WCDefenseCA

Hi there dear readers – Friday is upon us and your humble blogger can already hear the hum of the margarita machines and the unscrewing of scotch bottles just around the corner.  But, as if cursed by the G-ds of workers compensation to almost always deliver bad news, I bring you the report that AB553 inches closer to being law, having just passed committee.

What is AB553?  Referenced previously on this most humble of blogs, AB553 would require any portion of the $120 million return to work fund to be distributed in equal shares to workers every year.

At present, injured workers who receive a SJDB Voucher might be entitled to an additional $5,000 forced out of the pockets of employers from the state as part of the “return to work” program.  Fully funded, the RTW fund could provide a supplemental $5,000 to 24,000 workers per year.  Presumably, if only 12,000 workers applied for the supplemental program and used up a total of $60 million, AB553 would have the effect of directing the remaining $60 million would be disbursed to those workers by the following April.

Now you might be thinking: Greg, your bow ties make you good lookin’ as heck, but you’re wrong here: why are you begrudging the poor injured workers some free money?

Well as sharp as I look in my bow ties (which everyone should wear, mind you) this bill is yet another tax on the employer.  How injured one is and how much of a “supplement” to a voucher one needs is not determined by how many other injuries there were that year.  The [barely] veiled policy behind this bill is if we have a year where employers make sure more of their employees are safe or, when injured, are returned to work, they should STILL be taxed a collective $120 million next year.

If we were to take for granted that the program is a good idea to begin with, then employers should be rewarded for avoiding the need for a voucher, either through safe work places or through re-employing permanently disabled workers, by NOT being assessed $120 million each year.

Hopefully AB553 will suffer the same fate as befell so many hopes, dreams, and aspirations of your humble blogger: rejected, mocked, and forgotten.

In the meantime, have a good weekend!

There are a lot of crazy movies and shows out there about prison.  They all include the same general prison themes, which your humble blogger won’t repeat here (this is, after all, a relatively family-friend blog).

But if you’re watching reruns of the HBO show Oz and the Neo-Nazis gang is planning their next move against the prison wardens and the Italian gang which has cornered the smuggled cigarette trade, one thing you won’t hear any of the characters mention is that they hope they can still get a voucher when they get on “the outside.”

So consider, if you will, the case of Dennis v. State of California, a recent panel decision.

Applicant sustained an admitted injury while working as an inmate laborer.  He was given an offer of regular work but advised he could not accept the offer because he had been released.

One would think the sweet smell of freedom would make a person so happy he wouldn’t care about a voucher, but not so.  Applicant requested dispute resolution before the Administrative Director, but the AD made no response.  Applicant then filed a DOR 140 days after initially requesting dispute resolution before the Administrative Director.

The WCJ found applicant’s DOR was not timely, as section 10133.54(f) holds that any request not responded to within 60 days shall be deemed denied, while subsection (g) allows a party to file a DOR within 20 days of any adverse determination by an administrative director to seek an appeal.

Thus…

The Panel however rejected the idea that the administrative director has the final say on whether applicant is entitled to a voucher.  Furthermore, it found the offer made by the prison was not a “bona fide” job offer because applicant was released from prison and could not return to the prison for employment.

The petition for reconsideration was granted and the defendant as ordered to provide applicant with a voucher.

Now, this is frustrating to you humble blogger for a number of reasons.  The incentive for returning an injured worker to work is escaping liability for a voucher (and advances).  But there are lots of situations in which the employer could accommodate the permanent work restrictions but the employee cannot accept the job.

Sometimes workers get deported; sometimes they get fired for cause; sometimes they move to the other side of the country; sometimes the business closes and everyone loses their jobs.   None of these scenarios warrant a voucher.  In the instant case, it was not applicant’s industrial injury that precluded a return to work, but circumstances that fell equally on other inmates released from prison who lost their jobs without having sustained an industrial injury.

Your humble blogger respectfully submits that so long as an employer could have accommodated applicant’s industrially caused work restrictions, its liability for a voucher should be cut off.

Happy Monday, dear readers!

Your humble blogger is back to pollute your in-boxes once more!  Did you miss me?

As alluded to a time or two before on this blog, your humble blogger was a big fan of Star Wars.  What I have learned applies equally to Star Wars and Workers’ Comp – nothing good can come from revisiting a settled matter.

The original Star Wars movies were great – but it’s been downhill ever since George Lucas decided he had to reopen the books.  Like a child on Christmas morning unable to stop tinkering with his new toy until he breaks it, Hollywood gave us Star Wars movie after Star Wars movie until all the joy was stolen from the franchise.  Help us Kurosawa – you’re our only hope!

The point is, of course, that things once settled should stay settled.

But then, of course, the Labor Code gives applicants the right to petition to reopen their claims for “new and further disability.”   Just like your humble blogger’s enjoyment of Star Wars was poisoned by too many sequels, so too can a petition to reopen steal the satisfaction of a resolution by stips in a workers’ comp claim.

One recent case touching on this is a writ denied decision from July of 2018, Miguel Villa v. WCAB.  Applicant filed a petition to reopen for new and further disability pertaining to his lumbar spine within 5 years of his date of injury of in 1990, and then amended the application to include psyche in 2006.

The defendant naturally started scratching its proverbial head – how can a petition to reopen a 1990 injury filed in 1994 be amended in 2006 to address psyche?

Well, the answer is that it shouldn’t, and, more importantly, it can’t!

After all, despite our beloved workers’ compensation system being given to flights of fancy and a whimsical interpretation of what may generally be referred to as “rules,” it’s not total fantasy!

The WCJ, in recommending petition be denied and the finding that the claim for a psyche injury was made beyond the five-year mark and was thus barred by statute, framed the issue as follows: “whether there is jurisdiction to award new and further disability indemnity related to compensable consequence injuries which arose after the five-year period and after Petitioner’s new and further spinal disability had reached permanent and stationary status, despite the timely filing of a Petition to Reopen.”

The WCJ cited Beck v. WCAB (65 CCC 845), a writ denied case from 2000, for the proposition that new and further disability must already exist prior to the 5-year mark.  The case of Hartsuiker v. WCAB, a 1993 decision, was also cited to reject the suggestion that merely filing a petition to reopen nullifies the 5-year limit on the WCAB’s jurisdiction.

The panel denied applicant’s petition and adopted and incorporated the WCJ’s recommendation.