credited against the retroactive permanent disability.

In this case, the defendant actually overpaid TTD by several weeks, with the last payment being in late January of 2008.  The WCAB allowed defendant credit for the overpayment, but held that the COLA would kick in on January 1 after the 104 weeks of TTD were exhausted, rather than the actual last day of TTD paid.

SCIF, the insurer in this case, may appeal, but to your humble blogger the reasoning of the WCAB is fairly solid.  This applicant was found by the AME to have suffered an injury far more debilitating than most workers sustain, and opined that he was completely incapable of ANY employment.

How would you like to be in his condition: in pain, heavily medicated, and incapable of providing for yourself, and then told you have to survive on $270 per week for four years, until there is a P&S report?





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Proposed Legislation to Examine Effectiveness of SJDB Vouchers

May 21st, 2014 No comments

It doesn’t take long for a participant in the workers’ compensation system to develop a rather healthy amount of cynicism with respect to supplemental job displacement benefits.  They are rarely used for their intended purpose, and, prior to SB-863, were just another couple of thousand dollars in the settlement amount.

It might be that someone in the legislature took notice of this little fact.  Assembly Member Curt Hagman introduced AB1749 early this year.  AB1749, as it is currently written, would require the administrative director to report to the state legislature, no later than January 1, 2016, on the results of the SJDB voucher program, namely “the extent to which injured workers who obtained specific education or training with vouchers … obtained employment related to that education or training.”

In other words, rather than taking employers’ coins and throwing them into the wishing well of good intentions (and then forgetting about them) someone actually wants to know if this program does any good, or if it is another waste of employers’ time and resources.

AB1749 isn’t law yet, and it’s not going to fix our broken system by a long shot, but this humble blogger welcomes it as a step in the right direction.  If there is no benefit involved to the voucher program, whether because it is not utilized at all or utilized on pursuing education for hobbies rather than marketable skills, perhaps it is a benefit that the government should not be forcing employers to provide.

More importantly, the legislature should be encouraged to make these sort of inquiries and on the grander scale.  Do employers and employees benefit from the various benefit schemes currently in place?

WCDefenseCA sends its warmest regards and thanks to Assembly Member Hagman for even peering into this dark swamp we workers’ comp folks call home, and encourages him to continue.  If you’re looking for problems to fix, we’ve got them a plenty!

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No New Panel for Late Sup. Report

May 19th, 2014 No comments

Pop quiz, dear readers.  You requested a supplemental report from a panel qualified medial evaluator, providing all treatment reports not available at the time of the original evaluation.  Sixty days later, there’s no report.  What happens?

Well, if you reach for the panel case of Lopez v. C&S Wholesale Groceries, you would say yes – a party who doesn’t get a supplemental report in 60 days, as required by California Code of Regulations section 38(h).

On the other hand, if you were to look at the panel case in Ramirez v. 3 Day Blinds Corporation, the answer would be no.

So, now we have yet another panel case, this time, Garcia v. Loaves and Fishes of Contra Costa, which again finds that no new panel is necessary.

The facts are a bit convoluted though, so bear with me (your humble blogger is not ignorant of the fact that today is Monday and the line at Peet’s Coffee was too long to tolerate today).

Defense counsel requested a supplemental report from the Panel QME, and more than sixty days later, no report was available.  Naturally, the defense filed an objection and requested a replacement panel, so the matter proceeded to hearing.

Apparently, the QME was in the process of moving his office, and didn’t get the request for a supplemental report.  Under the MSC judge’s guidance, the QME’s deposition was set and the issues raised in the original request for a supplemental report were apparently addressed.

But… shouldn’t the defendant be entitled to a new panel?

No.  In this case, the factors seemed to weight against issuing a new panel.  The transition of the PQME’s office provided a reasonable excuse for the failure to respond in a timely fashion, and the fact that the QME made himself available for deposition also relieved some of the harm done to the defense.

The WCAB denied defendant’s petition for removal and the Court of Appeal denied review.

Now, dear readers, we’re all grown men and women, so I’m going to be frank with you.  As previously revealed on this blog, there is no Santa Clause, the Easter Bunny does not exist, and late reports are excuses for a replacement panel.

Both sides do this and regularly – if a QME is favorable to your side, the report can be one day late or 45, you won’t object because you don’t want a new QME.  At the same time, if the QME’s office regularly rings with “quacking” noises, you’re probably going to look for any excuse to get rid of him, including a one-day late report.

