Archive for May, 2017

 Exo-Skeletons and The Shrinking of the Comp World!

May 19th, 2017 No comments


Alright, dear readers, we made it.  Friday is finally here and your humble blogger brings you an interesting bit of development in the world of the working man (and woman).

Apparently our good friends at Lowes are testing out exoskeletons for their employees to help with lifting.  These suits are reportedly very comfortable and, as described by one user, “it feels like this heavy thing is much less heavy.”

The basic idea is that when the worker bends down, the exoskeleton contracts under the tension, and the force applied when he or she starts straightening up (with the heavy object in hand) makes lifting that much easier.

Presumably, if Lowes applies this to its various stores and warehouses, it might see a decrease in back strains.

Likewise, your humble blogger stumbled upon this YouTube video of Lockheed Martin’s employees using exoskeletons to “make 30-pound items weightless.”

The video is pretty cool and worth the two minutes to watch but if you’re too busy for that, the basic gist is that the suit makes standing and holding a 36-pound tool easy.  The employee using it described needing to take far fewer breaks and having the work itself considerably easier to do.

The basic idea is that if you one were to run the numbers on how much your average back sprain costs from the DWC-1 to the Order Approving Compromise and Release, at least some employers are finding the exoskeleton to be a worthwhile investment.

Furthermore, thinking outside of the workers’ comp box for a little while (I know it’s hard, dear readers, but try just this one time for your humble blogger’s sake) pre-injury, presumably, the employer likes the employee and would rather not lose him or her, right?  After all, if the employee isn’t worth the wages, why not fire and replace?

Well, perhaps safety tools like these are an affordable middle step between paying for workers’ comp injuries and automating the work-force with robots.

Alright, so back inside the workers’ comp box: what will be the impact of using such tools?  I imagine that a lot of the medical evaluators and PTPs are going to have to become acquainted with the effect of such tools such as patient lifts in hospitals and exoskeletons in the industrial sphere to be able to adequately comment on causation.

If your typical QME is used to saying that life in general is a cumulative trauma, so everyone has a CT, he or she will have to explain why there is a CT to the back when the exoskeleton does all the lifting.  Without an understanding of how the technology works, and how little strain there actually is on the person, will such reports be open to attacks of not constituting substantial evidence?

If you do have an employee claiming a CT despite using such assistive devices, shouldn’t the QME have to review a report from an ergonomics expert about how these machines work and how much weight is absorbed by the machine itself?

Call me Chicken Little all you like, dear readers (go ahead, your humble blogger has been called far worse!) but I certainly see our little swamp of Workers’ Compensation being drained a bit and our world shrinking, as technology allows employers to apply money previously earmarked for what some call the “blue collar lotto” to keep their employees healthy and productive.

Have a good weekend!

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LC 4615 – Check DIR Website For Stayed Liens!

May 17th, 2017 No comments

Happy Wednesday, dear reader!

Do you have a moment to read about Labor Code section 4615?  Well, as I’m sure you’ve heard of Occam’s Razor, perhaps section 4615 will be WorkComp’s hammer.

Basically, 4615 holds that if there’s a lien by a physician or provider of medical treatment, both collection and litigation of that lien will be stayed if criminal charges for fraud have been filed against the lien claimant.

So, in the past, when your humble blogger was assigned a lien to deal with, he would visit the rhyming online to see what rhymes with the lien claimant’s name, thereby enabling me to make cruel school-yard jokes at the lien conference to wear down my opponent’s resolve.

Now, a much more effective, if less satisfying, tool is available: the Department of Industrial Relations, as per Labor Code section 4615, keeps a running list of any medical providers charged with fraud in California.

So, if you’ve got a lien or even a bill, check the list before making payment.

Now here’s a thought – can section 4615 be read in such a way that prevents the filing of a lien by a medical provider charged with fraud?  It would be great if it could, because preventing the lien from being filed within 18 months of the last date of service gives rise to the statute of limitations defense of Labor Code section 4903.5.  Unfortunately, the plain reading of the law addresses “[a]ny lien filed…” suggesting that it only kicks in once a lien has already been filed.

That being said – this is workers’ compensation, and reading the law in a way to prohibit the filing of a lien by a provider charged with fraud would not be the craziest way of interpreting the law that any of us have seen.

Anywho, dear readers, your humble blogger hopes you use the 4615 hammer effectively – Smashy Smashy!

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COA Rules on Rescission of Coverage

May 15th, 2017 No comments

Happy Monday, dear readers!

A while back, your humble blogger reported on the Berrios v. EJ Distribution Corporation.  In that case, the employer had obtained insurance coverage with the understanding that its employee truck drivers do not operate outside of California.  Of course, applicant sustained injury while operating outside of California, and the insurance company sought to rescind coverage and avoid liability for the claim.

