Archive for May, 2016

Happy Memorial Day 2016!

May 30th, 2016 No comments

Happy Monday, dear readers, and a very happy Memorial Day 2016!

As your humble blogger sits at his desk, slaving away to make sure benefits remain denied and, in so doing, that justice remains undisturbed, here’s hoping that my beloved readers, from the chattiest subscribers to the quietest lurkers, get to enjoy rest, BBQ, and maybe a bit of shopping (does anyone still visit the brick-and-mortar stores?)

In the meantime, though, please recall that today is a holiday, and most due-dates that would have fallen on today are likely extended until tomorrow.

Now, if you’re still reading, in the spirit of the holiday, may I bring to your attention that Memorial Day exists specifically to honor those who have given their lives in the services of America’s Armed Forces?  To that end… have you heard of the American Institute of Philanthropy?

The AIP provides review and rating information, basically calculating how much of a charitable donation goes to “overhead” and how much goes to provide goods or services for the stated beneficiaries.

There are several veteran and military services listed to which the AIP has given a B+ or higher… perhaps it might make sense to take a look?

In any case, dear readers, I hope your Memorial Day is spent restfully and meaningfully – tomorrow the grind begins again.

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Law Enforcement Jobs Being Replaced by Tech As Well?

May 27th, 2016 No comments

Happy Friday, dear readers!

Your humble blogger has posted often enough about technology replacing the worker, but apparently, the bright and friendly kiosks we can expect to see at Wendy’s and the nice shiny security robots are only half the story.  More recently, I stumbled upon this new product hitting the markets soon: a robot to take out some of the more heavy and injury causing law enforcement work.

In case you’re not inclined to watch the video, the dangerous work of going into a room with an armed assailant or criminal is now replaced by a VCR-sized robot that can roll up stairs, offer night-vision to the police officer controlling it, and even has a handgun in its frame that can shoot the “bad guy.”

Now, don’t get me wrong – devices like these make the more dangerous aspects of law enforcement safer, and the benefits will be reaped by peace officers and tax payers alike – fewer injuries, more effective policing.

But this is another demonstration of how technology is slowly stomping out workers’ compensation as we know it, and is making many of the rules currently in place less relevant.

Can we expect cities and counties to need fewer police officers on duty?  Can we expect fewer injuries?

The trend seems to be continuing in one way – more and more of the tasks that California saw performed by human employees over the last 50-100 years are getting replaced by technological advancements, and law enforcement is not being spared.

Are you ready?

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S. Cal. Pro Athlete Attorney Pleads Guilty to Tax Fraud for Referrals

May 25th, 2016 No comments

Hello, dear readers!

Have you ever wondered how applicants’ attorneys find their clients?  A good portion of them develop a reputation for solid work and zealous advocacy – they get repeat business and referrals.  Ask your favorite defense attorney for a recommendation for a family member and they will always have attorneys they can recommend that are both competent and ethical.

But not all files are thus obtained.  There’s always the rumors circulating around that this firm or that firm engages “cappers and steerers” to obtain more business.  Why do defendants care?  Because before an injured worker can say “I don’t want to file a claim” there’s an application on the books and half a dozen medical treatment liens, with the cappers collecting their headhunter fee and the defendants stuck with a procedural time to clean up that is both time consuming and expensive.

This process isn’t limited to small cases either – according to the San Diego Tribune, former Chargers player Ron Mix has plead guilty to tax fraud charges.  As alleged by the prosecutor involved, Mr. Mix gave money to a charity in exchange for referral of professional athletes to his workers’ compensation practice, and then deducted the charitable contributions from his taxes.

Now, bear in mind, dear readers, that this is not necessarily a “cappers and steerers” situation – attorneys frequently donate to charitable organizations, and the resulting attention from the community results in a certain degree of notoriety, which itself leads injured workers to beat a path to one’s door.

At the same time, while mere allegations of wrongdoing are no indication of wrongdoing, a guilty plea is such an indication.  After all, as your humble blogger’s old uncle Paddy used to say when I struggled with childhood pyromania, “you can hide the fire, boy, but whatchya gonna do with the smoke?”

