Archive for August, 2016

SB897 Passes Assembly and Senate; Definition of “Catastrophic” More Fleshed Out Now?

August 29th, 2016 No comments

Happy Monday, dear readers!

Your humble blogger, on a few occasions, has raised the question: what the heck is a catastrophic injury?  After all, we really don’t know what sort of injury would prompt a compensable consequence psyche injury to trigger liability for permanent disability (or possibly temporary disability), right?

Well, enter Senate Bill 897 – and this one is a real beauty!

SB897 passed the senate and the assembly recently, and would basically extend the wage continuation for injured public safety employees (firefighters, police officers, sheriff’s deputies, etc.) from one year to two years, if the employee sustained a “catastrophic injury at the hands of another.”  Now, whatever the merits of replacing two years of temporary disability with two years of wage continuation at the expense of tax payers, this would give us a working definition of the term “catastrophic.”

Labor Code section 4660.1(c)(2)(B) already provides with some parameters for a catastrophic injury: “including, but not limited to, loss of a limb, paralysis, severe burn, or severe head injury.”

SB897 defines a “catastrophic injury at the hands of another” as “severe burns, severe bodily injuries resulting from the collapse of a building, or severe bodily injuries resulting from a shooting, stabbing, or battery.”  Well, 4660.1 already provides that being a victim of a violent act or direct exposure to a significant violent act makes the compensable consequence psyche injury eligible for PD and TD, so, in that sense, there’s already overlap with the “shooting, stabbing, or battery” and the same applies for “severe burns.”

But the last component, “severe bodily injuries resulting from the collapse of a building” gives us an idea of how serious the injury needs to be to qualify as catastrophic.  It’s not the effect on the injured worker’s life.  It’s not the effect on the injured worker’s earning capacity.  It’s something akin to being in a building collapse!

Your humble blogger has been doing this workers’ comp game for a while now, and I can tell you that simply being exposed to the workers’ compensation system – as an injured worker, employer, attorney, or judge – should qualify a person for having sustained an injurious exposure of a severe and catastrophic nature.  But we practitioners must brush it off, soldier on, and soothe our wounds with sugared pastries and grapes refined into their superior form.

But an injury that results in an injured worker having to go through the workers’ comp system, being kept in limbo while becoming an unwitting expert in the art of Kafka, does not qualify as “catastrophic.”

Burned to a crisp? Catastrophic.

Shot, stabbed, or beaten up? Catastrophic.

Involved in a building collapse or plane crash or train derailment? Probably catastrophic.

You can’t work anymore so you lost your house because you can’t make payments on it and it’s hard to get hired somewhere else because of a mixture of a shifting economy and the residuals of your injury? Probably not catastrophic.

What do you think, dear readers… is this too much of a stretch?  Or can we say that the legislature has given us an idea of what to expect in a “catastrophic” injury?

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WCAB: 1-year Statute Applies to Specific Injury; Knowledge of Industrial Causation Irrelevant

August 22nd, 2016 No comments

Happy Monday, dear readers!

Are we refreshed? Are we relaxed? ARE WE READY FOR WORKERS’ COMP?!?

I know, I know, dear readers, me neither…

Monday mornings are certainly made bearable with a cup of coffee in hand… but wouldn’t a glass of wine make them more enjoyable? Speaking of wine, I present to you the recent panel decision in the matter of Ostini v. Alma Rosa Winery & Vineyard.

Applicant was a hostess in a wine tasting room and sustained an injury when she drove home from work on April 5, 2008 and was in a car crash.  The application was filed on February 6, 2013.  That’s right, dear readers, well within five years from the date of injury, but well after 1 year.

Defendant asserted a number of defenses in rebuffing the claim: statute of limitations under Labor Code section 5405, AOE/COE (presumably citing the going and coming rule), and the intoxication defense of Labor Code section 3600(a)(4) (applicant testified that drinking wine at work was “allowed” but we never get to find out if the employer’s acceptance of an employee drinking on the job somehow translates to being liable for injuries sustained while driving home).

