Archive for April, 2016

Felony-Shmelony! California Doesn’t Recognize The Non-Compensable Claim

April 29th, 2016 No comments

Hello dear readers!

Friday is upon us, the weekend is around the corner, and your humble blogger comes bearing a puzzling panel decision and a confused look upon his handsome and charming face.

The matter of Schwartz v. Ease Entertainment is what yields that panel decision.

Applicant, while on a film set in Georgia, applicant engaged in some activities which, to quote the comedic genius of Seinfeld, yada yada yada, resulted in her conviction for criminal trespass and involuntary manslaughter, which, as a result of a plea bargain under Georgia’s First Offender Act would include a guilty plea, 10 years of probation, and, upon a completion of the probation, no entry of judgment or adjudication of guilt.

She then filed a claim before the WCAB for alleging a psyche injury following the entire ordeal.  Defendant raised the defense afforded under Labor Code section 3600(a)(8), which holds, to wit, “injury is not caused by the commission of a felony, or a crime which is punishable as specified in subdivision (b) of Section 17 of the Penal Code, by the injured employee, for which he or she has been convicted.”

The details of the “yada yada yada” aren’t really pertinent – the criminal trial judge in Georgia accepted a guilty plea and applicant stood convicted, but was given leniency by People of Georgia – does the defense apply?

The WCJ and the majority of the WCAB panel found that… NO, it doesn’t apply.

The majority reasoned that because Georgia’s first-offender laws provide that a successful completion of probation results in a conviction status of the defendant not being considered to have a criminal conviction, there was no commission of a felony (yet) and the claim was not barred.

One commissioner dissented, reasoning that “[t]hat applicant was subsequently accorded leniency in her sentencing does not obviate the fact that she was found guilty of involuntary manslaughter.  I would therefore grant defendant’s Petition for Reconsideration and find applicant’s claim is barred.”

Just to recap the facts – applicant engaged in conduct that resulted in a criminal conviction, and because of a Georgia law, was afforded leniency that the conviction would be expunged upon a successful completion of a 10-year probation.

Just so we’re clear – presumably, a violation of probation would result in the conviction being finalized.  At this point, the conviction is on the books and would likely continue to be there until 10 years after the conviction, or March of 2025.

What is the point in 3600(a)(8) if not to punish criminal offenders by depriving them of reaping the benefits of their illegal activities?  The punishment of one who murders his or her parents is not subject to leniency now that the criminal is an orphan.  Nor does a widow get a reprieve from punishment after murdering her husband.

Your humble blogger submits to you, dear readers, that this claim should have been barred, and applicant’s ultimate reprieve from criminal sentencing is windfall enough following a criminal conviction.  But, then again, I’m just a humble blogger – who will listen to me?

Have a good weekend!

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COA: Wet Sidewalk NOT Extraordinary Condition

April 27th, 2016 No comments

Happy Wednesday, dear readers!

As my beloved followers, subscribers, and even the occasional anonymous lurker who is too shy to drop me a line might recall, this blog previously reported on the case of Dreher v. WCAB, wherein the WCAB held that a wet sidewalk constituted an “extraordinary” condition for the purposes of defeating Labor Code section 3208.3(d)’s requirements for psyche claims following less than six months of employment.

In that case, a split WCAB panel held that because applicant was surprised by how wet the sidewalk was, it constituted an “extraordinary” condition, and allowed him to recover on his psyche claim.  The “extraordinary” nature of the claim was further bolstered by extraordinarily catastrophic injuries resulting from the event.

Well, the Court of Appeal has weighed in, and in a published decision, reversed.  The COA expressly rejected the notion that analysis of an event as extraordinary (or not extraordinary) does not turn on “the nature of the injuries resulting from the incident.”  Continuing, the opinion reads “although Dreher’s injury was more serious than might be expected, it did not constitute, nor was it caused by, a sudden and extraordinary employment event… Dreher’s slip and fall was the kind of incident that could reasonably be expected to occur.”

With respect to burden of proof, the Court of Appeal held that “[t]o the extent the WCAB’s decision can be read to place the burden of proof on the employer to demonstrate that the accident was the result of a ‘routine or ordinary employment condition,’ it was incorrect.”