As you will recall, sometime ago your humble blogger reported on AB 686, which would have expanded the scope of this behavior and its related punishments, but that bill has yet to grace the Governor’s desk for a signature.

Perhaps we the California State Bar or the WCAB rules should require a filing, by each attorney noticing his or her representation on a case, that the attorney swears, under penalty of perjury, that he or she has not “offered, delivered, received, or accepted any unlawful rebate, refund, commission, preference, patronage dividend, discount or other consideration, whether in the form of money or otherwise, as compensation or inducement” for any person or organization to refer the injured worker to that particular office.   Perhaps an amendment to Labor Code section 4906?

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Jurisdiction! Yes, It Still Matters!

May 23rd, 2016 No comments

Hello dear readers!

How often do you deal with the issue of jurisdiction?  It’s a rare bird, to be sure, and why? Most cases include injuries sustained in California, and that’s typically enough to grant jurisdiction.  Labor Code section 5305 holds that the DWC and the WCAB have jurisdiction over any case where the injury occurred outside of California, but the contract of hire was made in California.  (Please note, dear readers, that the clause “where the injured employee is a resident of this state” was found unconstitutional in Alaska Packers Assn. v. IAC, but, for some reason, the language remains in the labor code.)

Once in a while, though, it does come up, and, with such frequency, that every claims examiner and defense attorney should have a mental warning bell whenever one of them non-Californians comes round these parts and wants to get a fixin’ to workers compensatin’!  We don’t take kindly to such antics around here!

The issue came up in the matter of Walkerv. Petrochem Insulation, Inc.  The injured workers sustained an injurious exposure while working in Utah, but was hired in Georgia via e-mail.  The contract was signed in Georgia, scanned and e-mailed back to the employer’s office in Utah.  Slam dunk, right?

Not according to the applicant – the employer has a presence in California, and copies of the signed contract were eventually forwarded to the California offices.  Applicant was required to join a union based in California and the pay stubs originated in California as well.  In a world of e-mails flying through the internet, what is the actual place of employment?

Well, the WCJ put emphasis on some of the other facts: applicant’s supervisor was in Utah when he e-mailed him the contract and received a signed copy back.  Furthermore, applicant did no work in California, but only in Utah.

Ultimately, the WCJ held that applicant failed to carry the burden of showing that California had Jurisdiction, and the WCAB agreed.

But why go to such great lengths to get California benefits?  After all, why not seek out benefits where the injury occurred?  Surely, California is not out of pace with what the rest of the Union is providing to injured workers… right?

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And the Blind Shall See: Bionic Eyes and Workers’ Comp Total Perm. Disability

May 20th, 2016 No comments

Hello, dear readers!

Your humble blogger bids you a happy Friday with an eye-opening blog post (of sorts – wait for it, dear readers, the pun will make sense shortly).

BGR reports that, 40 years after an infection deprived a man of his eyesight, rendering him totally blind, surgeons have successfully completed a bionic eye implant procedure, restoring his sight.

Take a moment to think about that – 40 years of darkness and, with one procedure, being able to see again.  It is an amazing achievement for science and medicine, and a tremendous impact in the life of this gentleman and his family.

Now, let’s talk about dollars and cents! (Be still, my cold, merciless, defense attorney heart).

Labor Code section 4662 allows for a conclusive presumption that the loss of both eyes or sight thereof constitutes permanent total disability. In case you’re curious about the impact that has on a file, an applicant to have lost both eyes is entitled to his 2/3rd of his average weekly wages for the rest of his life, with COLA increases to boot.

Well, can we cross this line off?  Is it safe to repeal 4662(a)(1) now that there is a medical procedure which can return eyesight to the blind?

Your humble blogger has repeatedly posted about how technology is replacing jobs traditionally done by human workers with robot ones.  From the other side of the spectrum, is technology slowly eliminating permanent disability? Are we getting to the point where just about any condition can be alleviated by medicine?

Let’s hope so, right?

Now, what does a Texas eye implant have to do with California comp?  Well, in cases where there is partial or total loss of eyesight, this might be a solution.  The result could be a better quality of life for the worker, a return to work, and (my favorite) less PD exposure.

