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Archive for January, 2018

Racial Bias by a PQME?

January 19th, 2018 No comments

Alright, dear, readers, it’s Friday.  You’ve made it once again.  And you are to be congratulated, of course.

You know, when a young man or a young woman sets out on a career in law, we are all prepared to see and hear various things.  We know we will meet people from different walks of life, bringing different cases to our attention.

That being said, there are still certain things that raise eyebrows, even among the seasoned members of the bar such as your humble blogger.

One of these things was recently discussed on Lexis, wherein a neurology PQME had concluded that because of an applicant’s “Negro blood” the PQME had certain expectations for the injured worker’s physique.  Of course, applicant’s counsel sought to strike the PQME’s report and the WCJ granted this request.  The commissioners concurred and the PQME’s reports were stricken and applicant was entitled to a replacement panel.

How, your humble blogger doesn’t like to name names, as we all know, but it’s not that hard to review the panel opinion and find the name of the QME.  I imagine that this particular PQME is going to have some difficulty in future cases where this history of apparent racial bias has been exposed.

However, that being said, we have another case out there – City of Jackson v. WCAB – wherein the Court of Appeal upheld a QME’s apportionment to previously asymptomatic genetic factors causing a spine condition (and/or worsening it).

Now, clearly, there’s a difference between identifying a genetic condition resulting in a more severe impact due to an injury and simple racial bias, relying on racial stereotypes instead of medical findings.

But, as anyone who has read a garden-variety medical-legal report will confirm, even the sharpest medical minds, the steadiest physician’s hands, and the nimblest surgeon’s fingers are of little assistance to the often unintelligible medical reports produced by these great healers and evaluators.

The instant case, Beecham v. Swift Transportation Services, is not decided wrongly.  That being said, it is a warning sign for all of us to make sure that, when necessary, we cure the record to avoid a tongue-tied QME from starting out explaining why a particular applicant’s multi-generational family history of high blood pressure resulted in the permanent disability caused by an industrially injury to be considerably worsened, and thus warranting apportionment… and ending up looking like he’s leading a Klan rally.

Have a good weekend, dear readers!

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Injuries Sustained Driving Back from AME Exam Are Compenseable?

January 17th, 2018 No comments

Happy Wednesday, dear readers!

Your humble blogger hopes you really did get Monday off, but, even if you didn’t, you work in the illustrious field of workers’ compensation – isn’t every day like a vacation?

Right.

Well, allow me to bring you this Pina colada of a blog post to enjoy during your proverbial day at the beach of denying benefits and arguing with lien claimants.

Today’s post is on the case of Minarik v. Del Taco, a somewhat recent panel decision and now writ denied claim, in which the WCJ and WCAB held that injuries sustained en-route to an AME exam on an accepted case were compensable consequences of the underlying injury.

Applicant Minarik was involved in an MVA on her way back from an AME appointment for an admitted injury.  She claimed the injuries sustained as a result of her MVA to be a compensable consequence of her industrial claim, which the defendant naturally disputed.  Defendant relied on Rodriguez v. WCAB, a 1994 Court of Appeal decision which held that injuries sustained from the litigation process were not compensable consequences. In Rodriguez, applicant claimed a compensable consequence psyche injury as a result of the termination of vocational rehabilitation benefits, which the Court of Appeal rejected in that the litigation process is not AOE/COE.

On a personal note, I, as a brave, courageous, and very modest workers’ compensation defense attorney, can attest that the workers’ comp litigation process does give rise to psychiatric injury… at least to the attorneys involved… how often does a father see his child scrape his knee on the playground and involuntarily mutter something like “non-industrial” or “off-duty recreational activity”?

The Defendant also relied on the panel decision in Evans v. San Joaquin Regional Transit District, a 2014 panel decision in which the commissioners rejected applicant’s argument that injuries arising out of an MVA which occurred en route to medical-legal appointment because the medical-legal exam was part of the litigation process for a contested claim.

Well, neither of these cases seemed persuasive to the WCJ or the WCAB commissioners in Minarik.  The WCJ reasoned that because Minarik involved an accepted claim, the medical-legal appointment was more akin to the medical (as in, medical treatment) rather than to the legal (as in, litigation process).

Relying instead on Laines v. WCAB, where the Court of Appeal held, in 1975, that injuries sustained en route to medical treatment are compensable, the WCJ distinguished Rodrigeuz because the compensable consequence injury in that case was psychiatric, whereas in Minarik, the injury claimed was orthopedic.  The WCAB further distinguished the Evans panel case because that case was denied, while the Minarik claim was already accepted.

