Happy Halloween 2017, dear readers! Want to hear a spooky story? Applicant’s pre-existing condition was slightly aggravated… and it was found compensable… LIFE PENSION…
Anywho, dear readers, just a friendly reminder, in light of tonight’s festivities:
There will be kids out there. Some of them have determined to challenge Darwin to the death by wearing dark clothes and masks that limit their vision and then crossing the street at night. Please be careful while driving!
Bigger kids, the ones that never grow up, will mix alcohol and poor decision-making – look out for them too!
Workers’ Compensation is scary enough already – if you want a movie tonight I suggest you watch Hocus Pocus!
On the night of October 1, 2017, a person who will not be named so as to avoid bringing more notoriety to a mass murderer, opened fire on a crowd of concert goers in Las Vegas, Nevada. It was a mass shooting in which 58 people were killed and over 500 were injured.
Among the crowd of concert goers was a number of off-duty Sheriff’s Deputies from Orange County, California. These deputies quickly sprang into action, assisting with first aid, evacuation of concert goers, and guarding the perimeter as the confusion cleared and the crisis came under control of first-responders.
Without a doubt, the events of October 1, 2017 ranged from fatal for some, traumatic from others, and, of course, shocking the country as it watched.
Part of the issue here is, of course, policy – does the Orange County Sheriff’s Office want its deputies to spring into action as peace officers when they are not in California? Would the same want Nevada’s visiting peace officers to spring into action and assist?
The other question is, of course, one of law. Should a claim for injuries sustained by off-duty deputies outside of the state, let alone the county, be compensable?
Labor Code section 5305 provides for jurisdiction injuries sustained outside of California if the applicant is regularly employed in California. Section 3600.5 provides the same if the injury is “arising out of and in the course of employment outside of” California.
Well, last week, Orange County denied the claims. Citing Labor Code section 3600.2(a), “[w]henever any peace officer … is injured, dies, or is disabled from performing his duties … by reason of engaging in [your typical cop stuff] anywhere in this state … but is not at the time acting under the immediate direction of his employer …” he gets the WC benefits. In other words, off duty cops in California are covered if they act as on-duty cops and sustain injury.
Orange County is taking the position that this statute excludes the same OUTSIDE of California.
As much as your humble blogger hates to admit it, these appear to be legitimate claims, although, of course, the question of nature and extent seems open still. In reading this section, I would interpret 3600.2 to limit its application to clarify that off-duty cops get the same coverage as on-duty cops. After all, injuries sustained outside of California by California employees while working abroad are still compensable.
In case you didn’t have enough about liens being summarily dismissed as discussed here, the WCAB has now issue an en banc opinion summarily ruling that any liens that were dismissed by operation of law because the necessary declarations were not filed will no longer be automatically dismissed.
Issuing one opinion for the all such petitions for reconsideration, titled Jose Guillermina Rodriguez v. Garden Plating Co, the WCAB ruled that those cases for which a Labor Code section 4903.05(c) declaration was filed after 5:00 p.m. on Friday, June 30, 2017 through 5:00 p.m. on Monday, July 3, 2017, will be heard by the appropriate trial judges to be considered if the declarations were filed timely.
The WCAB specifically stated that “we make no determination as to the timeliness of filing of such declarations (after 5 pm on 6/30/17 and before 5:00 p.m. on 7/3/17).
From the looks of it, if you were celebrating the dismissal of any lien it’s time to put the cork back in the champagne bottle and get back to work (for those of you who are NOT defense attorneys or adjusters, make no mistake – there is no celebration when a lien gets dismissed, just a world-weary sigh and methodically moving on to the next case. Did you really think your precious little liens merit sparkling wine?)
I think we can expect to see this issue revisited, as some WCJs will likely rule one way and some another. Let’s keep our eyes peeled for some WCAB guidance on deadline filing.
Well, Assembly Bill 570 (“No percentage of an apportionment in the case of a physical injury occurring on or after January 1, 2018, shall be based on pregnancy, childbirth, or other medical conditions related to pregnancy or childbirth”) would have had effectively the same result, and, fortunately for California, Governor Brown has vetoed this one as well.
In his veto message, Governor Brown wrote “I am vetoing this bill for the same reasons that I vetoed similar measures Assembly Bill 1643 in 2016 and Assembly Bill 305 in 2015.” The message continued “[t]his measure would extend the scope of the workers’ compensation system well beyond what it is meant to do: compensate injured workers who suffer a work related injury.”
It’s the easiest thing in the world to call opponents of measures such as AB 570 “sexist” or bigoted, but don’t let you distract that from the true issue – money. This is purely about redistributing money from employers and insurers to a certain class of workers and, more importantly, a certain class of attorneys.
Everyone involved knows that it is improper to require employers to compensate workers for conditions that not related to a work injury.
