Archive for January, 2015

TN Gets Ball Rolling Towards WC Opt-Out; CA Not So Much

January 28th, 2015 No comments

One of the wonders of the United States if Federalism: 50 concurrent laboratory experiments all running different methods to see what works, what doesn’t, and why.  In California, for example, we have workers and employers, physicians and lawyers, services providers, insurers, self-insurers, re-insurers, and self-insured groups, all sewn together into a giant sack called California’s workers’ compensation system.  And, in fact, there is constantly growing frustration as to how the system works, or rather why it doesn’t.

Injured workers often feel they’re not getting enough.  Un-injured workers sometimes feel their allegedly injured counterparts are getting too much, and shrinking their paychecks in the process.  The employers would rather have independent contractors, and often try to contract for independent contractor status, only to have the once eager-to-agree worker now seek to have this agreement nullified by the Workers’ Compensation Appeals Board.  Employers often express frustration with bearing not only the cost of the benefits, but also of administering the benefits.

What if we were to restore the right of individuals to contract once more?  That’s what Texas has done with its “opt-out” law, and, as of May of 2013, Oklahoma adopted its own “opt-out” law for workers’ compensation as well.

It looks like Tennessee may be getting the ball rolling in that direction too.  Mark Green, state senator from the volunteer state, has announced that one of his proposals in the 2015 legislative session will be to allow Tennessee employers to “opt out” of the state’s workers’ compensation system.

Your humble blogger has previously proposed consideration of allowing employees to purchase their own workers’ compensation insurance, but an opt-out would not be a bad idea for Californians to consider at this point.  Certainly, with a population of almost 40 million, the suggestion that there should be flexibility in approach to an area that covers industries spanning from ancient farming methods to futuristic high-tech and everything in between is not unfounded.

In any case, Tennessee is apparently going to be exploring new options, and California employers may soon find yet another destination to explore, much like Tesla explored Nevada, Toyota explored Texas, and a few other examples that are just a google search away.  Perhaps it’s time for California to figure out a way to be more flexible and dynamic, and to free up the exchanges between employees and employers.

Now, that being said, your humble blogger is going to get back to work finding a relocation

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The Flu and Workers’ Compensation

January 26th, 2015 No comments

Good Monday to you, dear readers!  Last week, your humble blogger watched in utter horror as his body valiantly but ineffectively fought off the flu.  As rumor has it, as certain strain of Influenza A is not covered by this year’s flu shot, which is of particularly little comfort as your humble blogger didn’t manage to get the flu shot this year.  As I recall, the though was something along the lines of “what are the odds that I would get the flu?”

Well, no doubt, odds had nothing to do with it, and in some applicant attorney’s or lien claimant’s office is a little voo-doo doll shaped and dressed like a striking and handsome defense attorney, with a flu needle embedded deep into the poor doll’s lungs.  Certainly, as Friday rolled around and my humblest of blogs was missing another of those charming blog posts, the villain laughed and laughed.  I hope, sir, that your soul was worth it!

In any case, for better or worse, your humble blogger is back now – but this terrible experience got me thinking – is the flu compensable?  Can a worker claim an industrial injury in the form of the flu?  Some flu symptoms last a long time, and some cause complications… so does your humble blogger have a claim?

After all, our law provides insidious disease and cumulative trauma – so if the office is full of hard-working people not concerned with infecting their co-workers, could the constant exposure to all the coughing, sneezing, and touching be considered an occupational disease?

For starters, let’s turn the clock back to when construction of the Golden Gate Bridge was first started: back in 1933, the Industrial Accident Commission (the predecessor to the WCAB which still nags the WCAB about not calling enough).  In Marsh v. IAC, the commission ruled that “[a]n ailment does not become an occupational disease simply because it is contracted on the employer’s premises.  It must be one which is commonly regarded as natural to, inherent in, and incident and concomitant to the work in question.”

Fair enough… but if the employer’s policy is such that it openly or tacitly encourages employees, or even requires them, to come to work when they’re sick, aren’t the other employees getting sick specifically because of the work conditions in that office/work-site?

The holding in the 1943 California Supreme Court Case of Bethlehem Steel Company v. Industrial Accident Commission was that “when an employee contracts a contagious or infectious disorder he must, in order to recover compensation, establish the fact that he was subjected to some special exposure in excess of that of the commonality, and in the absence of such showing, the illness cannot be said to have been proximately caused from an injury arising out of his employment.”  (Emphasis in original).

