Archive for March, 2017

COA Upholds IMR Again!

March 31st, 2017 No comments

Happy Friday, dear readers!

Your humble blogger is always happy to bring you good news, especially on a Friday.

Due to the hard work and diligence of the appellate counsel for State Compensation Insurance Fund, the Court of Appeal for the third appellate district has issued a ruling confirming what we all knew, what applicant attorneys dreaded, and what the other Courts of Appeal have already found: IMR is constitutional!

In the case of Ramirez v. WCAB, applicant/appellant “challenges the constitutionality of the independent medical review process.  He claims it violates the state Constitution’s separation of powers clause, and state and federal principles of procedural due process.”  In response the Court of Appeal, in a published decision, concluded “the Legislature’s plenary power over the workers’ compensation system precludes any separation of powers violation, and the process afforded workers under the system afford sufficient opportunity to present evidence and be heard.”

Don’t look so surprised, dear readers – this is just part of a trend, and as we all know, a trend is your friend!

Stevens held that IMR is constitutional, even when late, and Margaris seemed to confirm this as well.

I won’t go into the specific reasoning by the Court of Appeal because the ruling is published and controlling – IMR will continue to be the sole arena for determining appropriateness of medical treatment for timely denied or modified UR, and this determination will be taken out of the hands of QMEs, AMEs, lawyers, and judges.

For better or for worse, IMR will continue to be an instrument to reduce employer liability for medical treatment and for litigation costs associated with the issue.  Furthermore, because IMR can be late, there appears to be little incentive to expand the capacity or volume of IMR, because it is of benefit to the employers to delay an IMR determination as much as possible: after all, wouldn’t you rather pay for something later than earlier?

Well, here’s the downside – if the medical treatment is necessary to bring the injured worker to a P&S state, then the employer might be stuck paying TTD until IMR issues a decision.  Fortunately, there’s an easy solution to this, which involves taking a glance and the proposed treatment and authorizing it if it is likely to bring about a P&S status.  After all, if you’re going to authorize the treatment anyway, who is harmed when you fail to do the UR (except the bank account of the UR vendor)?

But, when it comes time to negotiate a C&R, the prospect of having superfluous and unnecessary treatment being reduced by IMR should make the demands more reasonable, which is good for the defense.

So, good news, dear readers – enjoy your weekend!

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AB 553 To Deplete Voucher Fund Every Year

March 29th, 2017 No comments

Once in a while, your humble blogger receives tips from his beloved readers – new cases, new stories, new theories.  It is, of course, greatly appreciated (that’s a hint, folks- your humble blogger needs to be fed!)

But, once in a while, someone will e-mail asking advise, and if we only care to read between the lines, the question is always the same: “Greg, why can’t we have nice things?”

Well, there are lots of answers, but allow me to make you aware of Assembly Bill 553 introduced by Assemblyman Tom Daly.  To answer your question, THIS IS WHY WE CAN’T HAVE NICE THINGS!

The reason why workers are often pushing so hard for the voucher is because it gives them an extra $6.5k on top of most settlements.  There’s up to $1,000 for a laptop, $500 in miscellaneous expenses, and, of course, access to up to $5,000 from the general injured worker fund.  Don’t worry about them actually using the remaining $3.5k that defendants pay directly – the actual use of a voucher for re-education is akin to a Unicorn, an Yeti, or an applicants’ attorney that charges a reasonable rate for 5710 fees.

Now, don’t let anyone sell you on that nonsense that this extra $5,000 comes from the State of California – it doesn’t.  The State of California doesn’t have anything – it doesn’t own business or farms or factories.  It is a myth, a figment of our imagination.  The fund comes from money taken by the State of California from California’s employers and insurers.  It is spoil, the loot, the pillage of the part of California that is productive.

And what does Assemblyman Daly propose?  He wants the $120 million fund that is taken from employers to be emptied every year, whether there are 24,000 eligible vouchers submitted or not.  That way, there is a guaranteed assessment of the full $120,000,000 per year, instead of just a replenishment of the depleted portion of the fund.

Obviously, your humble blogger is disappointed.  I would welcome legislative efforts to reduce the administrative and financial burden placed on employers; I would welcome efforts to bring the hammer of justice down as hard of fraud-committing injured workers as illegally uninsured employers; I would welcome efforts to allow more freedom for employers and employees to make mutually beneficial agreements rather than be forced into one peg or another pre-set by Sacramento.

I would especially welcome something to protect Judges from ethics complaints for approving settlements without vouchers when the record does not support entitlement to a voucher, which is the real problem with vouchers and their inhibition of settlements.