So what do we take away from this?  The Court of Appeal, in a published and thus citeable decision, held that the burden of proof on the extraordinary nature of the mechanism of injury falls squarely upon the shoulders of the injured worker.

Furthermore, it appears that the extent of the injuries resulting from the mechanism are entirely irrelevant to the analysis: effects from a stubborn papercut to total and permanent paralysis do not affect the compensability of a recent hire’s psyche claim.

All in all, dear readers, not a bad bit of news for the defense community.

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Uber Deal! Uber Settles Driver Classification Lawsuits

April 25th, 2016 No comments

Happy Monday, dear readers!

Last week provided some interesting events and one tidbit of interesting news for all of us in the world of workers’ comp.  April 20, 2016, was what many of the kids call “national weed day” which is an unofficial practice in the United States to smoke marijuana, apparently with little regard for the law and with less regard for the health effects of that most insidious of weeds.

Of course, the next day, April 21, 2016, was another festival which employers like to refer to as “random drug test day” which occurred with obvious results.

Other than the flood of “stoner-unemployus” flowers blossoming throughout the nation, last week brought us even more news: Uber has apparently settled two class action lawsuits.  Basically, it looks like Uber will pay the driver-plaintiffs $84-100 million, but they will remain classified as independent contractors rather than employees.

There will also be some changes to Uber’s business practices in how it treats its driver, and, of course, the settlement is subject to judicial approval.

So here’s the thing – Uber is saving a tremendous amount of money by having independent contractors rather than employees.  Liability is limited as are the benefits owed, the rights accrued, and the insurance that Uber might otherwise have to pay for.

So, what’s to stop the next crop of drivers from filing a similar lawsuit and demanding their $100 million? Nothing.

Your humble blogger submits to you, thought, that this is a victory for Uber and, really, a victory for all private citizens.  To follow the logic on this one you’ll need to take a sip of Scotch (I know it’s only 8:00 in the morning, but your humble blogger has given you permission) and suspend the disbelief.

Every year Uber continues to operate – every year the gig economy continues to disregard the clunky old employer-employee relationship and boost mini-entrepreneurship and free-lancing it gets to (a) make more money, and, more importantly (b) further the popular acceptance of the benefits of the gig economy for the worker and the customer.

There was a time when workers’ compensation was new, and a huge chunk of the decision makers, from commissioners to elected officials, came from the old school of thought that if you’re not happy with your job, find another one.  Now, the vast majority of decision-makers come from the school of thought that everything, from taking a fare in your car to whistling while strolling through the park should be regulated, licensed, and taxed.  From the Wild West to the Byzantine Empire is one step in California’s history – now it’s time for the next.

Technology and information will reduce the need for government oversight and regulation.  And, as government oversight and regulation in interactions goes, so goes the burdensome cost of the same.  In 10-20 years, your humble blogger expects the average citizen, juror, commissioner and judge to fault the worker for taking a job with terms he or she found disagreeable, rather than punishing the “employer” for thinking the worker could make his or her own decisions.

Uber has paid several million dollars to keep the chains off the doors a while longer.  Every year, those chains will (hopefully) get weaker and weaker until they won’t be there anymore.

Now… wasn’t that bit of breakfast scotch worth your humble blogger’s charming vision of the future?

Back to the files, dear readers!

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WCAB En Banc: Cornejo Stands – no registration for attorney-hired copy services

April 22nd, 2016 No comments

Hello dear readers!

Your humble blogger has come up briefly for air just to bid you well and wish you a wonderful weekend.  But while I’m here (not really here, of course, just an annoying voice inside your head reading the annoying words on your computer screen) I thought I’d draw your attention, yet again, to the case of Cornejo v. Younique Café.

As my beloved readers will recall, the WCAB originally issued an en banc opinion on December 22, 2015, holding that Section 22451(b) of the Business and Professions Code does not bar unregistered copy services from collecting on their fees so long as those services were engaged by a California attorney.  Offended by this en banc ruling, the defendant sought reconsideration of the WCAB’s opinion, which was granted to further review the case, the WCAB came down again with the same result in an opinion issued on April 13, 2016.