But what about influenza?  The applicant(s) in Bethlehem had contracted a contagious eye disease known as kerato conjunctivitis, the exposure for which was sustained in a shipyard.  Anyone can get the flu.

In the matter of Vilarino v. Chromatics (several panel cases, mostly having to do with defendant’s right to credit in applicant’s third-party suit against the flu-shot company), the trial judge held, back in 1999, that applicant’s injury, sustained as the result of a reaction to the flu vaccine administered by a company contracted by the employer to provide voluntary flu shots, was compensable.   But can’t just about anyone get a flu shot?

In Watrous  v. PUSD, applicant, a teacher, contracted Parvovirus, which the WCAB ruled was more likely than not the result of her exposure to hundreds of children.  Doesn’t everyone have occasion to interact with those biological weapons known as kids?

Kane, Canelo and Temple v. WCAB (Baker), a 1976 decision by the Court of Appeal, held a legal secretary’s death from pneumonia secondary to influenza was compensable.  In that case applicant’s widower established that she was more susceptible to colds than other employees because of myasthenia gravis, an autoimmune or congenital neuromuscular disease, and the cold lead her to contract influenza, which ultimately caused her death.  The COA also noted that for a very long time, the secretaries in that office had complained about the extreme variations of temperature due to ongoing problems with the air conditioning.  So, at least according to this Baker, the fact that anyone can catch a cold, and anyone can catch the flu, does not bar compensability.

By contrast, recall, if you will, the case of Reff v. WCAB (writ denied), where the WCAB had rejected applicant’s claim that her industrially contracted pneumonia aggravated her pre-existing common variable immune deficiency, resulting in very serious and debilitating symptoms.  The WCAB held that applicant’s worsening would have eventually happened when any number of things triggered her CVID, which, if applied to the Baker or Vilarino may have resulted in a different finding, given that pre-existing conditions triggered by coincidentally work-related circumstances.

So, from the looks of the relevant case law, something like the flu can be compensable, hypothetically, but you’re probably going to need more harm done than your humble blogger’s ruined week, and to demonstrate something specific to the workplace which increased the applicant’s exposure to the flu, or any other disease (and my theory about the voo-doo doll probably doesn’t hold water…)   Just another example of how the system neglects the suffering of hard-working defense attorneys…

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WCAB: Again, UR Decision Must be Faxed or Called In to PTP w/in 24 Hours

January 21st, 2015 No comments

As will every victory for the employers and insurers, little by little, the gains are chipped away.  So too for the ground gained in Dubon, whereby the WCAB held, en banc, that just about every UR dispute, save timeliness, goes to IMR, where a secret ritual is held and, after invoking the spirit of the medical treatment deity “Medi-Nessisitus,” a ruling is ultimately rendered.

So, your humble blogger now brings you the case of Shanley v. Henry Mayo Newhall Memorial Hospital, a panel decision in which the WCAB held that for a UR report to be timely, as discussed in the Bodam case, all time requirements must be complied with, including being communicated in a timely fashion, rather than just a decision being reached.

In Shanley, both UR decisions were reached within five business days, and the decisions were mailed on the same day that the decision was reached to applicant’s counsel, applicant, and the physician who submitted the request for authorization.

However, the WCAB concluded that there was insufficient evidence that defendant had communicated the denial of authorization by telephone within 24 hours of reaching the decision, even though the UR report reflected that a peer-to-peer had been attempted with the treating physician and a message was left.

Citing Labor Code section 4610(g)(3)(A) (“[d]ecisions to approve, modify, delay, or deny requests by physicians for authorization prior to, or concurrent with, the provision of medical treatment services to employees shall be communicated to the requesting physician within 24 hours of the decision … [d]ecisions resulting in modification, delay, or denial of all or part of the requested health care service shall be communicated to physicians initially by telephone or facsimile, and to the physician and employee in writing within 24 hours for concurrent review, or within two business days of the decision for prospective review, as prescribed by the administrative director” and California Code of Regulations section 9792.9(b)(4) (“[d]ecisions to modify, delay or deny a physician’s request for authorization prior to, or concurrent with the provision of medical services to the injured worker shall be communicated to the requesting physician initially by telephone or facsimile” the WCAB concluded that defendant had failed to establish that the phone call to the treating physician by the UR which appears to have been scheduled as part of a peer-to-peer review, communicated the result of the UR determination.

The panel decision noted that, without an explanation as to the content of the message that was left with the treating physician, there was no basis upon which to conclude that the message communicated the denial of authorization.

The issue of medical necessity was ordered returned to the trial level.

