Archive for September, 2016

Lien Dismissed For Failure to Appear; Recon Upholds!

September 30th, 2016 No comments

Hello dear readers!

Usually your humble blogger comes to tell you how horrible life is outside of the cave – up is down, down is up, applicants are getting benefits and workers’ comp bloggers are humble!

But today I actually get to report on a recent panel decision that will remind you that rain is right (recall, please, that rain makes corn, and corn makes whiskey).  In the case of Espinoza v. Sunrise Senior Living, a lien was dismissed after the lien claimant’s representative failed to appear at a lien conference.

The lien claimant had filed a DOR, and then failed to show up.  When the WCJ issued a Notice of Intention to Dismiss, the lien claimant objected, and provided as “good cause” for failing to appear that the lien representative miss-calendared.

The WCJ rejected this as a basis and dismissed the lien and, on reconsideration, the WCAB concurred with the WCJ: “[w]e do not find that the mere assertion of inadvertence as a result of miscalendaring, without further explanation as to the circumstances, sufficiently establishes good cause to set aside the Order Dismissing.”

So, here’s the thing that you get from a bit of practice in the lien game: the same lien claimants treat on a lien basis KNOWING that there is an MPN; KNOWING that the claim is denied; KNOWING that there is a fee schedule.  And they know these things because they are repeat players at the WCAB and have been ruled against time and again.  But they keep doing this because the business model is built around shaking down settlements and, on occasion, catching a defense attorney or adjuster snoozing.

But even if the lien claimant has no case, they will try to use a particular claim to inflict damage on the file: delay file closure, drive up defense costs, scare up settlements.  And they do this knowing that the next time this adjuster and/or defense attorney is dealing with them, the cost of the last lien to resolve drives up the “savings” by settling now.  Missed hearings are a part of the game because the defense attorney still had to prepare and appear; the adjuster had to keep the file open for that much longer.

So, your humble blogger has a few thoughts to bolster your position when your defense attorney gets all dressed up and has nowhere to go:

  1. In your humble bloggers experience, more and more lien claimants are e-filers or jet filers and so when they file for a DOR, they actually PICK THEIR OWN HEARING DATE! That means that there is absolutely NO excuse for not showing up or “miscalendaring” because it’s only the defense attorneys who might have a conflict – why would one schedule a hearing when one is not available?
  2. While some lien claimants have in-house representatives or licensed attorneys seeking a recovery, many lien claimants don’t and use non-attorney hearing representatives. That means that, pursuant to Labor Code section 4903.6(b) lien claimants must notify all parties of their representatives, and California Code of Regulations section 10774.5(e)(4) requires a hearing representative’s NOR to be signed by the lien claimant.  So, if there was no such NOR filed, then the lien claimants wasn’t really represented… and should have been there itself.
  3. If the lien claimant were allowed to revive its lien, shouldn’t the defense be entitled to costs for the fair value of the defense attorney’s time? How about any administrative costs associated with keeping the file open?

Go forth, dear readers, and crush all liens into take nothings! Go fifth… and pay the liens in full…

Categories: Uncategorized Tags:

Crackpot Proposal – Requiring Applicants to Sign Settlement Offer Rejections

September 28th, 2016 No comments

Brace yourselves, dear readers — it’s time for another rant.

The way this whole workers’ comp thing works, when everyone is represented, is that an offer is made to the injured worker’s attorney, who is ethically bound (See State Bar Rule 3-510) to communicate it in full to his or her client promptly, and then the same attorney communicates the response (accept, reject, counter).

On several occasions, the rejection of an offer has left your humble blogger, and his client, puzzled.  So puzzled, in fact, that the defense might wonder if the offer was ever communicated to the client.  Now, your humble blogger knows that the vast majority of attorneys practicing applicant’s workers’ compensation, at least the ones he has met and worked with, abide by their ethical duties.  That being said, there are attorneys out there, both applicant and defense, that may bend the rules a bit.

Sometimes it might be justified (internally) by deciding the client is not in the right state of mind to make significant, long-term decisions, and that the attorney needs to step in and decide things for the best interest of his clients.  But, even then, it is easy for a more cynical person to suspect that while a settlement offer might help the injured worker, it does not help the injured worker’s attorney enough.

To that end, sometimes adjusters might consider asking defense attorneys to write directly to the injured worker or to send a settlement offer and a copy to the injured worker too, just to make sure that the injured worker is actually receiving the settlement demand.  The problem with this is, of course, that the State Bar of California expressly prohibits an attorney from communicating with a represented party.  (See State Bar Rule 2-100).

I strongly urge the defense community to abide by these rules.  For the defense attorneys, the thing at stake is your license and ability to practice law in California.  For the adjuster, if your attorney is willing to violate some ethical rules then you’re playing with fire, which President George Washington described as “a dangerous servant and a fearful master.”