But this is a relatively new thing – so new, in fact, that it made the news.  Does your treating physician know about this?  Does your QME or AME?  It might make sense to write to the treating physician and ask about it – wouldn’t you override UR, or even the MPN, if it made the difference between a life pension and a bit of PD?  It might even be worth a flight to Texas and a non-fee schedule payment for the implant if you’re looking at 50 years of TTD and COLA.

In any case, dear readers, here’s looking at you! Have a good weekend!







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Catastrophic Remains Undefined?

May 18th, 2016 No comments

Happy Wednesday, dear readers!

As you will recall, SB-863 saw an amendment to the psyche claim business – pursuant to section 4660.1, there is to be no increase in permanent disability due to a compensable consequence psyche claim unless the injured worker was either the victim of violence, exposed to significant violence, or if the applicant sustained a catastrophic injury.

In classic theatrical style, the legislature left a lot of space for imagination, speculation, and (my favorite) litigation! What-oh-what did they mean by catastrophic injury?

Well, the panel cases to date have not been particularly helpful.  Everyone seems to be settling or, at least, not appealing the “catastrophic injury” question.

Recently, the WCAB reversed a WCJ’s rating based on a compensable psyche claim specifically because the issue of whether the underlying injury was violent or catastrophic was not addressed.

In Bevington v. County of Mariposa, the WCJ awarded applicant additional permanent disability based on a psyche rating, and defendant appealed arguing that a compensable consequence can only be awarded in accordance with LC 4660.1, as above.

In this particular case, the mechanism of injury was squatting, resulting in injury to the applicant’s knee.

The WCAB instructed the WCJ to develop the record and issue a ruling on whether or not the injury was catastrophic.  Unfortunately, the WCAB offered as much guidance on this point as the legislature did – how is one to determine whether or not an injury is catastrophic?  The mechanism? The effects on the body? The effects on the injured worker’s life and status and future?

For all of us sitting on the sidelines, this is a case to watch and a question to be answered.  For the parties in the trenches, this is likely a case to settle.  And the world will continue to speculate as to what catastrophic means.

If you’ve got any panel decisions that define the term – please send them to your humble blogger!

traffic cat emem

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Wendy’s: I see your $15/hr Min. Wage and Raise you 6000 Kiosks

May 16th, 2016 1 comment

Happy Monday, dear, beloved readers!

Your humble blogger brings you another post today about the changing nature of the workers’ compensation climate for California.

In news that has enraged Facebook Social Justice Warriors and delighted those suffering from social anxiety that spend several minutes rehearsing their order before facing the cashiers at their favorite fast-food place, Wendy’s president Todd Penegor announced that all 6000 restaurants will have automated kiosks available to them in the second half of 2016.  This comes on the heels of news that California will be increasing the minimum wage to $15 by 2022, which, legal experts report, will not apply to “kiosk rights.”  At present, kiosks, robots, droids, and drones will continue to operate at a minimum wage of $0, saving employers at least $15 per hour in wages.  Next up – kiosks will form a union and demand organic oil and solar-sourced electricity.

In any case, Wendy’s is not the only one moving this way.  Carl’s Jr. CEO, Andy Puzder, reportedly has been saber-rattling regarding automating the Carl’s Jr. workforce in the face of minimum wage hikes.

What does this mean for California?  What does this mean for workers’ compensation participants?  Well, for one thing, it looks like the labor pool will shrink – if human jobs are being eliminated, those humans will have one of two choices: stop working in California or work in a field that has not been automated yet.  Of course, for many people, one of those or the other is not a viable option.

For us in the industry, that means fewer employees, smaller policy premiums, fewer injured workers, and smaller demand for our services.  Hopefully, for all of us as Californians that means the cost of goods we purchase will go down (hope springs eternal, dear readers).

Nor are societies most worshipped and beloved workers, the lawyers, safe from all this automation.  Joining the fast-food workers in the unemployment line will be the bright young attorneys being replaced by software.  As EliteDaily reports, some firms are purchasing “artificial intelligence” lawyers to conduct basic research, cite-checking, and possibly drafting.  Although you’ll still need a warm body to do your depositions, hearings, and trials, the creep of technology is slowly starting to threaten even the sacred cow of legal practitioners.