So, dear readers, do you think it’s time for the UR vendors to start preparing a declaration under penalty of perjury that a phone-call or facsimile followed every UR decision?  Or, perhaps, UR physicians should start using the same automated service used by dentists and treating physicians to remind us of our appointments?

Because UR is typically a pretty rushed affair, and timeliness appears to be the prevailing challenge against IMR (other than constitutional grounds), perhaps we’ll see more of this potential weakness exploited by applicants in the near future, and proactive steps should be taken to nip this in the bud.

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Happy MLK Day 2015! And… some more thoughts on 4050 exams

January 19th, 2015 No comments

Greetings, dear readers!  Your humble blogger understands and appreciates that many of the kind workers’ compensation scholars out there, some of which may, in terms of e-mail subscriptions, be called “followers”, have today off work in observance of Martin Luther King day.  As always, your humble blogger urges his readers to not only take a holiday off to rest and catch up on chores, but also to reflect on the reason that so many businesses have their doors closed in observance.

Now, that being said, your humble blogger saw a writ denied case that would tolerate no delay in commentary.  So, without any intended disrespect to the legacy of Dr. King, your humble blogger now brings you the case of Montejo v. United States Fire Insurance.

Therein, applicant sustained an injury to his neck and shoulders as a cumulative trauma.  The defendant requested a report under Labor Code section 4064, which was discussed previously in this post.  Although sub rosa video, along with applicant’s deposition transcript and medical records were sent to this physician, the physician did not examine applicant. (Dear readers, your humble blogger has no experience with the physician named in this case, and so declines to name him.  After all, your humble blogger does not like to name names.)

The 4064 physician wrote a report in which he concluded that applicant was a malingerer and had masochistic tendencies, and that his level of disability did not appears to match his activities in the video.  Defendant sought to serve this report on the primary treating physician, the QME and the AME (your humble blogger presumes that there was an AME for some issues, but only a QME for others).

Applicant objected, arguing that the report would be prejudicial and sought an Order preventing service of the report to any of the relevant medical authorities.  After all, if defendant could get the primary treating physician to comment on the report, even to condemn it completely, then, presumably, the primary treating physician’s report would incorporate the 4064 report, and both could be sent to the QME and AME.

The issue came before the WCJ, who ruled that the report could not be provided to any physician because it was “inadequate.”  The WCJ noted that there had never been an examination by defendant’s 4064 physician of applicant, and that there was no foundation for the 4064 physician’s qualifications to comment on neither the results of surgery nor the claim of psychiatric injury, as the 4064 physician was an internist.  From the WCJ’s position, it appears that there were also several layers of hearsay relied-upon by the report.

The WCAB was not receptive to defendant’s petition for removal, adopting the WCJ’s  report and recommendation and denying removal.  The Court of Appeal, likewise, denied review.

I know, I know, dear readers, not the case of the century.  But, it struck me as interesting and particularly worthy of relating because of the flaws found by the WCJ should be a cautionary tale for us all.

The first thing to recognize is that 4064 is not really in play anymore.  SB-863 amended 4064 to drastically limit the admissibility of these reports.  However, if you aren’t too happy with the PTP or what the Medical Unit sends you, and an AME is not a viable option, you can still get a 4050 exam and report.  That being said, the flaws found in this case’s 4064 exam should be avoided in your 4050 exam to increase the odds of it being reviewed by a PTP, and eventually a QME:

  1. There should be an actual, face-to-face examination;
  2. There should be a listed and review and summary of all medical records and reports;
  3. There should be some foundation laid for the physician’s qualifications, including, but not limited to, a curriculum vitae;
  4. To the extent possible, all conclusions should be explained and supported in detail: it’s very easy to say that an opinion is based on the physician’s “training and experience,” but it would be far better to explain that “symptom X is typically not found in the presence of condition Y as explained in Medical Journal ABC…”
  5. Finally, the report should not rely on “hearsay” too heavily – although what the defense attorney or the private investigator relates to the evaluation physician is likely true and accurate, the report will be more reliable if information is obtained from primary sources, such as medical records and the injured worker him or herself.

As always, dear readers, life offers no certainty except death and blog posts, so take the rambling postings of your humble blogger as worth as much as what you paid for it.  But, once you have engaged in meaningful reflection of today’s holiday, perhaps you can also reflect on this tiny corner of the workers’ compensation world.

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COA: Defendants Entitled to X-Exam Applicants

January 14th, 2015 1 comment

Happy Wednesday, dear readers!

The first week of 2015 is now finally gone – have you made good use of it?  Is your new years’ resolution still sporting a faint heartbeat, or has it died on the vine?

