Another Item on the Wish List: Rule 35.5(e)

August 14th, 2023 No comments

Happy Monday, dear readers!  Did you know that sometimes regulations are written with invisible ink? It’s true! Crack open the books and look at Rule 35.5(e)!  If you ask those in the know from the Workers’ Compensation community, that rule is practically invisible.  At least, that was the holding in the WCAB’s en banc decision in Navarro v. City of Montebello (2014) where the WCAB held that when a claim form for a subsequent injury is filed after a QME evaluation for an open claim, the applicant is not required to return to the same QME to address the subsequent injury.What’s the result?  Applicants can remedy their dissatisfaction with a QME’s report by doctor shopping for a second QME by filing an additional claim, typically a cumulative trauma.  This results in increased delays and expense for defendants who bear all litigation and med-legal costs in workers’ compensation matters.  The effect of Navarro and the position that rule 35.5(e) is invalid serves to drive up costs for defendants in this way.The recent panel decision in Sahli v. Nordstrom solidifies this position.  There, defendant petitioned for reconsideration of several findings by the WCJ, among them that the second panel obtained by applicant was valid based on Navarro.  The WCAB denied reconsideration, adopting and incorporating the WCJ’s report on reconsideration.   In that report, the WCJ wrote “Even before Navarro, the appeals board regularly ignored CCR 35.5(e) and allowed the parties, applicants in particular, to obtain new evaluations for different injuries.” Your humble blogger agrees with the WCJ’s opinion as to the status of the law – Navarro allows this process and offers no defenses for employers.  Further, Navarro does not allow the same remedy to employers – if defendants file a CT claim against themselves in the hopes of securing an additional panel, what mechanism exists for forcing applicant to attend such an evaluation?  A petition to bar and suspend benefits under Labor Code section 4053 offers no remedy, as benefits would not be barred nor suspended in the original claim. So, what would your humble blogger wish if he could rub the Legislative genie just the right way?  For the next reform to include a Labor Code section giving teeth to 8 CCR 35.5(e) so that it cannot be so easily ignored.  Applicants should not be entitled to doctor shop by filing new claims and getting new panels, and defendants should not be forced to incur additional costs when they do.  At the very least, in such cases, a petition to bar and suspend should apply to ALL pending claims.  Though a weak remedy for the pain of additional costs, at least this would level the playing field in terms of discovery and developing the medical record. 

What do you think, dear readers?  Is your humble blogger being naïve in wanting a level playing field?  Or is it not too much to ask that we enforce a regulation that’s been on the books since 2009?

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About Those Grants for Further Study…

August 7th, 2023 No comments

Happy Monday Dear Readers!

Your humble blogger brings you tidings from the California Court of Appeal! Several parties have sought review of the WCAB’s practice of granting petitions for reconsideration for further review and study, and it appears the practice does not pass Court of Appeal muster!

For a long time, well before your humble blogger was even a glimmer in his father’s eye, the WCAB would grant petitions for further study and then address the petitions on their merits down the line… sometimes more than a year later. The WCAB would engage in this practice to avoid the effect of Labor Code section 5909, which would deem petitions for reconsideration denied if not acted upon within 60 days.

The Court of Appeal invalidated this practice. Instead, the COA ruled, in Earley v. WCAB (2003) that the WCAB cannot simply grant the petition for review and study, but must state its specific reasons for the grant. However, the WCAB is not required to make a final decision within those 60 days, but only state its reasons.

The Court of Appeal had some relatively hard words in response to the WCAB’s reasoning for allowing the practice to continue. In response to the long standing nature of the practice, the COA held “a long-standing and incorrect procedure remains incorrect.” In response to the position of the WCAB’s as to its limited resources to state its reasons for each grant of reconsideration for further review and study, the COA responded “a claim that compliance is impossible is in essence a plea for more funding. This claim is misdirected because the Court of Appeal is not the entity setting the Board’s budget.”

So, what happens now? The petitions in this case revealed that, in response to a public records request, the WCAB disclosed that as of November 2021, there were 543 cases awaiting a final decision pending the WCAB’s grant-for-study orders. There are perhaps as many now pending almost two years later.

