WCDefenseCA

Happy Monday, dear readers!

Your humble blogger truly hopes you had a restful and meaningful Thanksgiving holiday.  If you didn’t, I imagine that your inbox is currently stuffed with auto-reply e-mails admonishing you for continuing to work as people got on with Grateful Thanksgiving Thursday, Frenzied Shopping Black Friday, Regret and Shame Saturday, and Gearing-Up-For-Cyber-Monday Monday.

Well, as the saying goes, “Christmas came early” and your humble blogger brings to you news of an excellent opportunity.

The WCAB, probably tired of having to shovel petitions for recon and removal out of their way to get to work, has announced openings for two deputy commissioner positions.  The pay looks good and if you’re a practicing attorney now, you might get to shift your focus from scorched Earth applicant’s practice or delay-and-deny defense practice to craft some meaningful guidance for the workers’ compensation community.

Seriously guys – there are empty seats for the commissioners’ bench and two vacancies for the deputy commissioners.  Perhaps it’s time someone took a break from litigating panel disputes and calculating interest on $294 in unpaid TTD to make a positive change.

We could use some decisive rulings on whether post 1/1/13 injuries still allow for vocational rehabilitation reports and rebuttals, or whether compensable consequence psyche allows temporary disability benefits in non-violent cases.

If you’re ready to make a change, submit your application before the deadline (December 4, 2017).

As for me, aside from doubting my own qualifications for the job, no doubt I would have to surrender my cheerful and witty commentary as part of the position, and so I shall remain, as I ever have been, your humble blogger.

Happy Friday dear readers!

As the Thanksgiving festivities are coming up, your humble blogger, ever the wise and learned counselor, reminds you to buy a turkey NOW before it’s too late!

In any case, as it appears a growing number of people are taking all or most of next week off, I wish you a restful Thanksgiving, one that is detached enough from our daily labors and trials to allow reflection for how much worse things could really be, and how fortunate we all are to have what we have.

Despite our daily protestations of the cruel burdens the workers’ comp system places on employer and employee alike (and, let us not forget that most tragic of victim — the workers’ compensation attorney), overall, things are pretty good, and the fact that they might be better in no way dulls the fact that they could be far worse.

All the best, from your most humble of bloggers!

Happy Wednesday, dear readers!

Your humble blogger hopes your week is proceeding at a quick pace, and that you are clearing off that to-do list so that you can have a restful and meaningful Thanksgiving Holiday.

In the meantime, your humble blogger brings you an interesting if unpublished decision (it’s interesting to your humble blogger, anyway).  Remember folks – if you cite an unpublished decision in California you will be thrown in a gulag and will get no potatoes this winter!

The matter is that of Bolanos v. WCAB and Jimenez.  Mr. Bolanos was a building owner who hired a certain gentleman, Aragon (not to be confused with Aragorn, King of Gondor, one the last of the Numenor and heir to Isildur), who had an otherwise valid contractor’s license but had allowed his workers’ compensation insurance to lapse.

When an employee, Jimenez (“applicant”), sustained injury during the work being performed for Mr. Bolanos, Jimenez sought benefits from Aragon, who later declared bankruptcy, and then from Mr. Bolanos, who was the technical employer by operation of law.

Now comes the fun part – While applicant filed an application for adjudication some 3 months after the date of injury, he did not actually sue Bolanos until 2011, around the time when Mr. Aragon declared bankruptcy.

Furthermore, even though an application was filed shortly after the injury in 2003 naming Mr. Aragon as the employer, and UEBTF was joined less than a year later in 2004, Mr. Bolanos was not joined as a party defendant until 2009!

Mr. Bolanos then asserted that latches and the statute of limitations barred any claims against him.

The WCJ ruled in favor of applicant on the statute of limitations defense, arguing that just because the attorney knew that Mr. Bolanos was the property owner, did not mean that he knew Mr. Bolanos would be the ultimate employer.

Mr. Bolanos’ petition for reconsideration also did little to help his case, as the split panel concurred with the WCJ.  The dissent, however, reasoned that allowing this claim against Mr. Bolanos to proceed now, joining him some six years after the date of injury, would encourage more stale claims to be presented.  Also, because applicant had an attorney that was aware of Mr. Bolanos’ position in the case, the claim should be barred by the statute of limitations.

The Court of Appeal granted review and in an unfortunately unpublished decision reversed the WCAB majority and the WCJ.  The Court then went on to apply a 1-year statute of limitations.  Citing McGee Street Productions v. WCAB (2003), the COA noted that a new defendant cannot be added after the statute of limitations has run.

Furthermore, the statute was NOT tolled because more than a year prior to adding Mr. Bolanos as a party, applicant was aware of his rights to file a workers’ compensation claim as evidenced by the fact that he pursued these rights by filing a claim against Aragon.

Here’s my favorite part of the ruling, however.  UEBTF argued that Mr. Bolanos was required to provide applicant with a claim form.  The Court of Appeal ruled that a claim form must only be provided “where the employee does not know of his right to file a claim… Here, although Bolanos never complied with section 5401, Zapata’s filing of a timely workers’ compensation claim demonstrates he was not ignorant of his rights.”