The WCJ ruled that the statute of limitations does not bar the claim because the statute runs from when “the applicant attains knowledge that the injury is industrial.”  The panel, however, reversed, stating that “knowledge of industrial causation is not relevant to the date of injury for specific injuries.”  Tolling could have occurred if applicant had advised her employer of the injury and the employer failed to provide a claim form, but there was no evidence in the record that applicant ever told her employer about the injury.

The WCAB further disagreed with the WCJ’s reasoning that defendant suffered no prejudice as the result of the delay in filing a claim, and thus the statute of limitations could not be raised.  “Unlike the doctrine of laches,” the panel opined “there is no requirement of prejudice for a defendant to invoke the statute of limitations.

This is an interesting point to your humble blogger: first and foremost, defendant certainly did suffer prejudice in a nearly 5-year delay of filing a claim.  Defendant has lost all rights of medical control and all benefits of medical observation for the period between the date of injury and the date of filing.  Any number of injuries or conditions could have occurred over those five years that would have aggravated or even subsumed applicant’s auto-crash related injuries. 

Furthermore, five years is a long time to expect evidence, whether physical evidence or witnesses, to stick around.  An employee-witness on the night of the injury might be a disgruntled ex-employee five years later!

The WCAB ruled that the claim was time-barred, reversing the WCJ.  Though it took nearly 8 years from the date of injury – a take nothing is a take nothing.  I’ll drink to that!

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UBER to Deploy Self-Driving Cars; Where Does That Leave Plaintiff-Drivers?

August 19th, 2016 4 comments

Happy Friday, dear readers!

It’s no secret that your humble blogger is tickled pink at the idea of technology providing a safer and more cost-effective way of delivering goods and services to the population.  In fact, it’s the opposite of a secret… your humble blogger screams it from the mountain tops and pours it unendingly into the virtual pages of this elegantly named “blog” … so much so that some of my more confused readers have demanded their money back from subscribing.

Anywho, UBER has been in the news recently with respect to its massive litigation in trying to legally answer the question: are UBER drivers employees or… something else?  Well, Bloomberg reports that UBER’s $100 millon settlement has been rejected by the class action Judge.  UBER itself has taken a fairly hard stance saying its ready to continue litigating these cases.

Well, if you’re wondering why – why incur the chilling effect litigation has on investors when you’ve already gotten to the point where you could likely afford to make the drivers employees and still be profitable.  UBER is, after all, no longer David but a Goliath of sorts.

Your humble blogger’s thinking dwells to the Lays of Ancient Rome, as spake brave Horatius:

“Haul down the bridge, Sir Consul;
With all the speed ye may:
I, with two more to help me,
Will hold the foe in play.
In yon strait path a thousand
May well be stopped by three.
Now who shall stand on either hand,
And keep the bridge with me?”Horatius defends the bridge at Rome

Now, on the naively optimistic chance that some of you are still reading this, allow me to explain further what I mean.

In other news, Bloomberg has reported that Pittsburgh will enjoy the benefit of self-driving cars, with a human-driver supervisor on board, to gradually phase out its purely human-driver UBER cars.  Just think about that for a minute – if the brave attorneys representing UBER in court can delay resolution of the matter long enough, it won’t really matter whether UBER drivers are employees or independent contractors – they’ll all be out of work anyway.  Litigation is a yon strait path, indeed.

UBER is in that unique position where it is experience the outrageous costs of a human work force with modern Labor Laws, but has in its arsenal both the technological network and the monetary resources to replace that workforce with automation.

While UBER does the heaving lifting in forming a breach in legislation for self-driving cars, its lowering the cost of following suit for competitors and other industries.  The general trend across the board is towards replacing human drivers with self-driving cars and trucks (soon to be followed by boats and airplanes).

Think of how much cheaper it will be to get from point A to point B when (1) freight trucks stop for gas and not sleep or food; (2) couriers stop to recharge batteries, not to take breaks; (3) the flow of goods and people does not stop for vacations, sick leave, or injuries; and (4) customers do not have to pay the costs of overtime, workers’ compensation insurance, etc.