Well, I bring you an interesting case today to distract you from your woes, which I presume you have a plenty, given the fact that you’re reading a workers’ comp blog.  Though of limited applicability, given that the case itself is unpublished, it does stand for the concept that even defendants have rights in workers’ compensation proceedings.  And to think, this all came about because your humble blogger accidentally got involved in a pro-workers’ comp defendant demonstration…

Anywho… the case is that of Ogden Entertainment v. WCAB (Ritzhoff), issued but not published as 2014 yielded its last few glimmers of light.

Applicant Ritzhoff had sustained an injury in 1996, which was found permanent and stationary in 2005.  However, applicant claimed a compensable psyche injury, and his psyche treating physician found him permanently and totally disabled.  When the defendant received a permanent and stationary report as to the psyche injury, it cut off temporary disability benefits, prompting an expedited hearing.  Applicant testified that he was still temporarily totally disabled, but when defendant’s efforts to cross examine him were cut off due to time constraints.

At various hearings that followed, applicant refused to be cross-examined.  The defense position was that it had a right to cross-examine applicant, and that, through its cross-examination, it would prove not only that applicant was permanent and stationary, but also that he had been working and earning money, thereby defeating the claim that he was totally and permanently disabled.

The WCJ concluded that applicant was TTD based on the opinions of applicant’s psychiatrist, and further concluded that the lay testimony of an injured worker would have no bearing on the expert testimony of the psychiatrist.

Defendant filed a petition for reconsideration, but found no assistance there, as the WCAB agreed with the WCJ’s holding.

In response, the defendant stopped paying for treatment, asserting the position that it was denied due process.  So, at another expedited hearing, the WCJ ordered the defendant to start providing medical treatment.  However, although the WCJ ordered the payment of TTD benefits and psychiatric treatment, because applicant continued to refuse to submit to cross examination, no orthopedic treatment was ordered.

Again the defendant sought reconsideration, and again the WCAB allowed the WCJ’s decision to stand, although the panel opinion noted that, ultimately, applicant would have to submit to cross-examination, just not yet.

So, here’s where it gets really fun, and those cold, hard, barely-functioning defense hearts out there can flutter with the faintest signs of joy.

The Court of Appeal panel squinted at the facts and procedural history of this case, and disapprovingly shook its head, like so:

The COA went so far as to quote the United States Supreme Court (called “SCOTUS,” by the cooler kids) to support the contention that cross examination is pretty darn important for due process, and even employers and insurers are entitled to due process in California.  After a brief discussion of various sources of legal authority for the right to cross examine witnesses, especially when a witness is a party to the case, the WCAB annulled the WCJ’s and WCAB’s decisions, remanding the case to down below.

Now, I know this case is unpublished, so you’re not going to have too much luck citing it unless you’re willing to go in for one of your humble blogger’s crackpot ideas, but the opinion is a ready to be copy-pasted into a brief on why you should be entitled to cross-examine any witness.

If nothing else, this opinion should provide incentive for defendants to consider going up to the Court of Appeal on such issues.

Strap in tight, dear readers, it’s going to be a bumpy year!

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COA: Commute for Civilian Ends at Security Gate of, Not Building on Airforce Base

January 7th, 2015 No comments

Hello, dear readers!

I welcome you to “hump” day Wednesday with a published Court of Appeal decision on the topic of going and coming.  As my readers will recall, this blog has had occasion to touch on this topic before, and the rule itself has riddled California tort and workers’ compensation law since the first lawyers emerged to torment civilized society.

The case in Schultz v. WCAB, where Mr. Schultz was employed by Joint Test Tactics and Training as a technical drafter at Edwards Airforce Base in 2010.  The Court of Appeal held that a civilian contractor had finished his commute and started working when he entered the general air force base by passing through a security gate not open to the public, and not when he would have otherwise arrived at the building where he performed most of his work located inside the base.

Your humble blogger was able to secure some footage from the base, although the accident itself was not captured on video:

Apparently, on the date of the injury, applicant was to report to Building 1440 to commence work.  Although defendant argue that applicant had not reached the premises line of where he was to start working because he had not yet reached Building 1440 when the injury occurred, applicant argued the premises line should be identified as the border of the Airforce Base, but also that applicant’s occasional use of his personal vehicle for work should constitute the entire commute as exempt from the going and coming rule.

At trial, the WCJ concluded the injury was compensable because applicant testified to having to work, on occasion, at different locations within the base, and because applicant was using his personal car to get to, around, and from work.  “[I]f the commuting employee uses a method of transportation that benefits the employer by facilitating the employee’s work, an injury during the commute may be compensable where the employee’s use of the vehicle although not expressly or impliedly required by the employer was an accommodation to the employer.”

