WCDefenseCA

Alright dear readers, here’s a question for you – applicant sustains two injuries and they become P&S on the same day.  The injuries are resolved by stipulated award and applicant is not offered a return to work by the employer.  Does the applicant get one voucher or two?

Well, your humble blogger’s answer is, of course:

But, clearly, the law does not agree with your humble blogger’s musings.  Instead, the recent panel decision in the case of Sesena v. Residence Inn by Marriott, held that applicant is entitled to a voucher for each of her injuries – one for the CT to her cervical spine, lumbar spine, thoracic spine, and another in the form of hypertension.

The WCAB reversed the WCJ, finding that applicant was indeed entitled to TWO vouchers rather than one, interpreting Labor Code section 4658.7’s language of “[i]f the injury causes permanent disability” to mean that each permanent-disability-causing injury triggers a separate right to a voucher.

Practically speaking, most vouchers are used, if at all, to get the extra $5,000 from the state fund paid for by employers and insurers, a free laptop, and $500 in cash from the employer.  But, on those rare cases that the full amount is used, the defendant might be out $6,000 per voucher.

What defenses can be made against this argument?  Well, is as voucher due whenever there is permanent disability?  No, of course not – no voucher is due if there is an offer or regular, modified, or alternative work timely made.  (Section 4658.7(b).)

Well, why wouldn’t an employer make an offer of regular, modified, or alternative work?  Most likely because the work restrictions could not be accommodated.  After all, termination for cause or right to work in the United States is no reason not to make the offer.

Well, what happens if the restrictions for one of the injuries includes and/or incorporates the restrictions for the other one?  Why would an employee be entitled to two vouchers for the same work restrictions?

In the case of Mercier v WCAB, a California Supreme Court opinion from 1976, the Court held that “[w]hen all factors of disability attributable to the first injury are included in the factors attributable to the second, there is total overlap.”  Although Mercier had to do with rating permanent disability rather than dealing with vouchers, the idea remains the same: if the preclusions from one injury are included in the preclusions from the other, then there is overlap.  Mercier did not receive permanent disability twice for the same work preclusions, and an applicant should not receive a second voucher for the same work restrictions.

Now, bear in mind, my dear readers, that the panel opinion does not go into great detail as to the work restrictions in the Sesena matter.  However, every effort should be made to avoid liability for a voucher if possible, and the best way to do that is to make an offer of regular, modified, or alternative work.

Your humble blogger hasn’t had occasion to use the Mercier argument at trial yet, but if you try it please let me know how it goes.

Forklifts.  Normally, your humble blogger uses the word to pretend he’s doing exercises when he’s really just eating dinner.  But, outside of the world of puns and overindulgence, forklifts (and their less useful cousins, pallet jacks) are incredibly useful but also incredibly dangerous devices for warehouses and their employees.

If you run a search on Lexis or WorkCompCentral, forklift injuries are plenty and varied.  There are cumulative traumas from extended periods climbing in and out of them.  There are trip-and-fall injuries.  There are cases where the forklift fails its human worker and tips or drops something heavy on a co-worker.

One of the remedies to this problem is making tech news – the Seegrid GP8k is an autonomous forklift that can “approach a pallet, lift it, transport it safely, and put it where it needs to go.”

But avoiding the cost of industrial injury isn’t the only benefit – this particular instance of automation comes with fewer wages paid, fewer pieces of merchandise damages, more efficiency in the warehouse.

Your humble blogger submits to his beloved readers that California’s policies, including but not limited to workers’ compensation benefits, continues to make automation attractive.

Now, your humble blogger will occasionally take abuse form the more fiery members of the applicants’ bar and their cheerleaders because of this position.  Do I want injured workers to suffer? To starve?  To do dangerous jobs and bear the risks themselves?

California often deludes itself into thinking that it is playing the role of Robin Hood – lightening the load of those fat-cat employers and insurers and giving the working man a reasonable living.  The reality is that California steadily robs future workers of their jobs.

Certainly, accidents can happen to even the most careful and diligent employees, but workers’ compensation benefits are also provided to workers who are careless, reckless, inebriated, or deliberately trying to play the “blue collar lotto” to get benefits.  Before you start with the defenses of Labor Code section 3600, remember who bears the burden of proof.  Most defense attorneys can tell you about that one case he or she had where the injured worker was high, drunk, or suicidal and the WCAB awarded benefits anyways.