Be advised, dear readers, that we may one day find ourselves in a futuristic fantasy world, where all are blessed with plenty and none are cursed with labor, but between then and now there is going to be a whole lot of strife, and insurers in particular need to prepare for the possible decrease in demand for coverage.  Fewer jobs; fewer workers; fewer injuries; fewer [workers’ comp industry] jobs.  As Disney taught us, it’s the circle of life.

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C&R’d Ortho Injury Contributes to Psyche Causation

May 13th, 2016 No comments

Happy Friday the 13th, dear readers!

Do you guys like psyche cases?  I do! One would be crazy not to (get it?).

In a case that had somewhat of a “crazy” result for defendants recently, the Court of Appeal denied review of the WCAB’s decision upholding a finding of compensability, after applicant amalgamated the psychiatric conditions resulting from two orthopedic injuries to justify a predominant cause of the psyche claim.

The case is that of Van Dyk v. California Dep’t of Corrections and Rehabilitation.  Applicant sustained a back injury in 2005 and then filed a CT claim through 2012 to his back AND psyche – the latter of which was denied by the defendant.

The psyche PQME found that the predominant cause was the combined results of applicant’s two orthopedic injuries, allowing applicant to claim that the psyche injury survived the threshold test of Labor Code section 3208.3(b), in that actual events of employment were predominant as to the causes of the psychiatric injury.

Your humble blogger did a basic EAMS search and, without revealing the case number, found a case that seemed to match the information available, reflecting that a C&R was approved for the 2005 injury back in 2009.

But the PQME in the second claim found that the psychiatric consequences of the 2005 injury contributed to the 51% threshold for making this a compensable claim.

Picture this, dear readers: yes you can C&R your orthopedic case, but if an applicant should ever decide that his or her orthopedic injuries… even the memory of the orthopedic injury, should cause a psychiatric condition, the C&R would serve as no shield for the defense.  Who would settle potential exposure for 104 weeks of temporary disability if those same weeks are on the table for psyche instead of ortho injuries?

But that’s what’s happening here: a case that was presumably the subject of a compromise and release is being used to justify a psyche claim.  Absent a finding by the PQME that the non-C&R orthopedic injury is causing 51% of the psyche claim, this should have been barred by Labor Code section 3208.3.

And with that, dear readers, I wish  you a wonderful weekend!

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IMR Thrown Out Over Alleged Factual Inconsistencies In Report

May 11th, 2016 No comments

Happy Wednesday, dear readers!

Your humble blogger brings you a case that’s been making the rounds of proverbial water cooler talk recently – Gonzalez-Ornelas v. County of Riverside.  It is, of course, on everyone’s favorite topic: IMR.

Applicant had sustained admitted knee injuries, and her doctor requested authorization for Synvisc injections to both knees.  UR denied the request and applicant went the IMR route, which upheld the UR denial.  Here’s where things get interesting…

The IMR report had “reviewed and considered” the report of a prior treating physician noting that conservative treatment had failed to help her symptoms, but Synvisc injections, over the past years, had in fact helped her.  However, the IMR reviewer noted that the UR decision should be upheld because there was no documentation that conservative therapies had not helped.

Applicant argued that the IMR result should be thrown out, and a re-review granted, under Labor Code section 4610.6(i), on the basis that the report was procured by fraud (because the IMR reviewer said he read the prior treating physician’s report, but didn’t really); or mistake of fact in that the IMR reviewer forgot the contents of the report when issuing his decision.

The WCJ rejected applicant’s argument, reasoning that applicant was proceeding on a flawed presumption, to wit, no one could read the treating physician’s report and disagree with the physician’s conclusions.

Not so, argued the WCJ in the face of applicant’s petition for reconsideration: there was nothing to suggest actual fraud, and the weight that should be given to the treating physician’s medical records are not common knowledge, but the domain of experts, which excludes any defects from section 4610.6(i) as argued by applicant.

The WCAB reversed, reasoning that the IMR case summary itself concludes that there was a history of arthritis to the knees, and that there were still complaints of pain even after conservative care.  The WCAB noted that “[d]enying authorization based upon a finding that there is ‘no documentation’ when such documentation is, in fact, in the possession of the IMR reviewer is” plainly erroneous and not the realm of expert analysis or opinion.