Defendant sought reconsideration, arguing that the going and coming rule should bar compensability.  The WCAB agreed with defendant, reasoning that “[t]he problem with the WCJ’s analysis is that it focuses on how the employer might possibly benefit by having applicant bring his car to work instead of considering why applicant was in his car on [the DOI] and what he was actually doing at the time he crashed.”  To wit, at the time of the injury, the car was not being driven for any purpose other than a commute.

So, the Court of Appeal took a completely different take.  The COA focused on the fact that work was done mostly in Building 1440, but also around the base.  Furthermore, applicant’s access to the base was granted only because he was an employee of the defendant.

In effect, applicant argued, the entire base was the employer’s premises.  “Because [the employer] controlled Schultz’s access to Edwards [Airforce Base], and [applicant] worked through the base on assignments, he was on the premises of his employer once [applicant] entered Edwards [Airforce Base], and his injury was compensable.

So, dear readers, what do you think – next stop: Supreme Court?  Your humble blogger thinks this may be the end of this case, but who knows?

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CHP Officer Goes Down for WC Fraud

January 5th, 2015 No comments

Alright, dear readers, you remember that CHP officer accused of insurance fraud?  Your humble blogger reported on this matter back in 2012, when Officer Tony Yao was accused of workers’ compensation fraud.  Well, it looks like officer Yao has been convicted, and sentencing is set for the end of January.  (Special thanks to E.V., Esq.)

Now, think back, dear readers, to when you’ve had an actual fraud case that you would like to see prosecuted by the District Attorney.  Whether this is a major fraud case or a slam-dunk petty fraud case, how often have you been told that the good folks enforcing the laws have neither the time nor the resources to handle every single case, including yours?

Now that officer Yao has been convicted, do you think any cases that he may have worked on in the past might warrant a review?  Do you think that, now, there’s going to be more or less in terms of resources available to prosecute workers’ compensation fraud when the district attorney has additional cases to re-litigate?

Workers’  compensation fraud hurts a lot of people – it raises the cost of doing business, and that raise in cost translates to higher prices for consumers and less in available wages for workers.  When a law enforcement officer engages in fraud, the harm resonates further, and robs Californians of law-enforcement tax dollars as well.

Congratulations to the District Attorney for getting this conviction – hopefully it will resonate with any other law enforcement officers, and employees in general, about the consequences of fraudulent actions.

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6 Months of Actual Service to Employer Pre-requisite for Psyche Claim

January 2nd, 2015 No comments

Welcome back, dear readers!  It’s finally 2015 – the long awaited date of everyone who ever watched the famous movie, Back to the Future, Part II.  In that wonderfully entertaining film from 1989, the story’s hero, Mr. Marty McFly, travels to 2015, where we encounter a sneak-peak of what fashion would eventually be like.  In case you’re wondering, this is us casual:

back to the future picture

and this is us in business attire:


Well, 2015 is looking good already!

Anywho, your humble blogger thought we’d start this year off with a straightforward and simple post.  In the recent writ denied case of Bracken v. Team Commercial Construction.  Applicant had sustained an injury all the way back in 1996 after a bit more than two months on the job.  He then was off work for about nine months, before returning to modified duty for a day and then going off work again.  Well, he was finally laid off in mid-June of 1997, with, effectively, a little less than two years on the books.

Applicant then claimed a psyche injury, but, as any defendant would in such a situation, defendant raised the 6-month employment rule of 3208.3(d), arguing that applicant was not employed for six months, because he actually worked less than six months, despite being “on the books” for almost two years.

Labor Code section 3208.3(d) specifically provides that a psyche claim requires that “the employee has been employed by that employer for at least six months.” Does being on the books mean being employed for the purposes of 3208.3?

Well, Wal-Mart Stores v. WCAB, a 2003 Court of Appeal case, held that “employment … mean[s] the performance of actual service for the employer.”  In other words, simply being on the books is not enough.  Accordingly, time spent on temporary disability is likewise not part of the six months.

Now, here’s a thought (or, more accurately, a stretch).  If six months of “performance of actual service for the employer” is the requirement, then what about seasonal work?  Weekend employment only?  Shouldn’t six months be converted into days, and those days of “actual service” be calculated?  An employee working two days a week would then have to wait longer before filing a psyche claim than one working five days.  Again, dear readers, just another crackpot thought.

Welcome to 2015!

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