WCDefenseCA

Happy Monday, dear readers!

Your humble blogger has a case for you today on one of those topics that probably stands out as a favorite for everyone (that one was sarcasm, so please be ready for what comes next) – penalties!

Penalties (and sanctions) typically only affect defendants.  It is incredibly rare for any form of penalties or sanctions to be imposed on applicants (or their attorneys).  When it is the misdeed of the applicant attorney that causes the harm to the defendant, the injured worker often serves as a human shield for the attorney’s actions.  We wouldn’t want to punish the injured worker, would we?

Well, the case I’m bringing to your attention today is about penalties on alleged defense inaction (it’s not entirely clear from the case what caused the delay in issuing the voucher, or if this delay was reasonable, but the penalty dispute on the voucher itself was resolved by agreement).  In the case of McFarland v. Redlands Unified School District, a relatively recent panel decision, applicant sought penalties for the delay of a supplemental job displacement voucher, a claim resolved by agreement, but ALSO on the $5,000 return to work fund supplemental to the voucher.

The case-in-chief was resolved by way of C&R, and a voucher was to be provided to applicant.  Defendant was late getting the voucher out and so paid a penalty on the value of the voucher itself.  But applicant sought an additional penalty on the $5,000 return-to-work fund offered by the state under Labor Code section 139.48.

The reasoning behind the WCAB’s decision lies in the fact that the extra $5,000 provided by the state (after being collected from California’s employers and insurers) is not a benefit provided by the defendant.  The extra return-to-work fund is a supplemental benefit to those provided by the defendant, and so is not subject to the penalty.

What happens when there are consequences beyond the immediate provision of benefits?  If a delay in reimbursement of mileage caused an indigent applicant to be evicted from his apartment, is there a viable claim for penalties above and beyond the mileage reimbursement itself?  Based on this decision, it doesn’t look like it.

Hello there, dear readers, and happy St. Valentine’s Day!

Since time immemorial, true love has been demonstrated by committing acts of theft as a couple, best captured by James and Anne Bonny or Bonnie and Clyde.  It is fair to say, until you’ve engaged in theft, mayhem, and various other acts of crime, you haven’t really experienced TRUE love… amirite?

Anywho, in that spirit, I bring you an update to a story from a while back, in which your humble blogger passed on the info that Marcus Buckley went down for the fraud scheme pulled off with his insider conspirator – an adjuster!

Well, the news is out now that his partner in crime and, apparently, in love, Kimberly Jones, has now been sentenced to 33 months as well.

Truly, a modern-day Romeo and Juliet story, where the star-crossed lovers are kept apart by the arbitrary and capricious machinations of due process, the rule of law, and basic justice for the victims of their theft scheme.

Today, your humble blogger and his humble readers might bring flowers and chocolate home to their respective significant others, but as sweet as chocolates are, and no matter how fragrant the flowers, these gestures will hardly compare to the thrill of stealing $1.6 million from an insurer, robbing a bank, or even engaging in piracy on the high seas.

Happy Valentine’s Day!

Happy Monday, dear readers!

A while back, your humble blogger asked questions (as I often do) about Labor Code section 4061(i): how does this work?

4061(i) provides, after all, that “no issue relating to a dispute over the existence or extent of permanent impairment and limitations resulting from the injury may be the subject of a [DOR] unless there has first been a medical evaluation by a treating physician and by either an [AME or QME].”

So… WHAT DOES IT MEAN?!?

One panel decision held that failure to object to the DOR citing 4061(i) waives the objection, but now another, Bustos v. WCAB/Randstad Placement Pros, a writ denied case, holds that an evaluation is enough – the fact that the treating physician has declined to address PD (or find applicant P&S) is not good grounds to hold off trial or close discovery.

In Bustos, applicant was examined by her PTPs, but they never addressed PD. Meanwhile, her PQME had found her permanent and stationary and expressed an opinion as to her PD level.  Applicant sought reconsideration arguing that defendant’s DOR was defective because it had not complied with 4061(i).  However, in affirming the WCJ, the WCAB concluded that the trial presented two competing opinions: the PTP who did not find applicant permanent and stationary and the PQME who did.  The WCJ found the PQME more persuasive and thus the matter properly proceeded to trial.

As such, the WCAB rejected the claim that an applicant must be found permanent and stationary by two doctors prior to proceeding to trial.  It appears that an examination is sufficient to satisfy the requirement of Labor Code section 4061(i).

However, what if the pieces on the game-board were flipped?  If applicant’s PTP had found her permanent and stationary, but the PQME had not?  Could one party force a trial at that point?  I think so.

Now here’s another question – let’s say Ms. Bustos’ PTP ultimately does find her P&S, and provides a higher PD rating.  Would that report provide good cause to reopen for new and further disability?

Tell me, dear readers, do you ever order room service while staying in a hotel?

Well, it appears that a slowly growing trend might be catching on in some of the more expensive hotels, which will probably trickle down to the more affordable ones and the cruise ships before too long.

The New York Times has a report on the increased frequency of use of robots by hotels to deliver room service.

One of your humble blogger’s oft-visited topics is the automation of the workforce.  Typically, room service clerks will be plopped into occupation code 322, which carries an “F” variant for spine impairments, but “H/G” for wrist injuries.

Considering also that the average weekly wages of a hotel room service clerk will include minimum wage and tips, any state that recognized cumulative trauma claims (such as, for example, California), would see employers cut some of their claims by replacing room service clerks with some of these robots.