Naturally, your humble blogger does not like this result?  If we draw a distinction, as the WCAB panel appears to do, between a medical-legal exam to determine AOE/COE and one to determine the extent of permanent disability or the need for further medical treatment, does that mean that injuries sustained to the WCAB for a hearing on those issues should also be held compensable?

If applicant is claiming an entitlement to TTD benefits and is in an MVA on the way to an expedited hearing, should the defendant be liable because the “litigation process” is limited only to AOE/COE determinations and not to nature and extent of benefits owed?  Should applicants be able to claim a cumulative trauma from all the driving they’ve done to their medical appointments?

Members of the defense community, especially those that have been around through more than one reform, tend to comment with some frustration that the scope of employers’ and insurers’ obligations continues to grow.

The one silver lining from this, and it is so thin you have to squint to see it, is that perhaps defendants can use this case to bolster control of medical treatment.  Sometimes applicants challenge the validity of an MPN because there is an insufficient number of doctors within the 30-mile mark of the applicant’s residence or employment site.  However, other times, applicants seek to treat with physicians 40 or 50 miles away when there are plenty of physicians much closer.

The potential for exposure for injuries sustained en route to these far-off treatment locations presents an argument for denying PTP requests for far-away physicians.

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Happy MLK Day 2018! Today IS a Court Holiday (FYI)…

January 15th, 2018 No comments

Happy Monday, dear readers, and happy Martin Luther King Jr. Day!

Martin Luther King Jr. Day is observed on the third Monday of every month and is a state holiday (at least in California), so, aside from whatever personal observance we might plan, California Rules of Court 1.10, any due date or deadline from today is extended until the next working day, or tomorrow, January 16, 2018.

Now, bear in mind, dear readers, although the courts may be closed today, a lot of folks are still going to be in the office.  I know of some depositions set to go forward today and plenty of employers who are not giving their employees the day off.

For that reason, it’s always important to rely on the official court holiday list to determine if the last day to take a particular action (file an appeal, file an answer, request a panel, etc.) must be done on that day.

For example, did you work on December 31, 2017?  Well, it’s not a holiday according to the courts – only New Year’s Day is (January 1, 2018).

Whenever there seems to be a split in your social and professional circles about whether something is a holiday or not, your humble blogger respectfully suggests you confer with the court calendar to make sure you really do have the day off!

In any case, happy Martin Luther King Jr. day!

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AB1749 – Out-of-California Police Activity to be Compensable

January 10th, 2018 No comments

Alright, dear readers, you remember the story of those Orange County Deputies that sustained serious injuries at the Las Vegas shooting?

Well, Orange County denied their claims on the theory that the injuries were sustained while outside of California, and thus non-compensable.

Well, Assemblyman Tom Daly has introduced an amendment to Labor Code section 3600.2 to include injuries sustained by law enforcement officers within or out of the state (Assembly Bill 1749).

If signed into law, hopefully the fears expressed in this case – that law enforcement officers would hesitate to spring into action while out of the state – would be dispelled.

Here’s hoping that 2018 sees a legislature that is sensitive to the snags and issues we face in the workers’ compensation world and gives us prompt (and thoughtful) amendments to the law.

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Happy (Belated) 2018!

January 8th, 2018 No comments

Hello my beloved readers! And a very, very happy 2018 to you!

Your humble blogger is back, at least for now,

So what’s new in 2018?  Well, here are a few things to look out for.

Minimum wage in California has gone up (of course!) and is now $10.50 ($11.00 for employers with more than 25 employees).  Now, bear in mind, in some places, like your humble blogger’s own, beloved San Mateo County, the minimum wage is as high as $13.50 per hour.  If you have a minimum wage employee currently on temporary disability, there’s a good chance you’ll see a demand for an increased rate.

Speaking of the TTD rate, as the State Average Weekly Wage saw a 3.6% increase, going from $1,164.51 to $1,206.92, anyone paying life pensions may want to calculate an increase based on COLA.

There’s also an increase in the TTD minimum, from $175.88 to $182.29.

What are you hoping to see in 2018? (let’s be realistic folks – from the litigation and legislation cookeries).

My wish list for 2018 includes:

  1. Some binding authority that vocational rehabilitation experts are irrelevant for post 1/1/13 injuries, as diminished future earning capacity is not part of the permanent disability equation;
  2. A reversal of the recent legal trend recognizing any “forceful blow” or any slip-and-fall as a violent act triggering liability for psychiatric compensable consequence disability (permanent OR temporary); and
  3. The birth of a new trend in which the medical unit issues panels with three doctors that set timely (I know this is a long-shot, but we can dream, can’t we?)

But, post important of all, I think we should all find 2018 to be full of success, good health, and happiness.

Let’s get to work!

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