With one rare exception, robots and machines tend not to be suicidal.

Anywho, dear readers, it looks like automation of the workforce continues apace, so the ills of the workers’ compensation system, though frustrating and unfair, might be relatively short-lived.  Are you ready?

Alrighty, dear readers, your humble blogger has a pop quiz for you.

Why do we have live testimony?  Why can’t all witnesses call/Skype/Facetime in to trial or a hearing?

Most of the WCABs venues have some form of wi-fi available, and almost everyone is sporting a smart phone nowadays.

We already saw in the Simmons case that an adjuster was allowed to appear via Skype and in the Alvarez case, an applicant was allowed to testify via Skype at his own trial after being deported to Mexico.

Recently, the WCAB allowed a deported illegal alien applicant to testify at his own trial via a 4-inch iPhone screen.

In the case of Vargas v. Becker Construction, a recent panel decision, the WCAB did not disturb the WCJ’s allowing of a deported applicant to testify by iPhone.  Your humble blogger is agreeable to the fact that we should avoid “gotchya” litigation in workers’ compensation matters.  However, if credibility is in question, a WCJ needs to be able to observe applicant testify.  Additionally, the WCJ should be able to have certainty that no one in the room is feeding answers or responses to the witness from behind the iPhone transmitting the testimony.

Practically speaking, this might be addressed by having the injured worker sit in front of floor-to-ceiling mirrors so that the trier of fact can confirm no one else is in the room.  But the small screen of the iPhone presents its own problem – how is one to observe credibility on so small a screen, especially if the rest of the hearing room is to observe it as well?

Personally, if the world finally lost its mind and entrusted your humble blogger with a spot on the bench, I would think a phone is too small a device upon which to observe a witness’s testimony (and determine credibility).

It is not clear what the proper course of action is – do the federal and state constitutions’ guarantees of due process (including the ability to present and cross-examine witnesses) outweigh California’s interest in providing benefits to workers that for one reason or another are not present in the country (or state)?

What do you think, dear readers?  Would defendants be willing to have their adjusters and employer witnesses avoid being dragged in from out-of-state if it meant that an applicant could prosecute his or her case from across the border?  As much as your humble blogger is a fan of technology, somehow testimony over a hand-held iPhone screen doesn’t seem to meet the standard of decorum and substance of an in-person trial.

And a happy Monday to you, dear readers!

Are you going to watch the eclipse today?  Remember to wear your glasses…

Reform after reform; legislative session after legislative session; trial after trial – the workers’ compensation community has the same issue come up over and over again: employee vs. independent contractor.  And, to date, the controlling case on this matter is Borello, in which the California Supreme Court set out several factors to consider in determining whether the injured worker was an employee or an independent contractor.

Recently, the Court of Appeal denied review of the WCAB’s confirmation that a deceased truck driver was an employee, rather than an independent contractor, in the claim for death benefits brought by his widow.

The case is that of Schnore v. Progress Rail Services.  Therein, applicant’s late husband suffered a fatal cardiac arrhythmia while driving defendant’s truck.  Defendant claimed that the deceased was an independent contractor rather than an employee, so no liability was to be had.

By contrast, applicant claimed her husband was an employee and was entitled to workers’ compensation benefits.  At trial, the WCJ found the deceased to have been an employee, noting in particular that because defendant set the points at which the drivers pick up and drop off the freight, there is sufficient control to suggest employment.  The WCJ also weighed the fact that the trailer pulled by the truck driven by the deceased was specialized for the cargo (wheels) which suggested specialization of instrumentalities favoring employment.

The WCAB and the COA both declined to disturb the WCJ’s ruling.

Just a thought about this – it seems to be getting harder and harder to prove independent contractor status.  The longer the relationship, the greater the extent of interaction between the parties, the more likely the WCAB will be to find the relationship one of employment rather than independent contractor status.

For that reason, parties should be prepared for the possibility that the independent contractor defense will fail.  Although this may be a valid reason to deny the claim initially, a thorough investigation should be made and every effort should be extended to defend and mitigate the claim itself.

In this case, it appears the medical-legal process found industrial causation for the worker’s death.  Accordingly, the independent contractor defense is a bit of a longshot in California.

On the bright side, there’s always the possibility of settlement…