Although a bit dated, this article reflects that one of these models, SoftBank’s “Pepper” costs $1,660 to purchase with a monthly fee of $225 as part of a multi-year contract.  How do those expenses stack up to a minim wage worker (at least) and an increase in the workers’ compensation premiums?

The new facts of life that are emerging are simple (if a bit scary).  Robots are coming for the jobs – not just the dangerous ones; not just the ones where the human employee does not need to interact with the customers or clients; not just the repetitive ones.

The cute-faced and chirpy-sounding robots are coming for customer service jobs as well – from bartenders to room service clerks.

And, what many applicant attorneys refuse to consider when they boast about protecting injured workers by lobbying for more benefits, or using the cost of litigation to extort unjustified benefits, is that they are really pricing more and more workers out of the job market.

Pepper the robot will never get sick, will never be rude to a customer, and will never file a workers’ compensation claim.  Can any human worker honestly say the same?

Your humble blogger strongly doubts a machine will ever replace a workers’ compensation defense attorney, but, that being said, if machines replace all the workers, will a workers’ compensation attorney still be necessary?

Sounds like it’s time for a drink.

Ok dear readers, it’s Monday, and I’ve got some semi-good news for you!

You may recall a while back this blog diligently wrote about the Guzman case.  No, no, dear readers, not THAT Guzman – your AMEs and QMEs are still free to go fishing through the guides to make sure the injured worker gets enough money from the case.  The other Guzman, the one in which the WCAB held that a soil compactor landing on applicant was considered both sudden and extraordinary such as to defeat the 6-month employment rule of Labor Code section 3208.3(d).

Well, SCIF was not inclined to let matters sit, so it took the WCAB up to the Court of Appeal.

Just last Tuesday, the COA issued its (unfortunately) unpublished decision reversing the WCAB.  The COA took note that the incident happened when applicant as using the compactor on uneven ground.

Previously, at trial and on recon, the reasoning relied on applicant’s testimony that he had never heard of a compactor falling on anyone and that, in his 12 years of experience, he had never lost control of a compactor (prior to this claim).

On Appeal, SCIF advanced the theory that for an even to be “extraordinary” it must be “uncommon, unusual, and totally unexpected.”  As such, the “risks of tilting, falling, or losing balance while operating the heavy machine on a 45-degree slope were all reasonably foreseeable risks.”  SCIF also argued that the burden of proving that the event was sudden and extraordinary falls on the applicant, not on the defendant.

In reversing the WCAB, the Court cited three published opinions: Matea, Garcia, and Dreher.  Relying on this authority the COA noted that (1) it is the applicant and not the defendant that bears the burden of proof in establishing an event as sudden and extraordinary; and (2) “Guzman did not provide any evidence establishing that it is ‘uncommon, unusual, and totally unexpected’ for a rock to be in soil, for a compactor to rise when striking a rock, or for an operator to become unbalanced and fall when the compactor rises on a 45-degree hillside.”

But, after holding that there was insufficient evidence to support a finding that the event was “extraordinary” the Court of Appeal went further and held that the event was not even sudden:  if the circumstances in question are working on a slope rather than on even ground, applicant had been working on a slope for some 30 minutes before the accident.

So, great news, right?  Well, not so much.  First off the case is not published so we can’t exactly rely on it as compelling authority, although the reasoning can be copy-pasted into any trial brief and shamefully asserted as the attorney’s own words.  We’re lawyers, not saints, and we’re not above plagiarism!

Also, think about the litigation budget SCIF incurred to get this far.  Not only did SCIF have to shoulder the burden of a petition for reconsideration, but also a petition for writ of review.  The delay and cost involved might make any private-sector defendant hesitate.

This result should encourage us to continue litigating and appealing these cases because victory is possible, and this result will hopefully be a decent taste of reality to applicant attorneys.  But, that being said, if anyone has the Court of Appeal on speed-dial, perhaps we could encourage the Court to publish this case?

Happy Friday, dear readers!

I don’t often serve as an advertising billboard for the DWC, but, motivated by self-interest, I’m going to do so today.

The Medical Unit is accepting applications for the QME exam of April 28, 2018.  Please, please, please – if you know any eligible doctors who are diligent and fair, invite them to apply and joint the PQME pool.

My current record for having to seek replacement panels because everyone is booking a year out is 5 – I’ve received 5 replacement panels before a QME was found that could timely set for an appointment.

There are a lot of great QMEs right now that I’m happy to send my cases to, but sometimes they just don’t have the availability.

So, simply put, we need more QMEs, and the way to do that is to have more medical evaluators register for the test, take it, and start showing up on panels.  If you have friends, family, or people in your network (social or professional), please encourage them to look into this.

And, of course, this goes for both applicant and defense community members – if the claim is denied, 5 months of panel replacement requests means 5 months without any benefits for the injured worker.  If your claim is accepted and that one pill-pushing, TTD assigning, everything-is-industrial PTP that you can’t seem to kick off your MPN is paying off his third vacation home on your claim, you might want to get a reasonable QME to P&S the guy yesterday.

And don’t think the AME route is the answer to this – it’s not.  Here in the Bay Area at least, a lot of the AME doctors that the parties would agree to are booking 6-12 months out.

We would all benefit from refilling the pool of reasonable, competent, and fair evaluators.  To do that, we’re going to have to take matters into our own hands, because a Newsline post on the DWC website is probably not going to do it.  Otherwise, you might end up with a QME like this…

Have a good weekend!