Vroom-Vroom, dear readers… and have a good weekend!

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AB 2883: Making It Harder For Officers/Partners To Escape the Comp System

August 17th, 2016 No comments

Hello dear readers!

As you all know, once in a while I do a blog post here or there on the subject of workers’ compensation. As wonderful as a system as it is, there is a tiny class of Californians that are cruelly denied its benevolent coverage.  I’m speaking, of course, of those entrepreneurs and titans of industry –the small business owner, the partner in a law firm, the shareholder and officer of a corporation – the guys that make the world go round!

Under Labor Code section 3351(c), the term “employee” does NOT include the officers and directors of a private corporation where those officers and directors are the sole shareholders of the corporation, unless they elect to be.  The same goes for “all working members of a partnership or limited liability company” under subsection (f).

Well, the state Assembly Committee on Insurance has introduced AB No. 2883, which would amend sections 3351 and 3352, which would allow an officer/shareholder to be exempt from workers’ compensation coverage only if he or she owns at least 15% of the outstanding stock.  Both partners and officers would have to prepare a written waiver signed under penalty of perjury.

In short, AB 2883 would require action to be exempt from workers’ compensation, rather than requiring action to come under the workers’ comp rules.  Just for fun, ask anyone who has a hard time paying their bills if they would rather have workers’ comp coverage or a pay raise (or a job) and you’ll see why limiting the people who can opt out of workers’ comp even further is not a welcome move.

Your humble blogger respectfully submits that this is, to use a highly technical and legal-based term, a “bad law.”



Not every business owner is a savvy and handsome young adventurer like your humble blogger.  Right now, there are plenty of people who have businesses with no employees and who think (correctly) that they don’t need workers’ compensation insurance because they can automatically opt out.  That’s great – there’s no need for extra expenses and extra paperwork, especially when small businesses are trying to keep the lights on and make ends meet.

Imagine two gentlemen are equal partners in a house-painting venture with no employees.  What if one of them gets hurt?  Is there suddenly an “illegally uninsured” case to be had? Is there liability for whoever hired them as independent contractors to paint a house? Why are we even discussing this…?

I don’t know if this proposal was the result of lack of sleep or a fiercely competitive round of “who can draft the most ridiculous legislation possible” over at the state capitol, but in either case, this is bad law.

California is losing businesses (and residents) every year to other states.  No, they’re not fleeing from AB 2883, but AB2883 is another example of the thinking in Sacramento, and how divorced it is from the people trying to make a living in this State.

So, the next time you’re playing golf with your state assemblyman or drinking coffee with your state senator, mention that your humble blogger says to set AB 2883 on fire, and dance around the ashes singing: “Greg was right; you were wrong; you should have listened all along…”

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Chipped Tooth Does Not Entitle IW To Complete Lifetime Dental Treatment

August 15th, 2016 No comments

Happy Monday, dear readers!

Your humble blogger is back at it with a spring in his step and a song in his heart, denying benefits with the left hand and defeating liens with the right.  But, life being so sweet has given this care-free defense attorney a proverbial tooth-ache, so a workers’ compensation post touching on dental treatment is absolutely appropriate.

Recently, the Court of Appeal denied review following a split panel’s decision on an applicant’s claim of right to medical treatment in the form of dental care.

Applicant sustained an admitted injury on June 1, 2004, when she was assaulted by a psychiatric patient.  She sustained injury to various body parts including her tooth and head.  The claim was the subject of an award, issued in February of 2013, which included future medical care for, among other body parts, the tooth and head.  Down the road, a dentist requested authorization to extract tooth 18 and insert a cantilever bridge anchored on tooth 19 and tooth 20.  The treating dentist noted that the fracture to tooth no. 18 was NOT an industrial injury, but its extraction was necessary to fit a bridge on 19 and 20, thereby relieving the symptoms of the industrial injury.