Instead, we get an effort to break the piggy bank every year, whether it’s warranted or not.

Doesn’t California already have a lottery system?  Why do we need a second one just for workers turning their vouchers in?

Now, you can expect some people to complain about this approach: “we live in a socieeeeeeety and we have to look out for the less foooooooortunate.”  The less fortunate among us are those quickly losing employability to automation.  As much as automation is inevitable, Sacramento should be focused on making human labor as competitive as possible to slow down its approach and afford Californians time for retraining.  Instead, Sacramento has decided to steer the Titanic straight towards the iceberg and pat themselves on the back all the way down to the bottom of the ocean.

But, then again, who needs nice things?

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Applicants Get to Hire Their Own Experts; Send Reports to QME for Comment (LC4605)

March 20th, 2017 No comments

Happy Monday, dear readers!

Your humble blogger brings you the unpublished Court of Appeal decision in the matter of Davis v. WCAB and the City of Modesto.

Remember, dear readers, unless you want to get yelled at, you don’t cite unpublished decisions in court!  See California Rules of Court 8.1115.

Anywho, in the Davis case, applicant alleged a cumulative trauma and specific injury as a result of his job duties.  Both claims were submitted to a QME who concluded that the condition in question was not industrially caused.

Applicant then hired his own doctor (NOT a QME) and forwarded that doctor’s reports to the QME for comment.  In ruling on the City of Modesto’s objection, the WCJ found that the reports themselves were not admissible, but the QME could review them and comment upon them.

At the heart of the issue, of course, is California Labor Code section 4605, which went into effect in its current form on January 1, 2013.  That section empowers an employee to provide a consulting physician at his or her own expense, and a QME is made obligated by the same section to review and address the issues raised by the reporting of this consulting physician.

The WCAB did not address this argument, by its own admission in the face of applicant’s petition for a Writ of Review.  So, in due course, the Court of Appeal consented to the WCAB’s own request to remand the matter so that the WCAB could address it.

Looking at this issue, of course, it’s hard to read Labor Code section 4605 in any way that does not result in a favorable outcome for Mr. Davis.  It appears that he did exactly what 4605 calls for: he retained a physician at his own expense, paid the physician to write some reports, and then sent those reports to the QME for comment.

That being said, perhaps this is a perfect example of when the Workers’ Compensation Laws of California are weighed heavily against employers and insurers.

Here, the applicant’s attorney can pony up some cash as a litigation expense, hire an expert, and require the QME to review and comment on these reports.  Hypothetically, once the report is commented upon, they might even be submitted for trial and a WCJ might find that the QME’s reports are not substantial evidence when read in comparison to the retained physician’s report (even though, at least in theory, this 4605 report should not be the sole basis for an award).

Now, flip this over – let’s say applicant beats defendant to the punch and gets a pill happy applicant’s QME who has sees a role model in Dr. Nick Riviera:

What remedy does the defendant have to get a reasonable physician to comment on the case?

Well, for one thing, a 4050 exam is NOT an option if the case is denied, and even if applicant submits to a 4050 exam on an accepted case, California Code of Regulations section 35 severely limits the reports that can be sent to the QME, and a WCJ can keep those 4050 reports out!

So, what’s to be done in the Davis case?  Well, for one thing, sometimes the applicant attorneys just can’t help themselves, and they file a lien or demand reimbursement for the payments made to the 4605 doctor.  If that’s the case, then the report isn’t really at the employee’s “own expense.”  In theory at least, such a claim for reimbursement should negate the admissibility of the 4605 report.

Now, one thing a defendant could do in such a situation is to delay.  And the way to do that is to cite California Code of Regulations section 35(e), using the same authority that delays the provision of a 4050 report to the QME.

As section 35(e) provides that “[i]n no event shall any party forward to the evaluator: … (2) any evaluation or consulting report written by any physician other than a treating physician, the primary treating physician, or secondary physician, or an evaluator through the medical-legal process in Labor Code sections 4060 through 4062, that addresses permanent impairment, permanent disability or apportionment under California workers’ compensation laws, unless that physician’s report has first been ruled admissible by a Workers’ Compensation Administrative Law Judge…”

But if the case is denied, the consulting report is likely only addressing causation, and not PD, work restrictions, or apportionment.  Furthermore, wouldn’t an “attending” physician constitute “a treating physician”?

If the stakes are high enough, it may be prudent for the defense to hire a physician to review the relevant reports and help draft a supplemental to go to the QME.