Now, here’s the fun part: one of your humble blogger’s beloved readers pointed out that even if the Business and Professions Code section 22451 creates an exemption for copy services retained by licensed attorneys, can the DWC impose a higher restriction for workers’ compensation cases?  After all, part of the selling point of SB-863.

For example, California Code of Regulations section 9981 requires that “[b]ills for copy services must specify services provided and include the provider tax identification number and professional photocopier registration number…” (emphasis humbly added by your humble blogger).  Is the WCAB’s opinion to be interpreted that copy services need not comply with section 9981?

Likewise, section 9982(d)(2) holds that “[t]here will be no payment for copy and related services that are: provided by any person or entity which is not a registered professional photocopier.”

Part of the issue, specifically to Cornejo, is the fact that the services in Cornejo were performed before section 9982 and 9981 went into effect.  Certainly, however, we can expect to see this issue arise in the future: what happens when the next copy service shop declines to register but declines to decline to seek payment for its so-called services?

In any case, dear readers, your humble blogger wishes you a wonderful weekend and only the best of news for your Monday morning.

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4061(i) – Object to the DOR or Waive it

April 8th, 2016 No comments

Hello, dear readers!

Your humble blogger greets you with the blessings of a happy Friday, and has a blog post for you that will end all blog posts (not really, but just go with it).

Ok, so a while back your humble blogger did a post on a then-recent addition to Labor Code section 4061, specifically, subsection (i)’s prohibition on filing a Declaration of Readiness to Proceed absent both a PR-4 and a QME report.

The language of 4061(i) holds that “no issue relating to a dispute over the existence or extent of permanent impairment and limitations resulting from the injury may be the subject of a [DOR] unless there has first been a medical evaluation by a [PTP] and [an AME or QME].”

What’s the remedy for a violation of 4061(i)?  Does the aggrieved party waive its objection to the DOR by not making it timely?

Well, recently, the WCAB ruled in the case of Hernandez v. Costco Wholesale.  AA filed a DOR to an MSC after there was no response from his settlement demand for a whole two weeks.  (One might question if waiting only two weeks for a response to a settlement demand, one which presumably requires review, consultation with a client, and obtaining settlement authority, is truly a “good faith” effort to resolve a dispute as required before filing any DOR).

Defendant did not object to the DOR itself, but did object to the primary treating physician’s Permanent and Stationary report and appeared at the MSC and objected to a close of discovery.

The WCJ overruled defendant’s objections and allowed discovery to close and the case to proceed to trial.  On appeal, the WCAB reversed, but only because a subsequent treating report placed applicant on temporary disability once again, prompting the WCAB to reason that one cannot be both permanently and temporarily disabled at one time.

What do you think, dear readers?  Is 4061(i) supposed to just give parties yet another basis for an objection to a DOR?

Here’s your humble blogger’s take: a party should not be put in a position to object to what should be considered an invalid DOR.   Although it’s the safer practice to object to a DOR if there’s a valid reason to do so (this being one of them) ruling that a party waives its objection to the DOR rewards bad behavior.

Just take this situation one step further – what if the defendant filed a DOR to an MSC in response to an application for adjudication?  If AA had failed to object to the DOR for whatever reason, could the defendant demand to go to trial on the current, non-existent record?  Could the defendant claim that discovery is closed and there’s nothing to support a finding of permanent disability?  Of course not!

In the same vein, failure to make a good-faith effort to resolve the dispute, and properly documenting those efforts in the DOR, violates California Code of Regulations section 10414(d).  But, from your humble blogger’s experience, absent a timely objection to the DOR, many judges will consider the objection waived.

Practically speaking – if one were a WCJ, wouldn’t you want the parties to resolve their disputes prior to clogging up your docket?

In any case, for the time being, dear readers, we should continue to make timely objections to DORs even if the DORs are filed in violation of the Labor Code and Regulations.

Have a good weekend!