Are all of those petitions deemed denied under Labor Code section 5909? Or, are there now 60 days from the COA’s decision in Earley for the WCAB to render a final decision or a decision explaining its grant-for-study ruling? If they are deemed denied by operation of Labor Code section 5909, has the time to appear the denial now run or can parties petition the Court of Appeal for review?

It’s not entirely clear what will happen, although your humble blogger opines that due process and fair play would militate against such a harsh result, with the parties being cut off from any appeal rights after such a long wait. Likely, the prudent course of action would be to assume that the Earley decision effectively deems the appeals denied from the date of the Earley ruling, and the various parties can now file a petition for writ of review to the Court of Appeal on the assumption that Labor Code section 5909 has deemed their respective petitions for reconsideration denied.

In the meantime, your humble blogger expects the WCAB will take on the herculean task of addressing all those pending petitions to state the reasons for the grant-for-study.

In a best-case scenario, the Court of Appeal will address all those appeals by ruling they are premature, and allowing the WCAB 60 days from the Earley ruling to state reasons for each grant-for-study decision. In a worst-case scenario, the Court of Appeal will rule that the 60 days ran from the filing of the petitions, and that all those pending should have appealed to the COA long ago.

What do you think, dear readers? To quote a man more eloquent than myself… “‘There must be some way out of here,’ said the joker to the thief.”

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Cal. Supreme Court: Employers Have No Duty to Employees’ Household Member on COVID19

July 10th, 2023 No comments

Happy Monday, dear readers!  And truly, a happy Monday it is for the defense community, both workers’ comp and civil.  The California Supreme Court has issued its opinion in the case of Kuciemba v. Victory Woodworks essentially ruling that no duty of care exists on the part of employers to household members of employees when it comes to COVID19. 

The Kuciemba case, along with its brother-from-another-mother case, Ek v. See’s Candies, Inc. has been covered from time to time by this most humble of blogs.  Both cases essentially ask the same question: can the employer be held liable to household members of employees when COVID19 exposure (and, presumably, infection) occurred at the workplace and was brought home by employees to be transmitted to the household members?

Of course, the logic of this theory traces the path of Kesner v. Superior Court of Alameda County, a 2016 decision in which the California Supreme Court created a duty of care on the part of employers to household members of employees who brought asbestos home on their clothes, exposing non-employees.

But, unlike the asbestos line of cases, the California Supreme Court rejected such a theory: “although it is forseeable that an employer’s negligence in permitting workplace spread of COVID-19 will cause members of employees’ households to contract the disease, recognizing a duty of care to nonemployees in this context would impose an intolerable burden on employers and society in contravention of public policy.  These and other policy considerations lead to conclude that employers do not owe a tort-based duty to nonemployees to prevent the spread of COVID-19.”

In distinguishing Kesner, the Kuciemba Court reasoned that while the only likely source for an asbestos exposure would have been the employer’s premises, COVID-19 was highly contagious and almost impossible to spread, and infection sources would also vary depending on the level of diligence on the part of the employee.  “The line between an employer’s negligence and transmission of the virus to household members is thus not as direct as in the asbestos context.”

One key factor in the Supreme Court’s decision appears to be the policy consideration weighing against finding liability on the part of the employer.  However, the Court left the tort liability door slightly cracked, rather than slammed shut: “In doing so, we are mindful that social conditions surrounding COVID-19, much like the virus itself, have evolved a great deal since the start of the pandemic, and these changes are likely to continue.  We acknowledge that the calculus might well be different in the future.

So, while the current position of the California Supreme Court appears to be that no duty exists on the part of the employer to the household members of the employee in prevent COVID-19 exposure, if COVID-19 continues to plague us in 5 years, will some enterprising plaintiff’s attorney run the gauntlet again?

Getting to the Supreme Court is expensive and time consuming.  Hopefully, the little opening left by the Kuciemba court will not be enough to prompt the plaintiff’s bar to try again.  In the meantime, your humble blogger will be stopping by See’s Candies to pick up some cherries in chocolate to celebrate this result.