At trial on the dental treatment issue, defendant argued that tooth 18 was not hurt during the original injury, and so was excluded from a future medical award.  The WCJ rejected applicant’s claims, reasoning “[w]hat remains is an effort to bootstrap ‘tooth’ into any dental care that Applicant might require.  Such an effort does not constitute a valid basis for imposing Applicant’s current dental problems upon this employer.”

The WCAB majority concurred that it was too late, more than 5 years after the date of injury, to amend the WCJ’s original award to include all the dental care one could imagine.

My dear readers can probably attest to the fact that dental care can get expensive, especially when the worker chips a tooth for his or her employer, and the employer eats the entire mouth.

The dissent took the position that the unrebutted evidence was that the dentist’s proposed treatment was a prerequisite for treatment of the entire mouth and jaw, and that, as the jaw was part of the “head,” treatment should have been provided under applicant’s future medical award.

Your humble blogger would like to submit that his reading of the available information of this case was that we have something rare before our eyes – a common sense result.  Applicant chipped her tooth during the assault and the future medical care was for the tooth she chipped.

Had she been entitled to future medical care for her lumbar spine, labeled as “back” on an award, that treatment would not have included treatment for skin cancer due to sun exposure to her back.

Nor does an award for future medical care entitle her to treatment for hearing loss, just because her ears (and her hearing) are part of her head.

But, don’t just “get it and forget it,” dear readers – this case could have gone the other way.  Let this be a reminder to us all to be precise in our language when settling our claims with future medical awards to be left open – let us describe in detail the body part injured and the NATURE of the injury.  Future medical care for one harm does not mean future medical care for all harms, right?

Now go out there and get em!

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Blast From the Past: Industrial Injury to Eye… Glasses?

August 12th, 2016 No comments

Happy Friday, dear readers!

Your humble blogger hopes you head off into a wonderful weekend fully of puppy dogs and rainbows and all that fun stuff.  But if you are one of those cursed wretches that sees the Labor Code on the back of your eyelids and potential workers’ compensation claims everywhere you go – night and day, work or leisure, foreign or domestic, then I have a post to keep you occupied for the next couple of days.

Often times enough, I’ve found myself muttering that I have the most ridiculous claim of injury ever heard of.  I’ve compared some claims to paper cuts, and others to wounded pride.  Certainly, out there, one of my beloved readers is thinking “I’ve got one to top that…” Well, you don’t.  Your humble blogger has conducted extensive research and has found THE most ridiculous case ever.  This claim lends credibility to the worst of the worst:

The matter is, of course, that of John T. Manchester v. Miller Manufacturing Company (1940) 6 CCC 26.  Mr. Manchester, a mechanic’s helper, was operating a hay grinder when a rod on the grinder broke, striking his glasses and breaking one of the lenses.  That’s it.

The applicant alleged that he sustained injury to his eyeglasses.

The referee held that damage to eyeglasses… you know… inanimate objects that are not part of the human body, were not compensable.  The referee further held that Mr. Manchester is going to have to pay for his own replacement glasses, and not come after the employer for them.

Just imagine that, dear readers – a world where workers file claims for cumulative trauma sustained to their boots, specific injuries sustained to their pants as stains, and amputation claims when a button gets lost during the work day.  We might even have claims filed by domesticated animals.

Fortunately, we’re limited to ridiculous claims to actual human body parts which only manifest subjective symptoms and can be easily cured with large sums of money applied directly to the wallet.

Have a good weekend, folks!

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WCAB Panel Articulates Limits on Good Faith Personnel Action Defense

August 8th, 2016 No comments

Hello dear readers!

There’s a case making a bit of buzz around our little bee-hive of workers’ compensation, and the sweet, sweet honey is that good faith personnel actions aren’t the might bears we thought they were… I’m out of bee analogies, folk – leave yours in the comments.

Anyways, the case going around is Ferrell v. County of Riverside where the WCAB panel held that good faith personnel actions, as contemplated by Labor Code section 3208.3(h), aren’t just any personnel activities, but are more related to specific interactions between management and employees.