The WCJ is absolutely correct – although there is a very firm deadline of 60 days for a supplemental report, there is no requirement that a replacement panel issue.  On the other hand, we know that a replacement panel is a remedy some judges are ready to provide for a late panel, and the inconsistency can be pretty frustrating (as is common with many things in the comp world).

Now, bear in mind, dear readers, that your humble blogger is not committed to one camp or the other.  When a defense-friendly QME is a month late with his report, it’s silly to issue a whole new panel and start the process over.  On the other hand, when a defense-hostile, drug-dealing, good-for-nothing QME can’t get his act together to get a report out in 60 days, justice demands he get the boot and a new panel issue.

What we need is a consistent rule, or some citeable authority, so we know ahead of time what’s going to happen with a late report, and what the consequences are.  If we had such a rule, perhaps we could avoid unnecessary litigation on this point.

However, until the WCAB gives us a solid, binding rule, one way or another, we can expect to take our chances with this again and again.

What do you think, dear readers?  What should the rule be?  If the report is late, should a party get a replacement panel on demand?  Should the right to request a panel be limited to the party that submitted the request for a supplemental report?  If a new panel is not the remedy for a late report, what should the remedy be?

I can think of a few alternative remedies:  If the report is late, the bill should be reduced by some amount.  The late report might generate a citation which, along with other citations, should lead to a probation status as a QME (and perhaps probation status can have a mandatory reduction in the statutory fees to which QMEs are entitled).

In the meantime, dear readers, keep those DORs handy, the calendars current, and your fingers crossed.

Have a good week!

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Automation of Work Force Continues: Panera Bread to Replace Human Cashiers w/ Kiosks

May 16th, 2014 No comments

As my beloved readers will no doubt recall, their humble blogger offered them a cocktails of prophecy and pessimism that went down with a fight.  I had the great displeasure of reporting to you the growing interest and trend in automation of the food service industry, replacing a large group of workers with a growing price tag with reliable and sterile machines.

The trend continues.

Panera Bread is reportedly replacing several cashier positions with automated touch-screen ordering systems.  The reported goal is to have all cashiers replaced with touch-screen ordering kiosks by 2016.

Meanwhile, just yesterday, mass protests by fast-food workers demanded a minimum wage of $15.

Do you see where this is going?

Let’s take a look at France, for example.  In France, the minimum hourly wage is $12.22 per hour.  That’s great, right?  Well, this is nothing new, and in 2011, McDonalds installed 7000 automated kiosks to replace all of its cashier positions.

Robots don’t get injured.  They get damaged – but that only provides employment to mechanics and those fresh-faced Silicon Valley programmers.

If we continue to see large, loud, and labor-driven protests and demonstrations for a higher minimum wage, we can expect to see more investment in automated technology to replace workers with robots.

That, of course, will leave a lot of really good people out of work (namely workers’ compensation defense attorneys and adjusters).

So, when you’re chatting it up with your friends and one of them valiantly declares his intent to lobby or vote for a higher minimum wage, remind him that he may be pushing for higher unemployment and robotization of the work force.

Have an efficient and automated weekend, dear readers!

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No RFA Form? No Need for UR

May 14th, 2014 No comments

So, here’s a puzzle for my dear, beloved readers: you receive a PR-2 in the mail, and, as part of the PR-2, there’s a request for authorization of treatment (the good doctor wants to give the injured worker a jetpack to help his self-esteem).

How many days do you have to perform UR on the request for the jetpack?

Does the clock start ticking once you realize that it’s a request for authorization?

A recent panel decision addressed this very issue:  The defense issued its UR denial on the sixth day, and applicant made the argument that it was late.  By contrast, the defense argued that without a Request for Authorization form, it was under no obligation to perform UR at all.

The WCJ, in finding for the defense, relied on California Code of Regulations section 9792.9.1(a), which holds that a request for authorization must be on the DWC RFA form.

As so properly put by the WCJ in his report, unless the RFA form is properly filled out and submitted, “no request for authorization has occurred.”

The WCJ rejected applicant’s argument that the defense waived any objection to form (or lack therefore) by performing UR, but I would be careful – other WCJs and other panels might go the other way, and reason that once the defense is aware that this is a request for authorization, it needs to perform UR.