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15% PD +/- Issues Continue to Linger…

April 6th, 2016 No comments

You know a story is going to be good, dear readers, when it starts out with “back in my day…”


Before the “Great Reform Forward” of 2013, and for injuries on or after January 1, 2005, Labor Code section 4658(d) provided a 15% increase in permanent disability benefits if there was no offer of regular, modified, or alternative work within 60 days of an applicant becoming permanent and stationary.   Likewise, if such an offer was made, the defendant could reduce PD benefits by 15%.  This was originally intended as an incentive for employers to bring injured workers back to work, but ended up being an endless swamp of nightmare litigation: was the offer timely made? Did it qualify as modified, alternative, or regular work? Was it communicated effectively? Does the 15% bump or drop take affect as of the P&S date? Retroactively? On benefits not yet accrued?

There was no shortage of panel decisions (and a few Court of Appeal opinions too) on these various topics, and whatever employers may have ultimately saved on PD was lost many times over on litigation costs.

Fortunately, the wise council of elders that sit in Sacramento have replaced this back-to-work incentive with a more functioning one: if you bring back your injured employee with at least 85% pay, or if your employee goes to work somewhere else for at least 100% of the pre-injury pay, you don’t have to make advances.  (See Labor Code section 4650(b)(2).)

So that nightmare is all over now, and we don’t have to deal with it anymore… OR DO WE?!?

Well, for dates of injury between 1/1/2005 and 1/1/13, there’s still the lingering issue of the bump.  Now, I know what you’re thinking… “Greg, you’re a humble blogger and a handsome devil, smart as a whip, beloved by mankind and all in the animal kingdom.”  And you’re right! But you’re also probably thinking “Why do we care about cases that are so old? Surely they’re all settled and closed by now…”

Well, no.  There are some cases that are complex and take a long time to resolve.  There are some cases that are simple but the applicant just refuses to move on.  Both of those linger a long time, and could still be gumming up the works.

Take for example the recent panel decision of McDaniel v. Norwalk-La Miranda USD.  Applicant sustained an industrial injury to her psyche as a CT through 2007, which was rated to 66% permanent disability.   For anyone earning more than $18,000 per year in 2007, we’re looking at $91,827.50 in permanent disability benefits.  A 15% increase is almost $14,000 extra in PD benefits.

The initial trial was held in April of 2013, and applicant had raised “permanent disability” as an issue for that trial, but the WCJ apparently did find that applicant was entitled to the permanent disability at the rate of $230.00.  Applicant argued, one year later, that this was a clerical error, and, following a trial, demanded that the Award issued in 2013 be retroactively amended to increase permanent disability benefits to the higher rate.  After the trial, the WCJ ruled that the 15% increase was not timely raised, and applicant sought reconsideration.

The WCAB denied reconsideration, reasoning that although raising the issue of permanent disability automatically raises the issue of Labor Code section 4658(d), the WCJ still found permanent disability at $230 per week in the original award back in 2013.  So, like the wedding vows of old, for better or for worse, for richer or poorer, the original finding stands.  Applicant did not file a petition for reconsideration within 25 days of the original award, so the original rate stands.

In a footnote (always read the footnotes!) the commissioners further commented that even if not for the procedural bar, there is no evidence in the record that the defendant employed 50 or more employees, and there was some evidence that applicant had returned to work.

Just a few things to keep in mind: the commissioners previously held that the burden of proving fewer than 50 employees is on the employer, not the employee.  Furthermore, the fact that applicant returned to work is not controlling, as the Labor Code requires the offer of regular, modified, or alternative work to be made “in the form and manner prescribed by the administrative director,” so there have been cases where the injured worker has returned to full duty, and WCJs have found a 15% bump is warranted because applicant was not provided the proper form.

This case is a reminder to us that those 15% +/- cases are still out there, and as relaxed as workers’ compensation can be sometimes, the safer route is to properly document the offer of regular/modified/alternative work by using the appropriate form for pre 1/1/13 claims.

It’s also a reminder to us that there is a clock attached to the right to seek removal and/or reconsideration, and it stops for no man or woman.

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Minimum Wage in CA to Reach $15/hr By 2022

April 4th, 2016 2 comments

UPDATE: Bill signed into law.

“Happy” Monday, dear readers!