Paging Dr. Nick…

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Allegations of Minimum Wage Violations Do Not Increase AWW Calculations

March 13th, 2017 No comments

Happy Monday dear readers!

Your humble blogger missed you all very much.  So, does separation really make the heart grow fonder?

Well, I brought you something very special from my travels – a blog post about calculating average weekly wages!   (You were, expecting, perhaps, a t-shirt or a coffee mug?)

Except for those rare workers’ compensation cases where the average weekly wages exceed the statutory maximum (think registered nurses, perhaps?), carries a potential issue over average weekly wage.  That magical little number determines the temporary and permanent disability rates.  Sometimes it can even be used to calculate the relative exposure for a cumulative trauma case where there are multiple employers and/or insurers.

Recently, the WCAB (quite rightly) affirmed a trial judge’s ruling on how to calculate average weekly wage, in the panel decision of Jacobs v. Institute on Aging.

Applicant was working for the defendant for about 10 months when he sustained an admitted injury.  He testified to working about 49 hours per week.

Applicant’s counsel claimed his average weekly wage should have been $625.26, while defendant was arguing for an AWW of $403.95.  After reviewing the wage statement, the WCJ calculated an AWW of $416.69.  Applicant petitioned for reconsideration.

Assuming applicant actually worked 49 hours per week, that comes out to an hourly rate of $8.50, excluding any potential overtime payment, but California’s minimum wage in 2014 was $9.00 per hour.

Applicant argued that the average weekly wage cannot be calculated in such a way as to allow a violation of the minimum wage laws.  Additionally, it looks like applicant’s counsel decided that a violation of Labor Code section 5813 and regulation 10561(b)(9)(B) was in order, for which the WCAB commissioners admonished her.

In any case, the WCJ relied on Labor Code section 4453(c), and calculated wages based on actual earnings.  In rejecting applicant’s contentions, the WCJ pointed out that the workers’ compensation appeals board is not the proper forum for wage and hour disputes.

Now, readers of this blog will understand that these most humble of internet pages have an incredible degree of hostility to a finding of any benefits being owed.   But, that aside, the theory offered by applicant in this case would drag in considerable other issues as well.  If the employee is not being provided wages because of a termination for cause, and the termination is allegedly some form of contract or legal violation, should the WCAB forum be the place to adjudicate that question?

What about immigration issues – if applicant argues that federal immigration law precluding the hiring of an illegal alien is somehow unconstitutional, should a WCJ be tasked with interpreting the United States Constitution, federal immigration law, and the workers’ compensation laws before overruling Congress?

Whatever allegations the injured worker might make as to broken promises of wages or even the violation of minimum wage laws, the workers’ compensation appeals board has enough to do without engaging in adventures through California’s entire body of law to find additional things to do.

Have a good week, dear readers!

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Interpreter Fees: 2 Hours Min. AT the Market Rate? No!!!!!

March 6th, 2017 5 comments

Happy Monday, dear readers!

Last week, your humble blogger managed to have a cup of coffee with one of the bright young minds helping to shape the workers’ compensation world.  She expressed some understandable frustration with interpreter bills.

For those trying to follow along, California Code of Regulations section 9795.3(b) provides that interpreters get paid at a set rate for a minimum of half day or full day for hearings, arbitrations, or deposition (subsection 1) or $11.25 for every quarter hour, for a minimum payment of two hours for “all other events (subsection 2).  In the alternative, interpreters are to be paid the market rate.

My zealous colleague asked a fairly simple question – why do we pay the minimum hours AT the market rate?  Should market rate be for actual time spent, and set rates with minimum times for the rest?

Let’s say an interpreter provided one hour of interpreter services for a medical appointment and is able to establish that the market rate is $50 per hour for interpreters.  Well, either the interpreter is entitled to $50 (the market rate for the time spent) or $45 per hour for a two-hour minimum as per section 9795.3(b)(2), or $90.  The interpreter should NOT be entitled to a minimum of two hours AT the market rate, right?

Clearly, any theory that results in a reduction in liens and fees to be paid by WC defendants is on the right track and deserves our unwavering support.  Given my own experience that workers’ compensation Judges sometimes like to see something other than your humble blogger’s endorsement of an idea, I thought some research might be warranted.

Among the sources found was the case of Guitron v. Santa Fe Extrudes, an en banc case from 2011.  Therein, the WCAB held that “[w]hile $11.25 per quarter hour, or market rate, as proven by lien claimant, appears to be a reasonable standard, we are not prepared to conclude that the two-hour minimum applies to all medical appointments, some of which might take only 10 to 15 minutes.”