In fact, as my dear readers will recall, the panel case in Musetti v. Golden Gate Disposal & Recycling went the other way, where the WCAB reasoned that defendant’s objection to a faulty PR-2 treatment request started the time to refer to UR.

Accordingly, it makes sense to reflect on an adopt a consistent policy of what is to be done with treatment requests not submitted on a RFA form – UR or waste bin?

The panel decision?  Torres-Ramos v. Felix Marquez; Redwood Fire & Casualty Company.

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Unable to Lift His Baby, Fraudster Filmed Playing Basketball at YMCA

May 12th, 2014 No comments

“Oh man, Mr. Adjuster, it hurts so bad.”

“How bad does it hurt, Mr. Bolton?”

“Oh, so bad… I can’t stand for more than an hour at a time.  I can’t even pick up my baby girl… think of the psychiatric injury I’m developing by not even being able to pick up young child… can you get those TTD checks out?  Maybe some PD Advances…?”

“Uhhh… sure, I guess…”

“Great!  Now I’ve got to get down to the Y – the boys and I got a game going.”

Now, your humble blogger isn’t claiming that this exchange happened word-for-word, but that’s the conversation this defense attorney conjures up in his head when he hears the story of Chip Kyle Bolton, who apparently told the adjuster that his work injury caused some pretty serious harm on the same day he was videotaped playing basketball and exercising at the YMCA.

In addition to his workers’ compensation fraud Mr. Bolton was convicted for welfare fraud.  Apparently, the judge that sentenced Mr. Bolton to eight years and eight months in Monterey County Jail, called him a “perennial liar.”

It is no secret that your humble blogger is glad to see the workers’ comp fraudsters go down.  The guys that rip off their insurers and employers ultimately drive up the prices for the rest of us.  So this is another win for the good guys.

In the meantime, Mr. Bolton has been ordered to pay restitution, the workers’ comp end of it being about $60,000.  Of course, money ill-gotten and quickly spent is not easily recovered, even by the state.  So while we all get to nod approvingly at justice being done, it is more likely than not that the money will never be seen again.  But that is just typical for workers’ comp fraud, and why it is so devastating to the public.

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No Psyche Injury for a Truss Fall

When your humble blogger was just knee-high to a grasshopper, long before he was the freakishly (and handsomely) tall workers’ compensation defense attorney that sits before this very screen, my uncle Joe sat me down on his knee and gave me a very important lesson.

“Sometimes,” he said, “people get hurt at work, and sometimes those injuries cause psychiatric injuries as well as physical ones,  but those injuries are barred by Labor Code section 3208.3(h) unless the employee has been with the employer for at least six months, or the injury is resulting from a sudden and extraordinary event.”

My uncle Joe was a wise man, and this subsection has come to bar many claims.  Recently, the Court of Appeal denied applicant’s writ of review of a WCAB decision finding that applicant’s injury was NOT extraordinary when his tool belt caught on a 250 pound truss causing it to fall on him, injuring his left side.  (Alves v. SCIF)

There wasn’t much dispute that the injury was sudden, but extraordinary?  Does applicant have a case?  What do you think, dear readers, if a 250-pound truss suddenly fell on a carpenter version of you, would it be extraordinary?

Well, the WCAB, in reversing the WCJ, found that applicant’s claim was defeated by the “extra-ordinary element.”

Rejecting the WCJ’s report, which relied on the panel case in Matea v. WCAB (2006), wherein a Home Depot employee to find that a pile of logs falling on a worker’s leg was both sudden and extraordinary, because, in this case, the two are not the same.  In the WCAB’s opinion, the falling of a truss was NOT extraordinary, because it could happen at any time when anything, including a tool belt gets caught on it.

The WCAB also relied on the Court of Appeal case in Bayanjargal, which held that a roofer’s fall from a roof was not an extraordinary injury.

Now, there’s an important lesson to take away from this – don’t be disheartened if the case doesn’t work out at the trial level.  The defendant in this case didn’t and it came back with a victory.  Why?  Because there is an undeniable level of subjectivity in this analysis – like jurors in a tort civil trial, the WCAB commissioners and the WCJ are asked to determine what is reasonable expected in any given industry, which it is unlikely the commissioners and WCJ’s had been engaged in themselves.

So, if you take a hit at the trial level on a 3208.3(h) case, don’t be shy about a petition for reconsideration.

Have a great weekend, folks!

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