In Ferrell, the employer needed to consolidate its workforce and so applicant, along with her entire department, was transferred to a different department, where they became probationary employees, despite a tenure of more than five years.  She had a new director which she apparently didn’t like, and had to share a car instead of having one assigned to her individually.  Other equipment was pooled and restricted as well.

She claimed this caused her stress and she sought treatment, but was eventually laid off and settled her workers’ compensation case.  The Ferrell opinion that we’ve got to work with is because a lien claimant sought reimbursement for the treatment provided to Ms. Ferrell.

Defendant raised the good faith personnel action and lost at trial, then promptly sought reconsideration.   The WCJ’s reasoning that the budgetary needs of the employer that lead to stressful work conditions were not “personnel actions” as contemplated by Labor Code section 3208.3.  The panel opinion agreed that “[t]he distinction between the effect of working conditions, and the effect of an action directed towards an individual’s employment status” is what made this claim compensable.

Your humble blogger would respectfully direct his enlightened readers to the Court of Appeal opinion in Michael Brooks v. County of SacramentoTherein, the psyche AME found that an internal affairs investigation made up 1/3rd of the cause of applicant’s psyche claim, and another 1/3rd was from Mr. Brooks’ feelings about his lack of support from his supervisors during the investigation.  The Court of Appeal ruled that Mr. Brooks’ “feelings were his injury, or symptoms of the injury, not the cause of the injury.”

In this case, certainly some portion of the psyche claim was related to the actual working conditions which can be stressful.  After all, stressful jobs cause stress, and stress can be a compensable injury.  But some of the other factors involved here, as per the WCJ’s report, appear to be reactions to good faith personnel actions.  For example, the transfer of employees (rather than simply laying them off) is a good faith personnel action.  As is having to place employees recently transferred on probationary status.  As is any reaction to the management decisions of her new director.

The Brooks opinion tells us that a subjective reaction to a good faith personnel action is part of that action.  How much of any psyche claim is going to be subjective reactions to good faith personnel decisions, and how much will be caused by general stressful conditions?

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Bionic Arms Now Available – Should Total Perm. Disability Still Apply?

August 5th, 2016 No comments

Happy Friday, dear readers!

Your humble blogger admits that, when I was but a child, just knee-high to a grasshopper, I thought a prosthetic arm or hand was basically what Captain Hook had from the Robin Williams Peter Pan film, “Hook.”  As an aside, if you haven’t seen the movie, you really should – Robin Williams does not disappoint.

What was it? A choice for amputees of either utility (a hook) or aesthetics (a non-functioning prosthesis made took like a hand).

Recently, your humble blogger saw an article about a Mr. Nigel Ackland, who lost his right arm below the forearm in an industrial blender accident and was left without work.  Enter “be-bionic,” which provided Mr. Ackland with a bionic arm, attached at his elbow.

Now, Mr. Ackland uses the bionic hand for “everyday tasks [like] two-handed like driving, typing, shopping and washing his hands.”

Looking at the AMA guides, Figure 16-2, an amputation just below the elbow is worth 57% WPI.  Applying the 1.4 modifier for an injury today, without accounting for age or occupation, you’re looking at 80% PD, which is already a life pension plus the base of $172,042.50.  That’s the PD alone.

And, of course, amputation of both hands is total permanent disability – life pension.

If such a bionic arm and hand set is available, do these numbers still apply?

Think about it – just this one bionic hand brings an injured worker to almost pre-injury functioning.  Surely there’s some PD, and future medical and TD (of course), but are we still in the same category for permanent disability when an injured worker can return to work with such a tool?

The same applies for double amputation – Labor Code section 4662(a)(2) provides for total permanent disability for the “loss of both hands or the use thereof.”  Do we need to start revising this language, especially as it appears that one can “lose” both hands but retain “the use thereof” through bionic ones?

Your humble blogger submits to you that we must come to realize that much of the language and thinking surrounding workers’ compensation is rooted in somewhat obsolete thinking about the nature of industry and the practice of medicine.  Should an army field medic equipped with today’s techniques and tools be guided at all by a Civil War era surgeon, who primarily focuses on amputations? The phrase “chop-chop” now means to hurry, but during the days of what some refer to as the “Northern War of Aggression,” it was basic medical doctrine.