In a 2010 panel decision, Mendez v. Santa Barbara Farms, the commissioners actually went the other way, holding that the lien claimant was entitled to the “market rate” of $115 for two hours, but this was based on other defendants rolling over and paying the full fees to establish the “market rate.”

Your humble blogger wasn’t able to find too much more on this argument, but from the looks of it the field is wide open in terms of binding authority for making this sort of argument.

So, anyone willing to give this a try?  Please let your humble blogger know how it goes!

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Is Skype Testimony Sufficient To Determine Credibility?

March 3rd, 2017 No comments

Happy Friday, dear readers!

Your humble blogger brings you an interesting new case today – one that was brought to my most humble attention by the good folks over at Lexis – electronic testimony by the adjuster at deposition.

Often enough, adjusters handling California cases are in other parts of California, or even other parts of the Union.  So, if you’re a sly and sneaky applicant’s attorney, you might consider finding some pretext for a deposition of the adjuster.  After all, a day out of the office, whether spent testifying or traveling to testify, can be brutal – adjusters already have to juggle enormous case files, phone calls, e-mails, and ready long and pointless blog posts from humble bloggers.

But, let’s remember, we no longer write our briefs by scratching and inked feather upon parchment lit by candle light – we copy-paste our pleadings on brightly lit computer screens.  We no longer seal our declarations with a melted wax and our emblems, but with proofs of service signed under penalty of perjury.  And, of course, we no longer have to appear for testimony in person, we have Skype, Viber, and a whole host of other software that allows testimony by video.

What reason is there to require in-person testimony?  We even allow applicants to testify via Skype when they’ve been deported to Mexico!

In the panel case of Simmons v. Just Wingin’ It., Inc., applicant’s counsel sought to have defendant’s adjuster appear in person to testify at trial.  Defendant sought removal, arguing that requiring a claims adjuster who lives in Illinois to appear in person for trial would visit substantial prejudice upon defendant, especially when CourtCall and video conferencing are available.

In reversing the WCJ, the commissioners wrote “[w]e agree with defendant, and see no reason not to use the alternative means of obtaining the claims adjuster’s testimony.”  The WCJ’s order was rescinded and the adjuster was allowed to appear for trial remotely.

From the WCJ’s report and recommendation on removal, it appears the primary concern with having the adjuster appear remotely is the interference with the Judge’s ability to ascertain credibility.  It is not clear, however, if a video appearance would be sufficient for a judge to determine credibility as a witness.

My dear, fellow defense attorneys – would you be content to take a deposition over video conferencing?  Or is there something that makes the difference by doing the deposition in person?

In any case, if this panel opinion becomes the trend, it might take some of the teeth out of the applicant’s demand to depose the adjuster.  Have a good weekend!

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Chores + Free Rent = Employment? Not in MY WC!

March 1st, 2017 No comments

Happy Wednesday, dear readers!

Your humble blogger refers his beloved readers to that mental filing cabinet we all keep.  The one with the funny stories, the many reasons why we despise our bitter enemies, and, of course, our examples of “no good deed goes unpunished.”

Such is the case in the matter of Garcia v. Whitney, a recent matter denied review by the Court of Appeal.

Defendant Whitney allowed applicant Garcia to stay at her home rent-free.  At some point, defendant Witney asked Garcia to help out around the house.  He eventually cut his finger with a power saw and filed a claim.

The thrust of the argument?  Once applicant started helping out around the house, he was performing services for another, as contemplated by Labor Code section 3357, and thus became an employee.

The WCJ was not amused, and summarized applicant’s argument, thus: “anyone doing anything for anybody else is an employee.”  Based on the WCJ’s report and recommendation, which the WCAB commissioners adopted and incorporated in denying applicant’s petition for reconsideration, there was no evidence to support the contention that the defendants ever threatened to stop providing housing rent free if applicant were not to help out around the house.

The WCJ ultimately held, in finding that applicant was to take nothing by way of his claim, that unless there was some evidence to support the agreement to have an actual exchange of “free” rent for services, a finding of employment could not be supported.

Speaking personally, as a humble blogger, the suggestion that a every interaction is one that creates an employment relationship is a bit dizzying.  Am I suddenly an employee by holding the door for a person in a building?  What if that person were to then hold the elevator door for me – are we now employing each other?  How do I fire the elevator-holder for poor performance?

But, again, few maxims endure with so much vitality and unwavering determination as the one we keep in the back of our minds: no good deed goes unpunished.

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