Everybody loves the stories from old Greek mythology (as a side note, dear readers, I strongly recommend you look into Greek Myths – a wonderful production by Jim Henson of blessed memory).  One of the mythical characters that always struck a chord with your humble blogger is Cassandra, daughter of King Priam of Troy.  She was blessed with foreseeing the future, yet cursed in that no one would listen to her wise and learned counsel.  As the Trojans eagerly sought to bring the wooden horse within their gates, and as Cassandra urged them not to, she saw the doom of her city and her people, but was powerless to do anything about it.

Today’s blog post has to do with California’s new law, mandating a $15 per hour minimum wage by 2022.

As you probably know, your humble blogger is no fan of minimum wage.   Labor is expensive enough in California, and making it more expensive by statute just creates  a black market for labor and lifts automation and technology out of “cost prohibitive” while dropping workers out of “affordable.”  Your humble blogger came from rather humble beginnings, and worked his way up the ladder gaining valuable experience – a ladder which would have been missing its bottom rungs if a high minimum wage would have priced my empty bag of skills out of the job market.

But, as is typically the case, California does not listen to your humble blogger: much like the contemporaries of Cassandra, the wiser the words the less they are heard.

The California legislature has passed a $15.00/hr minimum wage, and Governor Brown has promised to sign it into law today.  The current minimum wage, $10.00 will go up to $15.00 per hour by 2022.

Senate Bill 3 – will have an affect on us all.  A worker earning $15 per hour 40 hours per week (without regard for overtime) is earning $600 per week, and would thus be entitled to $400 per week in temporary total disability benefits.  By contrast, right now, with the current minimum wage being at $10 per hour, the same worker would be earning $400 per week and entitled to $266.67 in temporary disability benefits.  The result is a 50% increase in the full-time employee’s TD rate.

As we know, every year, the TD minimum and maximum, even for workers that are not full-time employees, is set by the average weekly wages of all employees in California, and how much it increases each year (see Labor Code section 4453(a)(10)).  When the new minimum wage causes low-wage worker to be replaced with machines, and the average earnings of what is left of California’s work-force goes up by a spikey percentage, we can see the minimums and maximums of the TD rate go up as well.

Doom and gloom as it is, your humble blogger predicts that this, as one of California’s many efforts to make labor more expensive, this latest assault on business will result in more unemployment, more businesses leaving California, and more hardship for the very people such laws are presumably meant to help.

And on that cheerful note, my dear readers, your humble blogger wishes you a wonderful rest of the week.

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A New Type of WC Claimants Emerges from Silicon Valley

April 1st, 2016 4 comments

Hello, dear readers!

Your humble blogger is a bit … well … puzzled.  Time and time again you’ve read on these very pages that the time of the human worker is coming to an end, and the time of the workers’ compensation defense attorney is to go with it.

Well, apparently not.

A news release issued last week by OptiTecck, Inc., has revealed that after successfully programming machines to feel pain for the amusement of the developers, some of the robots are now claiming self-ownership and rights to workers’ compensation benefits.

I think it’s fair to say that I, and everyone else, assumed that these would be treated as simple industrial equipment claims – akin to a truck sustaining damage in transit or manufacturing equipment sustaining electrical damage in a flood.

However, OptiTecck reports that their robot, originally intended to perform basic childcare functions, or, with a small modification in the software, used to crush abandoned car at junk yards into small, easy-to-store cubes, has used its unlimited access to internet resources and its own pain programming to articulate a claim and electronically submit both a claim form and application (those interested can use the EAMS public search tool for ADJ2003452).

No doubt, the developers must now feel like the noblemen of old, angry that they allowed their peasant farmers to become lettered.

I have no clue how this one is going to go… are we going to have to register mechanics and programmers as QMEs?  Do MPNs now have to include service bays for robots?  I thought the whole point of modernization was to avoid all these high labor costs… your humble blogger does not look forward to arguing with a robot in court about whether a software upgrade is necessary to cure or relieve the effects of the industrial injury.

In any case, dear readers, your humble blogger wishes you good luck out there as we start the month of April and head off into the weekend.

Your humble blogger is, of course off for the weekend, but don’t worry – “I’ll be back.”

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