The arbitrator found that the insurance company could NOT retroactively rescind coverage, but could only cancel coverage going forward and sue for damages.  The WCAB affirmed, so the matter went before the Court of Appeal.

Well, the Court of Appeal issued its unpublished ruling recently, and, due to the Herculean efforts of counsel for the insurance company, obtained a remand.

The question in this case is and always was – what happens when an insurance company alleges that a policy was obtained by false statements by the employer, and an injury occurs under said policy?  The insurance company, of course, wants to rescind the policy, refund the premiums, and be no its way.  The employer, fearful of being left in the cold, wants to let the insurance company pay for everything and then spin its wheels coming after the employer.

The Court of Appeal’s opinion cited Insurance Code 650 and Civil Code section 1692 for the proposition that the policy could be rescinded.

However, the Court of Appeal also held that the insurance company missed a vital step in the rescission process.  While the first step appeared to be completed correctly, that is, notifying the insured of the rescission and returning or offering to return the premiums, there is a second step:

“[t]he thought that performing the acts set forth in Civil Code section 1961 effectively discharged [the insurer’s] obligations under the contract is incorrect.  A judgment finding that [the insurer]’s rescission was effective following an action filed to enforce the rescission under Civil Code section 1692, on the other hand, would be the discharge that [the insurer] seeks.”

Ultimately, the Court of Appeal remanded this matter back to the trial level to consider rescission under these two code sections.  While the original arbitrator ruled, and the WCAB affirmed, that the insurance company could not rescind its policy, the Court of Appeal disagreed and appears to rule that for the rescission to be complete, the insurance company has to take the issue to trial on the issue of whether the rescission was for a valid reason. (See California Civil Code section 1689).

So, now, the matter should be submitted to arbitration to determine, as a matter of fact, if the misrepresentations made in this case were material “determined not by the event, but solely by the probable and reasonable influence of the facts upon the party to whom the communication is due, in forming his estimate of the disadvantages of the proposed contract or in making his inquiries.”  (Section 334, as cited by the Court).

In summarizing the facts, the Court of Appeal’s opinion makes reference to the insurer’s investigator discovering that prior to obtaining coverage, the employer was operating outside of California.

But let’s take a hypothetical case – what if the employer did NOT operate outside of California at the time of obtaining coverage, but started to do so due to a new business opportunity, but did not advise the insured?  If the statements were true when they were made, and subsequent events made these statements “stale”, would rescission be as easy to effect defend?

These issues come up often enough – the employer might say the number on the floor is a six, the insurer might see it as a nine, but when an employee trips on the number and files a claim, the last thing the employer wants is to discover it’s given an interest free loan in premiums to its insurer, and then have to address a claim.

six and nine croped

This is an interesting case and I’m hoping to find out how it ends as the reasoning will be relied upon for subsequent matters, even if it can’t be cited.

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IW Failed To Carry Burden on TD Even After Second Bite at the Apple

Happy Monday, dear readers!

Your humble blogger brings you a recent panel decision on the subject of temporary disability and the burden of proof.  Applicants will often make the argument that if defendant cannot show wages between the date of injury and the P&S date, then applicant is entitled to temporary disability benefits.  However, this isn’t always the case.

In the matter of Singh v. N. Kern State Prison, applicant asserted she was entitled to temporary disability benefits from the date of injury to her P&S date.  However, defendant contended that there was insufficient evidence to support a finding of disability, despite there being no wages, relying on Labor Code section 5705 (“[t]he burden of proof rests upon the party or lien claimant holding the affirmative of the issue…”)

Over the five reports issued by the AME in this case, there is no definitive discussion of temporary disability, nor the periods when applicant would have been temporarily disabled.  In fact, when the matter was submitted for trial the first time, the WCJ ordered the parties to develop the record and specifically inquire from the AME “what, if any, period of medical temporary disability, total or partial, resulted from the injury.”

Despite having the opportunity to depose the AME, applicant failed to establish the periods and extent of her temporary disability, leading the WCJ to conclude, and the WCAB to concur, that applicant did not carry her burden of proving entitlement to temporary disability benefits.

Now, in this case, there didn’t appear to be any evidence to offer as to temporary disability, and so the WCAB concluded that applicant failed to carry her burden.  How much is enough to carry it though?  What happens when the primary treating physician sends you a work slip that says “TTD until next visit four weeks from today” or something like that?

We’re not talking about a hospitalized injured worker, but someone who, presumably, was able to get to and from the appointment and can probably function fairly independently, but possibly could not perform regular duties.  Is a slip from the treating physician that concludes the injured worker is “TTD” enough?

It seems that, at least in theory, such a report, without more, might not constitute substantial evidence and would be insufficient to carry the applicant’s burden of proof.  However, one could also imagine the applicant, at an expedited hearing, weepily telling the WCJ about the pain and the inability to do ANYTHING, which is why the treating physician opined that the disability was total.

What do you think, dear readers?  How light is this “burden” that falls on applicants?

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