I may have my issues with Governor Brown, but he is absolutely right on this – employers should not be liable for everything under the sun, just for the permanent disability caused by work injuries (and medical care, TD, etc., of course).
It’s rare enough that your humble blogger can bring you some good news, but today is one of those days – as lukewarm as it is.
Recently the Court of Appeal denied review in the matter of Foxworthy v. State of California. The basic thrust of the case was that applicant sought to have the combined values chart of the permanent disability rating scheduled tossed out, and for the use of the simple addition method to be adopted instead.
The difference between the two ratings was apparently rather steep – the combined values chart yielded a result of 67% PD while the addition method resulted in 92% PD. We can all imagine a defendant in this scenario weighing the two values and deciding a few dollars in the litigation budget might be worth it.
Initially, the majority of the commissioners noted that Labor Code section 4660(c) mad the 2005 PDRS prima facie evidence of applicant’s permanent disability, including the combined values codes. The majority opinion then recognized that the CVC “should ordinarily be applied unless there is some overriding reason to use a different accounting for multiple impairments.” (query: should “I want more money!” be an overriding reason?)
One of the AMEs opined that the CVC should be used (rather than just adding the impairments up) because the various impairments do not “confounded” by her other impairments (her sexual dysfunction does not affect her lumbar impairment, nor does her psyche claim or respiratory issues, as opposed to, for example, a bad hip.) To quote the good doctor, “I do not find that her psychiatric comorbidity, her hypertension comorbidity[,] or sexual dysfunction comorbidity adversely affects her ability to compensate.”
The majority adopted this line of thinking and ruled that the CVC controls.
The interesting thing is that I’m seeing this more and more in letters to the AME or QME (for those of my readers that are applicant attorneys, please don’t get any ideas. This is a bad practice – shame on you!)
Sometimes the QME/AME will be inclined to give the applicant more PD and will just say “sure, why not?” But here we have some reasoning from two commissioners of how to establish a defense to this approach. One line of inquiry to take to the QME/AME is “how much does applicant’s ability to compensate for these restrictions get impacted by the other impairments?” Based on this split panel opinion, at least, if there’s impairment 1 doesn’t impact applicant’s ability to compensate for impairment 2 in functionality, the CVC should not be rebutted.
Now let’s get into the section of splitting hares.
I mean hairs…
In the Foxworthy case, the spread is huge! 67% vs. 92% is a big difference!
What happens when the QME or AME says that the CVC doesn’t adequately represent applicant’s impairment, but simply adding is overkill? Does the QME have to choose one or the other? If neither is just right, is that sufficient to rebut the CVC?
I can give you the answer, dear readers, but you’re going to have to get me on California’s Supreme Court bench first!
Well, sure enough, the DWC announced earlier in October that the automatic dismissals would be lifted in those cases where the declaration was filed by July 3, 2017, and that those cases previously dismissed would be adjudicated by the WCJs on the file. “Because July 1 fell on a weekend, workers’ compensation administrative law judges will adjudicate the timeliness of lien declarations filed on July 2 and July 3 on a case-by-case basis. DWC’s reversal of the dismissal notation is not a decision or order on the timeliness of the declarations, and shall not be construed as such.”
So, if you’re in that narrow category where the lien claimant did file the declaration on the following Monday, what are you going to do?
Here are some thoughts:
Although a stretch, the language of 4903.05(c)(2) provides that “[l]ien Claimants shall have until July 1, 2017, to file a declaration…” (Emphasis humbly added by your humble blogger).
Well, July 1, 2017 was a Saturday. Can the language be interpreted to mean that “until” means prior to? Can the language be interpreted to mean that the last moment to file would have been 11:59:59 p.m. on Friday, June 30, 2017?
Even if the declaration was filed prior to July 4, 2017, is there a defect in the declaration? Does it list supporting documentation in the lien claimant’s possession which was not filed and served with the lien? After all, “[f]iling a false declaration shall be grounds for dismissal with prejudice after notice” as per subsection (c)(3). Doesn’t California Code of Regulations section 10770(d)(1) require all supporting documentation to be served on the defendant?
Good luck resolving that narrow window of liens, dear readers! Here’s hoping your weekend is spent doing something other than trying to deal with just that…
When your humble blogger was but a young lad, knee-high to a grasshopper, he lived in the Sunset area of San Francisco. There, garbage and recycle was collected by a company called Sunset Scavenger, and the operation was a simple one. A driver would pull up to each house, two garbage collectors stood on the back of the truck, and then would start gathering all the bins to place into the garbage truck.
Well, fast forward many, many years, and as your humble blogger was dropping off his bright-eyed and bushy-tailed children in the morning, we were treated to the sight of a Recology truck. The truck had a single driver and the bins were picked up by a robotic arm on the side, and then poured into the truck and replaced. We watched him hit several houses without having to get out once.