So, what is your humble blogger’s suggestion?  What if we required settlements to be rejected in writing, signed by the injured worker?

Here are a couple of scenarios:

A hearing SHALL be taken off calendar at defendant’s request if defendant shows a settlement offer was made in writing and, prior to filing a Declaration of Readiness to Proceed, applicant did not, in writing, respond to the settlement offer.  Such response shall be signed by the applicant him or herself.

If a settlement offer was made in writing by defendant, a matter may not be set for trial following a Mandatory Settlement Conference, and discovery shall not close at a Mandatory Settlement Conference, unless applicant provided a written response to the settlement offer.  Such response shall be signed by the applicant him or herself.

Obviously, offers to compromise are privileged and these documents would not be admissible for at trial.  (See California Evidence Code section 1152)

The basic idea is, of course, to confirm that the applicant is receiving the actual settlement offers, without pressuring defense attorneys to violate ethical rules.  It also serves to protect applicants’ attorneys – if trial does not go the injured worker’s way, there’s a written record that the applicant received a settlement offer and rejected it, rather than later (falsely) claiming to never have been advised of the offer in the first place.

There are, unfortunately, defense attorneys who advise their clients with the intent of generating billable hours rather than getting the best result for their clients.  There are, unfortunately, applicant attorneys who guide their clients into taking unreasonable risks to generate a higher attorney fee.  These are the vast minority of practitioners, of course, and by no means the norm.

But the damage to the reputation of the bar can be done by uncertainty and doubt alone – perhaps more documentation is the way to get around this scenario.

Ok, my dear readers, the rant is over.  Back to work!

Categories: Uncategorized Tags:

4662 PTD Presumption Defeated under 4662(b)

September 26th, 2016 No comments

Hello, my dear readers! Your humble blogger is back from his temporary incarceration for blogging without a license, and not unlike Prometheus, is ready to steal the fiery wisdom of workers’ compensation from on high to deliver it to the eager minds of the mortal denizens of the workers’ compensation world.

So, speaking of mental injuries, I submit to you a case that originates in the farthest regions of California.  Deep in the wooded hills and among the wild streams, the Eureka Board is the point of origin for the matter of Winningham v. State of California Department of Corrections.  Applicant, a corrections officer, sustained an injury to his “brain, central nervous system, psyche, eye, digestive system, cognitive system, and I the forms of meningitis, headaches, and vertigo.”  The legal theory advanced was that applicant’s pre-existing condition was “lit up” while applicant was in the gym as part of a work fitness program.

Although applicant was pushing for a finding of permanent total disability, the WCJ instead found that the total permanent disability as “in accordance with the fact” (see Labor Code section 4662(b)) and NOT a presumption as applicant argued (see Labor Code section 4662(a)(4) – “an injury to the brain resulting in permanent mental incapacity.”)  The WCJ then applied apportionment which resulted in an award of 84% permanent disability.

In her report, the WCJ noted that applicant “had a non-industrial underlying asymptomatic condition [brain tumor] that was lit up by his industrial activities [weight lifting].”  The WCJ further noted that the AME’s deposition transcript suggested that applicant’s condition could improve, and that some higher cognitive functioning is still available to applicant.

So… what is total mental incapacity?  Well, in adopting and incorporating the WCJ’s decision, the WCAB cited Schroeder v. WCAB, a 2013 writ denied case in which the WCAB’s opinion, undisturbed by the Court of Appeal, was that 4662 had to do with injuries on the level of “severe mental retardation.”   (Your humble blogger would like to point out for his beloved readers that in 2013, the year the Schroeder opinion issued, LC 4662 looked a bit different: back then, theories that relied on “in accordance with the facts” would benefit from the conclusive presumption of total permanent disability.  By contrast, now at least, permanent total disability “in accordance with the facts” is subject to apportionment.)

In this case, in he injured worker competently and credibly testified about his history and experiences before the WCJ.  The AMEs on the case expected that treatment would improve his condition.  Accordingly, he did not qualify for the conclusive presumption of total disability.

The language of the AMEs in this case was pretty strong supporting apportionment, but can you imagine the damage done to the defendant if permanent total disability had been conclusively presumed?  We’re talking applicant’s TTD rate for the rest of his life with COLA increases.  We’re talking a massive commutation to pay applicant’s attorney’s fee.  This is pretty freakin’ huge!

Cases like this make employers seriously reconsider their work fitness programs!

Now, even with an 84% PD finding, we’re still looking at over $200k in PD and that’s before you get to the pension.  By contrast, if you were to assume a $50,000 per year salary, or average weekly wages of $960, the TD rate is $640.  With a 40 year life expectancy, that’s over $1.3 million, and that’s before the COLA increases.

So, what do we take away from this?

4662(a) is NOT your friend.

4662(b) might be.

Your humble blogger? Always your good and trusted companion…

Categories: Uncategorized Tags: