WCDefenseCA

Happy Monday, dear readers!

The summer is quickly drawing to a close, and soon children will be returning to their classes, young men and women will be returning to their college or grad school campuses, and the brave citizens of California’s workers’ compensation system can return to the soul crushing routine of denying benefits, litigating panels, and watching heaps of slack catapulted at applicants.

Once in a while though, the defense community gets to see a victory unfold, typically a small one, to help restore our faith in the needle of sanity that, as legend has it, exists in the chaos of workers’ comp.

While doing some research recently I stumbled upon the case of Bounthonv. Safe Streets USA, LLC.  In this panel decision, the WCAB affirmed the WCJ’s opinion that defendant’s offer of work precludes an entitlement to TTD benefits.

The typical case which we all encounter is this:

Applicant: “Oh boy, I sure would love to go back to work.  I hate sitting around the house, doing nothing, secretly working my second job while I collect TTD benefits.  If only my employer could accommodate my work restrictions, I would gladly get back to it!”

Employer: “We found this charity that can put you to work to accommodate your work restrictions.  We’ll pay you your normal wages and the charity will get the proceeds of your labor for free.  Everybody wins.”

Applicant: “…”

Employer: “…”

Applicant: “Not like that…”

So then you have the Bounthon v. Safe Streets USA, LLC case, which I stumbled upon recently doing some research on unrelated matter.

Therein, applicant sustained an admitted injury while working as a security alarm installer.  Defendant made an offer of alternative modified work with job duties available at the Salvation Army (Salvation Army was not associated with this case at the time of injury and is a separate entity, not the original employer).

After attending orientation at the Salvation Army, applicant declined the job but stood ready and able to accept and cash temporary disability checks.   At the expedited hearing that followed, he advanced the theory that his employer could not offer him work for another employer.

Applicant also alleged that because the Salvation Army is a Christian organization, “requiring” applicant to work there violations a host of his rights under the United States Constitution, including freedom of religion, and freedom from involuntary servitude (at trial, applicant claimed that “working for the Salvation Army was a form of ‘modern-day slavery’”).

The WCJ, in finding the offer of work valid, noted that no evidence was offered at trial as to what applicant’s religious beliefs were or why working at the Salvation Army would violate those beliefs.

Part of the WCJ’s reasoning was that Labor Code section 4657 provides that temporary disability benefits should be based on loss of physical ability or earning power caused by the injury.  The Labor Code gives no regard to ability to earn, not where the employee earns the money.  To quote the WCJ: “an employee is expected to earn the wages that his injury will allow, regardless of where they are earned.”

The WCAB denied applicant’s petition for removal.

This is certainly a reasonable and positive result for the defense community, and, really, for the workers’ compensation community.  Returning to activity that is medically permissible is a good thing.  If that activity consists of stocking shelves of donated sweaters at a Salvation Army instead of stocking shelves of new sweaters at a Gap, the end result is the same: productive labor and a lessening of the addictive and destructive pull of idleness.

But, aside from the result making sense, I would add a bit of analysis of my own.  Labor Code section 4658.1(c) specifically defines “alternative work” as “work that the employee has the ability to perform, that offers wages and compensation that are at least 85 percent of those paid to the employee at the time of the injury, and that is located within reasonable commuting distance of the employee’s residence at the time of injury.”

By contrast, subsection (a) defines regular work as “the employee’s usual occupation or the position in which the employee was engaged at the time of injury…”

In other words, the Labor Code specifically contemplates that “alternative work” will be based on (1) employee’s ability; (2) wages; and (3) reasonable geographic location.  The legislature could have added requirement of the same employer or business entity, but chose not to.

Just from my own, small and humble practice, I am seeing an increase in such offers.  Not every employer (or location for a larger employer) can accommodate work restrictions imposed by the various physicians.  But, typically, non-profit charity work is available to accommodate very light restrictions.  The benefits to all parties that are ethical and honest, are undeniable: the charity gets assistance in doing work pro bono publico, the employee continues to be active and is driven to return to work (to quote Benjamin Franklin – “I think the best way of doing good for the poor, is not making them easy in poverty, but leading or driving them out of it.”  So too, hour humble blogger submits, for those on temporary disability – it is a far greater service to guide such injured workers out of needing temporary disability benefits, rather than make them comfortable and inclined to continue needing and receiving them), and the employer gets the benefit of an active employee eager to return to work.

What right can an injured worker assert not to perform volunteer work within his or her restrictions and receive the same pay?  Of course, “I don’t want to!” is not a persuasive reason.

What do you think, dear readers – is your humble blogger missing something?  Is it beneath one’s dignity to do work for a charity?  Is the greater religious mission of a charity organization that does not discriminate in the beneficiaries of its charity a good reason to reject an offer as described above?

Happy Monday, dear readers!

Allow me, if I may, to invite you to take a short break from drafting your letters to the Governor asking him to use the power of eminent domain to confiscate this blog and shut it down for good.

Since we’ve gotten to know each other, I will let you in on a little secret.

One of the biggest fears defense attorneys harbor is failing to take credit for PDAs in any settlement.  As happy as our cold, dark, defense attorney hearts get when we come home bearing an Order Approving C&R, it also makes us wake up in a cold sweat and panic that we failed to list the permanent disability advances on the C&R.

Now, the WCAB could be a bit more sympathetic to these oversights, but, unfortunately, all the slack is spent on applicants with none left for us poor defense attorneys!

Such was the case of Quintanilla v. Tarzana Five-Four Corners Investment, a recent panel decision.  The parties proceeded with a C&R, but nearly $6k in PDAs were not credited against the $50k C&R.  Defendant sought reconsideration, of the OAC&R, arguing that the permanent disability advances should have been credited against the settlement amount.

The WCAB reasoned that there’s no “good cause” to set aside the OAC&R, because there were no signs of “mutual mistake of fact, duress, fraud, undue influence or procedural irregularities.”    The WCAB took the position that because defendant failed to list its PDAs and claim credit for them on the C&R, applicant essentially gets “free money.”

So, what’s to be done?  Sometimes the lines of communication break down between claims and legal and the PDAs to date don’t make it to the attorney in time to be incorporated into the C&R.  Sometimes claims sends a signed C&R to the attorney for walkthrough.

Well, the only quasi fail-safe that comes to your humble blogger’s mind that might work is putting in boilerplate language into the C&R asserting credit for any PDAs, subject to proof, even if not reflected on the C&R.  Other than just double and triple checking the PDAs before walkthrough – what would you do?

Have a good week folks!

Happy Wednesday, dear readers!

Normally, your humble blogger would save the grim and death-related posts for closer to Halloween.  However, as retail stores continue to set the start time of selling Halloween costumes, candy, and decorations earlier each year, who is your humble blogger to resist?  After all, as Thomas Jefferson said, “in matters of style, swim with the current.”

So, I bring to your attention the matter of Wilson (deceased) v. Securitas Security Services USA, a writ denied decision.

Applicant had sustained an admitted injury and the ultimate award for permanent disability was 61%.  Applicant died about 1.5 years after the date of injury from non-industrial causes.  Relying on Labor Code section 4700 (“Neither temporary nor permanent disability payments shall be made for any period of time subsequent to the death of the employee.”)

Just think about that for a second – assuming max earner status, a 2012 injury would pay $230 per week, and 61% PD would result in $82,627.50.  As applicant passed just a year and a half after his injury, and assuming at least some period of temporary disability, there may have been some $70,000 or so (roughly estimated and speculated upon by your humble blogger) of unpaid PD.

Applicant’s heirs challenged Labor Code section 4700 on constitutional grounds, arguing that application of section 4700 constituted “unjust enrichment” for the insurer.  Although fairly grim, this is an accurate statement.  But, technically speaking, doesn’t the non-industrial death of any applicant relieve an insurer of future medical care obligations?  In that sense, though unfortunate, the non-industrial death of a claimant results in a limitation of exposure for the insurer.

On Reconsideration, the WCAB affirmed the WCJ’s application of section 4700.  It further rejected the constitutional argument on the basis that, as an administrative law body, it lacks jurisdiction to make determinations about the constitutionality of a statute.

The Court of Appeal likewise denied review.

In this particular case, applicant had accepted an offer to return to work after his injury and passed away while still an employee.  In such an instance the employer was in a position to immediately notify the insurer and the defendant was able to move swiftly to terminate PD benefits.

On that note, dear readers, your humble blogger wishes you a swift and easy rest of your week.

A little known fact is that the Founding Fathers, in drafting the Constitution, knew that one day our ears would be graced with the angelic chords of the Supremes.  Beautiful songs such as “Come See About Me” and “Stop! In the Name of Love” would charm a nation some day.  For that reason, almost 200 years before the songs themselves were ever written or performed, Benjamin Franklin and John Adams insisted that a nod to these artists should feature in the United States Constitution.  Thus the Supremacy Clause was born.

Article VI, clause 2 of the United States Constitution states “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof … shall be the Supreme law of the land; and the Judges in every State shall be bound hereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Why does your humble blogger, a lowly practitioner of an area of administrative law of a single state bring this up?  Well, about that…

California is sort of a Jekyll and Hyde state.  On the one hand, it is on the forefront of innovation.  Technological (and, to some extent, cultural) advancement in California leads the way for the rest of the Union.  On the other hand, Sacramento can’t help but stifle any sort of growth or development that might render the traditional services of government less necessary or important.

So, when Silicon Valley says “hey, how about we do driverless cars?  You’ll have fewer speeding violations and DUIs, and people who can’t afford a car or are too disabled to operate one will still have access to easy transportation?”  Dr. Jekyll says “that’s great! Let’s do it!” and Mr. Hyde says “policing DUIs provides jobs and revenue and what about all the drivers that will be out of work?!?”

Well, it just so happens that not too long ago, all the Silicon Valley big-wigs were sitting around eating avocado toast and listening to The Supremes, when one of them said “wait a minute, why don’t we go Federal?”

The Los Angeles Times is reporting that legislation is making its way through the House and the Senate to provide a single set of rules and regulations from sea to shining sea for self-driving cars. The Self Drive Act (H.R. 3388) “preempts states from enacting laws regarding the design, construction, or performance of highly automated vehicles or automated driving systems unless such laws enact standards identical to federal standards.”

What does that mean for California?  Well, for one thing, if the Self Drive Act actually becomes law, assuming that self-driving car manufacturers can actually comply with it, California’s efforts to keep  self-driving cars off the road (and out of the labor market) might be all for naught.

If you ask your humble blogger (which I assume you would since you’re reading this blog) as much as I hate the federal gubmn’t coming to California to tell us how to raise our organic, free-range, sustainable farmed avocados, this wouldn’t be the worst thing to happen.  Transportation costs would plummet for QME exams and medical appointments, and your humble blogger is very much looking forward to getting real work done during the commute to and from court.

What do you think?

Hey there dear readers – you made it to Friday and you should be congratulated.  We are powering through the summer of 2018 and it is a tough one.  The heat is unbearable, the recent QME pool is shallow, and, with each passing day it becomes less and less likely that your humble blogger will be tapped to fill the recent Supreme Court vacancy (hope springs eternal, dear readers…)

Anywho, since “Justice Humble Blogger” is not in the cards, regular humble blogger will give you some sage advice and invite you to check your MPN and your list of lien claimants for a certain Ronald Grusd, M.D., and his companies: California Imaging Network and Willows Consulting Company.

Dr. Grusd was sentenced to 10 years in federal prison for a healthcare fraud scheme.  Apparently, Dr. Grusd would bribe other physicians to refer patients to him and then bill insurers.

So if you’ve got liens from any of these operations, it’s time to stock up on apples and push them back.

“California Imaging” has about 145 liens listed on EAMS.

It looks like for his $100k in bribes he was referred over $22 million in business.  Not a bad return on investment if you don’t count the 10 year prison sentence.

So, once again, dear readers, before you check out for the weekend check your liens and MPNs.

Happy Wednesday, dear readers!

I return to you now, to grace your e-mail inboxes and pollute your otherwise rational thinking.  In the immortal words of the 20th Century poet Eminem, “Guess who’s back, back again, blogger’s back, tell a friend…”

So your humble blogger comes back with a report of a victory for defendants, and also for man’s ever intensifying battle against technology.  The case is that of Beitpolous v. California Correctional Healthcare Services (a WCAB Panel Decision).

In a denied case, applicant obtained a PM&R panel and after the strike process the QME remaining was listed as appearing via telemedicine (“Evaluation will take place through the use of telehealth using interactive audio, video, or data communications.”)

The telemedicine exam was conducted by having an assistant call ahead of the evaluation and take applicant’s complete history, and then, at the exam, the PQME appeared via video-conference while a QME chiropractor was in the exam room with the applicant and conducted the actual exam and took measurements (within view of the actual QME).

Defendant apparently was not advised that the QME exam would be via telemedicine until it received the QMEs report which reflected the same.  At that time, after defendant refused to accept the case based on the QME’s opinion, applicant set the matter for an MSC.  At the MSC defendant objected to the panel because the exam was conducted via telemedicine.

The WCJ ruled in favor of the defense, disqualifying the QME because the exam was conducted via telemedicine.  On removal, the WCAB sided with the defendant and the WCJ, citing Section 4628(a) which provides that no person other than the physician signing the medical-legal exam may take a history, review and summarize records, or compose the conclusions of the report.

The WCAB ruled that “constitutional principles of fairness and due process require that the identity of a physician assistant who is to physical perform the clinical examination be disclosed to the parties promptly upon the QME’s selection.”

So, absent an agreement ahead of time by the parties to allow for a telemedicine exam, it looks like any such exam would be vulnerable to an objection.

On the other hand, if an applicant’s attorney REALLY wanted to keep the QME exam, would advance disclosure cure any potential defects?