Happy Wednesday!

Happy Monday, dear readers!

You know, there is this wonderful movie that is not very well-known.  It’s called Johnny Dangerously, and therein lies a wonderful quote by the titular character: “Remember kid, crime doesn’t pay… well, [as Mr. Dangerously climbs into his ill-gotten limousine] it paid a little.”

That seems to be the lesson in a recent Court of Appeal decision, regrettably published as of November 1, 2017: Ford v. WCAB.  The Court of Appeal ruled that despite a conviction for fraud, if an injured worker can establish compensable industrial injury independent of the fraud, he or she is still entitled to benefits.

Applicant crushed one of his fingers in a car door while working, and sought workers’ compensation benefits.  In 2008, he was diagnosed with complex regional pain syndrome by a neurologist.  An AME examined him in 2009 but applicant refused to submit to grip strength testing, and the AME noted that applicant would not cooperate in an exam of his left upper extremity.  When visiting his treating physician, applicant would wear a sling.

Now comes the fun part!

Surveillance caught applicant removing his sling after doctors’ visits and driving his car, using his left hand to open the door and steer.  He was even videotaped using his left hand to carry a bag of groceries, and on another occasion videotaped driving to an appliance store where he lifting a washing machine into the back of the truck he was driving!

After the DA investigated, charges were filed and ultimately plead guilty to violating Insurance Code section 19781.4 and was placed on probation and ordered to pay $9,000 in restitution.

However, as the criminal case proceeded so did the workers’ comp case, and, despite the videos, the AME concluded that applicant lost most of the function of his hand, reducing it to a claw-like appendage.  A WCJ relied on these conclusions to issue an award of 70% PD, and the WCAB denied reconsideration.  When the employer sought reconsideration, this decision followed.

I’ve spoken at length about this issue with applicants’ attorneys on numerous cases.  The position is almost always the same as the reasoning in this Court of Appeal decision: just because he lied or “exaggerated” his limitations doesn’t mean he wasn’t actually injured.

Well, here’s the problem with this line of thinking.  QME examinations are not conducted in silence.  The QME and the PTP ask questions, inquire as to subjective complaints, and assume cooperation and genuine effort during the exam.  Unless they are performing an autopsy, the doctor has to rely on the information provided by the patient/applicant.

Once you have been established as a liar – particularly when there is a conviction on the books – the credibility is shot.  Just about any physical exam or diagnosis is going to rely at least in part on the credibility of the patient, especially when it’s something like losing almost all use of the hand, rather than an objectively verifiable injury (such as a fracture or amputation).

A conviction for fraud should carry more weight in California than this case suggests it does.

So, while crime might not pay, in workers’ comp, it pays a little.

Hello dear readers, and happy (early) Veterans Day!

As you know, Veterans’ Day is normally celebrated on November 11 of every year, but when it falls on a Saturday (like this year) observance is usually the workday before or after it.

Today, the WCAB should be closed and, as November 10, 2017 is considered a state holiday (observation of Veterans Day) any duty or obligation that was due today (like the last day to file something, for example) should be extended to the next working day or Monday, November 13.  (See California Rules of Court 1.10(b)).

As always, your humble blogger will make this shameless plug for Fisher House Foundation, a charity that helps veterans’ families with housing while the family members visit injured veterans in the hospital.

Of interest, CharityNavigator.org gives Fisher House Foundation 4/4 stars for accountability and transparency, with 91.3% of its spending going to its programs and services rather than administrative costs.

Here’s hoping you have a restful and reflecting Veterans’ Day, whether at your post at work or enjoying the day off.

Happy Wednesday, dear readers!

Quick question for you – what do you do when you’re forced to deal with a treating physician that you’d rather avoid?  If applicant’s counsel sends you a letter declaring Dr. Nick Riviera as the PTP, what do you?  Do you check your MPN? Good!

You know what else you should be doing?  You might consider checking out the suspended physicians list as well.  Unfortunately, the bulk of these are in Southern California, which doesn’t help us in the wild, untamed North very much.

The DWC just announced another 21 physicians suspended from participating in the workers’ comp system.  Your MPN website might not be keeping up, or your applicant might have escaped the MPN as it is.

Unfortunately, MPN standards as set out by regulation, sometimes make it difficult to comply, and some physicians that could find a healthy Olympic athlete totally and permanently disabled (within the four corners of the Guides, of course) get on the list out of necessity.

I know we can all think of a few doctors in our respective geographic area that somehow make it onto our MPNs but should really be riding shotgun to a PI lawyer in high-speed pursuit of an ambulance.

Perhaps if we keep a close eye on the DWC’s suspended physician list, we might get lucky in rejecting requests for treatment with physicians who only provide life support to an applicant’s case, rather than his health.

CORRECTION: Thanks to input from a gracious and kind reader, it appears that this case was ordered published.  Cite it with confidence!

Happy Monday, dear readers!