Have a good weekend!

robot arm thumbs up

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Legislature Eliminating Chiropractic Cap?

August 3rd, 2016 No comments

Happy Wednesday, dear readers!

Your humble blogger made the grave mistake of looking at recently proposed workers compensation legislation, and, as we all know, what once is seen cannot be unseen.

State Senator Tony Mendoza has introduced Senate Bill 1160, which will, among other things, lift the cap on 24 chiropractic, occupational therapy, and physical therapy visits as provided in current Labor Code section 4604.5 for physical medicine and rehabilitation services.

Seriously guys… what the heck? As the kids say these days…

Why you do this meme

Chiropractic care was limited as part of SB-899 to 24 visits, unless the defendant authorizes more visits in writing.  Why?  Because chiropractors tended to award more PD and more TD based on subjective complaints, and they tended to run up the bill on “treatment,” often with no medical gains for the injured worker but a big bill for the defendant (and all the applicant’s co-workers kept wondering “why don’t we ever get a raise?”)

This is bad news for California and yet another effort by all the folks that buy their vacation homes from the suffering of injured workers to roll back the gains made in workers’ compensation reforms.  Hopefully, the more influential players in California will catch on to the negative effects of this bill and promptly move to stomp it out.

Then again, perhaps the bill is not meant to pass, but just another DOA piece of legislation to show the voters where everyone stands.

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Paid Administrative Leave Doesn’t Count Towards TD 104 Week Cap

August 1st, 2016 No comments

Hello, dear readers!

Your humble blogger is back from his short (but well-earned) hiatus and brings you a report on a case recently denied review by the Court of Appeal: Ortega v. City of Guadalupe.  Therein, a police officer sustained an admitted injury to the back and psyche.  He was placed on paid administrative leave for about 41 weeks, and then was placed on temporary total disability after his employment ended.

So… what’s the problem?  Defendant took credit for the 41 weeks of paid administrative leave against the 104 week cap of Labor Code section 4656.  Naturally, applicant and his attorney had a problem with this, as… well… MONEY!

The parties proceeded to trial on this sole issue – can paid administrative leave paid by the employer be credited as temporary disability benefits?

Well, the WCJ and the WCAB gave a pretty fairly resolute “No.”

As the WCJ and the WCAB reasoned, paid administrative leave is, technically, “working.”  As applicant was earning wages, even as leave being a form of “modified” duty, where the modification is to do no work, these were wages and not wage loss.

In one sense, this is perfectly reasonable: applicant was hired with certain rights and responsibilities and benefits.  Among them paid administrative leave was included as part of the terms of employment, and the available money for wages was likely reduced to account for this other benefit (in lieu of, for example, unpaid administrative leave).

But, on the other hand, the guy is not actually working.  There’s no benefit being conveyed to the employer through this applicant’s labors while he is on administrative leave, and there are further losses to the employer – someone has to pick up applicant’s shifts and duties while he is on leave.

How does it apply to those employers in the private sector?  Well, there are going to be times when employees are entitled to various benefits that include them not doing any work but earning wages.  Some employers offer paid sabbaticals.  Certainly, it is conceivable that as part of a contract for employment, employees will demand a provision for paid administrative leave during administrative review of any lay-off or termination appeal.  Employees sometimes even use paid vacation to avoid taking a hit on their earnings while unable to work or while the injury is still in dispute.

Although wage continuation benefits under Labor Code section 4850 go towards the 104 week cap, at least according to the Court of Appeal in Knittel, wages that come directly from the employer (even the self-insured employer) rather than as a workers’ compensation benefit, might not be credited against temporary disability limits.

Perhaps this is something that can be remedied with legislation – the injured worker isn’t “working” unless there is actual benefit to the employer being conveyed.  Until there is such legislation in place, employers and insurers should be wary of claiming TD credit for non-TD benefits.

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