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About those TTD Overpayments

July 7th, 2023 No comments

And it’s Friday again, dear readers!  We made it through yet another week and yet another weekend.  So what can your humble blogger do to send you on your way into the embrace of Saturday and Sunday?  Why not a blog post about TTD overpayment credit?

Unfortunately, there is typically a delay between applicant being permanent and stationary and defendant being advised of this fact.  So, when applicant attends a QME examination and a report does not issue until 30 days later, it’s fairly typical for the defendant to continue paying TTD for those 30 days.

What’s more, even when the report is received, it is not atypical for it take time to review and process the report and take the necessary actions.  So, if applicant was found P&S at a June 1, 2023 examination, but the report was not signed and served until July 1, 2023, and not reviewed by the defense attorney or the adjuster until July 5, 2023, TD could well have been paid for that entire period.

The recent panel decision of Newkirk v. Regents of University of California had just such a situation.  Defendant filed a petition for TTD overpayment credit in the amount of $6,587.79.  The WCJ awarded this credit and applicant appealed, which the WCAB rejected.  Just as an aside, dear readers, Mr. Newkirk received two separate awards of 34% PD each related to two specific dates of injury. 

There may be a restaurant somewhere, dear readers, in which the hosts have nailed slabs of grilled beef to the vaulted ceiling.  That would be a situation where the “stakes steaks are high” and the Newkirk case probably would not be. 

No, this isn’t a case about 100% PD, but it’s still an excellent panel decision to read as the WCAB lays out situations in which awarding TTD credit against PD benefits is appropriate, and cases in which it is not.  For example, the Newkirk panel made repeated reference that when a TTD overpayment credit “would have totally exhausted the applicant’s permanent disability indemnity” such an award may be inappropriate. 

Other factors the panel decision considered were the cause of the overpayment (defendant’s inadvertence, applicant’s calculated actions, or neither).  In the Newkirk case, it was truly neither. 

Your humble blogger is happy the defense was awarded a TTD overpayment in this case, of course, but let’s look at the downsides.  The time of the WCJ and the WCAB was taken up by this dispute, both applicant and defense counsel invested time and energy to this issue, and, of course, there are the monetary costs involved.  Presumably, if defendant had known applicant is P&S on the date of the exam, it would have stopped TD payments, started PDAs, and this issue would not have existed at all. 

Surely, there must be some way for the QME to provide a “check-the-box” cover page to the parties on the date of the exam on such issues!  Treating physicians have no difficulty providing a work status/work restrictions slip to applicant and defendant on the date of the appointment, why not the same for a QME on such issues?

Perhaps the next round of “reforms” or new regulations pertaining to QME should include directions with a 24-48 hour requirement to provide a cover page to the parties?  Such litigation could be avoided, no doubt.

Have a great weekend!

AB133 to Extend Remote Appearances

July 5th, 2023 2 comments

Welcome back from the holiday, dear readers!

Your humble blogger has made no secret of his support for remote proceedings for court appearances.  Hearings conducted remotely have the general effect of reducing transmission of diseases, whether COVID19 or the common cold and everything in between.

By allowing for remote hearings, the court system further reduces the burden and costs of litigation by avoiding hours spent on the road.  It also allows for fewer continuances requested due to calendar conflicts – your humble blogger can attend an MSC before the Salinas WCAB and the Santa Rosa WCAB in the same morning, without having to physically travel to either.  Certainly, employers and insurers have welcomed the reduced bills from their defense attorneys where travel is no longer a line item.

While we still attend some trials (and, for some reason, walkthroughs) in person, the more we shift to remote proceedings the more efficient the system becomes, lessening burdens on the parties and expediting hearings and resolutions.

In a bizarre twist to the norm, California appears to be doing something good for a change!  AB133 would extend the authorization to appear at court proceedings in most instances remotely until January 1, 2026.  AB133 was approved by the Assembly on March 23, 2023, and is now before the California Senate. A very similar bill, SB133, was signed by Governor Newsom on June 30, 2023.

Hopefully, this is the start of a growing trend, and we can expect to see an increase in the WCAB’s use of remote technology in our proceedings. 

What do you think, dear readers?  Are you happy with ZOOM depositions and telephonic hearings?  Or would you like to go back to the good old days before the Pandemic?