The occupation code for “Garbage Collector, Manual” is 560, which carries an occupational variant of “G”, “H”, or “I” for almost every body part in the PDRS. Although, in fairness, you could probably argue for a lower code if the job involves rolling the bin to an automated loader, rather than pouring the contents of the bin oneself.
But, in a relatively short span of time, investing in a more mechanized garbage truck helps Recology not only eliminate two jobs, but also the two jobs most likely to have the serious injuries of (1) back and leg strain; and (2) chemical exposure from the trash/needles/etc.
And, make no mistake – that one garbage truck driver’s job isn’t that safe either…
As far as your humble blogger knows, Recology is permissibly self-insured, so one might think that the logic here is limited to those situations – there’s one pocket shared by the employer and the workers’ comp account, so of course self-insured employers would benefit from such investment and upgrades.
But that’s not the case – whether you are California’s largest self-insurer or a mom-and-pop shop with a single part-time employee, avoiding injuries will avoid the costs of complying with California’s mandatory workers’ compensation insurance requirements.
Every employer would benefit from such thinking and exploring ways to minimize the manual activity of the employees.
Now, before you get all South Park on me and complain that the evil robots are taking our jobs, just a few thoughts to consider.
The jobs eliminated by automation are not an act of theft – you’re not entitled to a job. But, they free up labor to do other things. Also, the quality of life for everyone, including the poor waste management employees who had to find other work, is improved – they now get yet another service (waste collection and processing) cheaper than they had it before.
Frankly, the only job I’m truly concerned about is mine as a defense attorney – if no one gets hurt, whose claims will I help deny? At least there is always the lucrative field of blogging…
Your humble blogger is back and more hungry than ever for the fair and proper results that seem to escape our files.
I bring you the case of Payne v. Federal Express, a relatively recent panel decision.
Applicant had entered into a C&R agreement with defendant, presumably with open future medical care, back in 2003. One of the provisions of this C&R was that the parties’ AME would resolve all medical necessity disputes.
As is to be expected, a dispute arose about a particular recommended course of treatment. Defendant submitted it to UR and then applicant requested IMR, both of which denied the reasonableness of the RFA (this was a weight loss program). After running up defendant’s bills with the UR/IMR process, applicant then went to the AME to weigh in on the reasonableness of the treatment. The AME concurred that the weight loss program was reasonable and necessary.
When applicant sought to set this matter for trial, defendant objected on the basis that the WCAB had no jurisdiction to resolve this issue as it was a dispute over medical care.
The WCJ concurred with defendant – because applicant had appealed the UR determination to IMR, she was now bound by IMR. The WCAB reversed. Citing Bertrand, the WCAB concluded that subsequent changes in law do not relieve parties of their respective contractual obligations. The matter was remanded down to the trial level.
Unfortunately, what the opinion is lacking, much like the opinion in Bertrand, is a discussion of why Labor Code section 4062.2(f) does not control in this situation. Specifically, the Labor Code holds that “[t]he parties may agree to an [AME] at any time, except as to issues subject to the independent medical review process …”
To your humble blogger, who is not a commissioner or a Court of Appeals Judge, but just a humble blogger, this subsection is a crystal-clear demonstration of legislative intent – only UR/IMR is to address issues of medical necessity.
Let’s take this reasoning to its natural conclusion – if the AME had retired and declined to respond to requests for comment, what would the parties have done? Are the parties now obligated to find some other AME, or are they bound to the UR/IMR process? Would the law invalidate any agreement to use a new AME?
Furthermore, if applicant’s position is that UR/IMR does not apply and that the AME should determine all medical necessity questions, by what right does the applicant impose costs on the defendant through the IMR process? Is this not frivolous? Should applicant not be ordered to pay back the costs of IMR so brazenly incurred?
The position that applicant is entitled to request IMR and, yet, is not bound by IMR’s determinations seems contradictory and unsustainable.
If a section of the Labor Code can be invalidated by “contracting” around it, by that rationale, could parties not simply contract out of the workers’ compensation system altogether? The WCAB has shown exactly zero hesitation when the facts and the law support invalidating an independent contractor agreement and finding an employment relationship, regardless of the actual agreement between the parties – why should the WCAB hesitate to invalidate a contract agreement as to addressing future medical care in this case?
The bright side of this is, of course, that there are relatively few of these cases out there. Accordingly, we can hope to see fewer and fewer of such disputes go south for the defense community in the years to come.
The content of this web log is for information purposes only and should not be construed as legal advice. No attorney-client relationship is formed by this site. If you would like to speak to a workers’ compensation defense attorney, please contact Gregory Grinberg at 888-226-3400.