You know, the thing about unpublished decisions is that they are a double-edged sword.  Sometimes you’re grateful that they’re unpublished, and sometimes you resent it.

One recent unpublished opinion issued by the Court of Appeal in the case of Ly v. County of Fresno.

This is an interesting one, but in particular it is useful for those cases when an entity faces exposure from claims other than just workers compensation.

Three plaintiffs filed racial and national discrimination claims against the County of Fresno, along with workers’ compensation claims for psych injuries related to the discrimination.

So, miracle of miracles for the defense, the WCAB ruled that plaintiff/applicants’ complaints stemmed primarily from good faith personnel actions due to business necessity.

Two of the three plaintiffs filed petitions for reconsideration which were ultimately unsuccessful.

Well, with a ruling that the so-called discriminatory actions being found as “good faith, non-discriminatory personnel actions” by the WCAB, the defendant moved for summary judgement in the civil complaint, which was granted by the Superior Court Judge on the case.

On Appeal the Court of Appeal reminded the parties that claim preclusion applies if the decision of the former proceeding is final and on the merits, the present proceeding is on the same cause of action as the former proceeding, and the parties in both the former and present proceedings are the same.

This seems like something that would come up often enough in these cases.  The applicant’s attorney is probably thinking that workers’ comp is a stacked deck and the plaintiff will be able to stick the defense with all the discovery costs.

But it looks like the plan backfired, at least in the Ly case.  Perhaps the desk isn’t that stacked.

Sometimes employers elect to plant their heads deep, deep, deep into the sand and decline to actively cooperate with the workers’ comp case or the insurer’s efforts to mitigate the harm.  Great things can be accomplished with the employer and the adjuster (and don’t forget the defense attorney).

In this case, the defense got to pay workers’ comp rates to try their civil-court case.

Happy Friday, dear readers!

Is that a new injury or just a flare-up?  An aggravation or an exacerbation?

A recent panel decision on this point just landed on the writ denied pages of workers’ comp history.

In Clark v. City of Los Angeles, applicant sustained increased symptoms, need for medical treatment, and need for temporary disability due to a temporary flare-up of a pre-existing chronic back issue.

However, defendant took the position that this was not a new injury, but JUST A FLARE-UP, which meant that there was no obligation to provide benefits such as medical care or TD.

The WCJ ruled in favor of applicant and the WCAB affirmed.

So what the heck happened?

Applicant was doing push ups as part of his physical for the police department, and hurt his back.  He exhausted his modified/light duty and resigned his employment.  In pursuing his claim, applicant was examined by an AME who ultimately found that this was NOT a new injury because his condition had improved so much that this could not have been a new injury.

With that opinion in hand, defendant proceeded boldly into trial and was likely surprised by this result.

So if applicant returned to baseline… how could the WCAB have found a new industrial injury?

The commissioners drew a distinction between permanent disability and a new injury.  Even if applicant’s new permanent disability was 0%, this was an incorrect basis upon which to find no new injury.  Because the contribution of work activities made applicant unable to work, this was a new injury.

Conceivably, an applicant can sustain an injury, miss time from work and need medical treatment, and then return to work with 0% PD and no work restrictions, discharged as cured, right?  So why can’t the same thing happen for a worsening of a pre-existing injury?

Defendants should be particularly aware of this for the sake of mitigating exposure on active claims.  Applicants can aggravate their existing injuries and thus allow a defendant on the hook for benefits from a prior claim to drag a new pocketbook to the negotiating table.  Even shifting 20% of the cost of future medical care onto another policy might be worth the few hours it takes a defense attorney to file the relevant paperwork.

In any case, dear readers, remember – a new injury isn’t just permanent disability, but time lost from work counts too!

Have a good weekend!

Alright dear readers,

I hope you had a safe and fun Halloween.  Your humble blogger decided to take this opportunity to educate his kids about taxes by taking 45% of their candy while they were asleep.

Now that we’ve had our fun Halloween, let’s turn to something that really is scary for those of us who ply our trade and earn our daily bread in the workers’ comp world.

Crack open your 2005 rating schedules again, dear readers, and find page “3-4” where you might find the occupation “Bulldozer Operator” which is assigned occupation code 351.

There are a lot of dangerous things that can happen to bulldozer operators on the job, but if you search for relevant case-law on Lexis you’ll probably find a bunch of amputations and death cases.  In other words – pretty serious stuff!

Well, you can’t get hurt if you’re not working.

Built Robotics is pushing its new autonomous bulldozer.  It will allow a supervisor to control and plan out the work from a safe distance.  The bulldozer can work more than 8 hours per day, will never file for workers’ compensation, and doesn’t need a salary.

The most dangerous jobs are the most expensive and the first that make financial sense to replace with robotics and automation.

I’m not sure how much this robotic monstrosity will cost, but the next time a foreman sees a friend and co-worker hurt or the owner of a company sees his or her workers’ comp premiums spike, don’t you think the threshold for “reasonable expense” would go up?

Does our workers’ comp system still make sense when all the truly dangerous jobs are done by R2D2 and the Terminator?