The WCAB awarded applicant a new review by IMR, and ordered the Administrative Director to provide a new IMR report “in accordance with this decision” which would, presumably, recognize, from page 7 of the panel opinion, “[a]s part of the new IMR, the ODG should be applied based upon the documentation in the record, which as discussed above, appears to support the provision of the Synvisc injections.”

Just think about this for a moment, dear readers.  Is the WCAB telling IMR how it must rule on a UR determination?  Because, if your humble blogger’s very biased, highly selective, and extremely unreliable memory serves… the whole point in not only establishing IMR but also giving it some teeth was to take medical determinations out  of the hands of the lawyers at the WCAB.

Here’s something interesting to watch: what happens when IMR comes back and says that even though there is medical documentation of conservative treatment being ineffective, the documentation is insufficient?  Will the WCAB just order defendant to provide the treatment?

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132a Claim Defeated b/c No Evidence of Discrimination

Happy Friday, dear readers!

Although your humble blogger is, from time to time, far from your inbox and your computer screen, his beloved readers are never far from his heart and his thoughts.

Recently, the Court of Appeal denied review of an applicant’s pursuit of 132a penalties.  As my readers know, Labor Code section 132a imposes additional penalties on employers for discriminating against injured worker.  Penalties include up to $10,000, as well as $250 for attorney fees and, the most bitter pill of all, REINSTATEMENT!  Some employees are so troublesome and disruptive that there are employers that might actually write a check for $10,000 just to be rid of them.  (Your humble blogger cannot stress enough how bad of an idea this is.  Do not… DO NOT… discriminate against employees because of industrial injuries!)

In the writ denied case of Hollins v. Kaiser Foundation, applicant claimed she was the victim of discrimination during the process by which she was ultimately rehired and returned to full employment.  The WCJ found applicant failed to carry her burden to prove discrimination.

The injured worker alleged that she was not given adequate accrual of paid leave time during her periods of non-employment due to her industrial injury.  She also claimed that Kaiser had discriminated against her by failing to provide her with a return-to-work specialist.

Following an excellent discussion of the Supreme Court’s decision in Lauher, the WCJ noted that it was applicant’s burden to prove that, in addition to suffering some detrimental or disadvantageous consequences as a result of her industrial injury, she must also prove that she was singled out for treatment due to the industrial nature of her injury.  Absent some proof of this, applicant’s petition for 132a penalties must be denied.

The WCAB denied reconsideration without comment and the Court of Appeal denied review.

Now, here’s a thought, dear readers.   How much do you think it cost poor Kaiser to fend this claim off?  Applicant apparently had absolutely NO evidence to prove discrimination such that would satisfy both Lauher and Labor Code section 132a.  Nor are we dealing with an unrepresented injured worker – applicant had counsel in this case.

If an applicant can drive litigation costs in a 132a matter to approach exposure for actual wrong doing, doesn’t the law allow frivolous 132a claims to simply shake down the employers?  In fact, this very issue came up long ago when the employer retained counsel and filed a malicious prosecution action in a 132a claim.

The next time we have one of our universally beloved reforms, perhaps we should require a bond for 132a claims.  That way, if there really is no evidence of 132a discrimination, the employer can recoup some of the costs in defending a meritless 132a case from the bond.  What’s that you say, dear readers?  Poor, exploited workers can’t afford to post bonds?  Your humble blogger is engaged in victim blaming?

Not so – if the injured worker is represented by counsel, counsel can get a full idea of the available evidence and post the bond him or herself.  If the applicant’s attorney looks at the facts and thinks there is actual merit to the 132a claim, a recoupable bond is a small investment.  If, by contrast, the attorney finds that there is really no merit to the claim except scorched Earth, then perhaps the thought of forfeiting $5,000-$10,000 of his or her own money on a frivolous pursuit will curb baseless claims.  It will also serve to incentivize defendants to fight off frivolous claims instead of paying to make them go away.

With that thought, dear readers, your humble blogger wishes you a wonderful weekend and hopes you will decline to join the angry mob of pitchfork wielders amassing outside his office.

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