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Happy Independence Day!

July 4th, 2023 No comments

To my dear, beloved readers – your humble blogger wishes you a very happy Independence Day! May the fireworks you see be bright and mesmerizing; may the company you share be refreshing to your spirits; and, most of all, may today be yet another reminder that there is more to life than Workers’ Compensation litigation.

From the deepest corners of your humble blogger’s cold, hard, defense-attorney heart – Happy Independence Day!

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What’s on YOUR Grill Tomorrow?

July 3rd, 2023 No comments

Happy Monday, dear readers!

I know everyone is getting ready to celebrate Independence day tomorrow, and most of us are off to turn July 4th into a 4-day weekend.  Your humble blogger is, of course, dutifully at his post!

Traditional July 4th celebrations include BBQ, so let your humble blogger ask you – what are you grilling? 

Well, the USDA has approved the sale of lab grown meat harvested from animal cells, so how about one of those burgers or hot dogs?  Why is being brought to your attention by the humblest of bloggers?  Well because assuming lab grown meat can pass both the taste test and the market test, we can expect to see yet another impact on California’s workers’ compensation domain.

Aside from varying opinions on whether killing animals for food is moral or not, the process of animals being raised from a twinkle in a rooster’s eye to a sizzling chicken breast on a plate is one that involves a tremendous amount of labor, often with resulting injuries.

Farming the feed, raising the animals, and processing the animals for packaging and delivery constitutes a substantial amount of California’s employees.  Data from EDD shows that the there were an average of 420,825 jobs per month in the agricultural field in 2022, of a total of 18.4 million employees.  How will those 420k jobs be affected when the industry shifts to producing more and more meat in labs?  How will the trucking industry be affected? The packaging industry?

Assuming consumers gradually shift to lab grown meat and demand for traditional, agriculture-based meat production declines, the “typical” injuries we can expect to see will shift as well. 

Your humble blogger has never tried lab grown meat, and will likely be grilling the old fashioned type tomorrow.  But, as you take your first bite of the BBQ’s yield tomorrow, while not celebrating our independence as a nation, take a moment to consider how technological advances are likely to impact the industry in which we spend so much of our time and energy.  Perhaps this is just another indication that we can expect volume in our field and the costs of workers compensation to decrease?

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Blast from the Past: Stray Bullets Compensable?

June 28th, 2023 No comments

Happy Wednesday, dear readers!

The internets are certainly abuzz with the recent en banc decision regarding vocational rehabilitation in the Nunes decision.  But how about something to lighten the mood?

Time for a somewhat literal blast from the past!  This one is from September of 1947, the case of McPhail v. The Austin Company.

Applicant was struck by a stray bullet under the armpit while working as a carpenter in Sacramento.  The source of the bullet was never discovered.  There was no evidence of any bad feelings among the employees or hostility, but there was evidence that there were gun raffles over the last few months for the employees.  Surprisingly, regular gun raffles are rarely advertised as benefits offered to employees now adays

The commission held that the injury was AOE/COE.

Now, had applicant died as a result of the injury, likely the Mysterious Death Presumption would have applied.  After all, if the employee’s death occurs at or near the place of employment, then an inference of compensability is typically found unless there is some other, nonindustrial explanation for the death.

But if the applicant did not die, and could be a witness regarding the facts, there is no reason to apply the mysterious death doctrine (or the MDD as the kids say).

Picture a carpenter working on the third floor of a building when he is suddenly struck by a bullet, and he lives to tell the tale.  No likely suspects, no explanations.  How are we to determine whether this is an industrial injury?  The bullet could have struck a passerby instead just as easily, no?

For example, in the case of Rodgers v. WCAB, an employee robbed in the employer’s parking lot on her way back from a lunch-break-bank-trip was ordered to take nothing as the court reasoned that the injury was not industrial because the cause of the robbery was formed independent of anything having to do with work.  By contrast, in the case of Parks v. WCAB, applicant was attacked very close to the employer-provided parking lot as she was boxed in by children crossing the street and other cars behind her.  The WCAB held that children crossing in that area presented a “special risk” which was not visited on the general public.

So are stray bullets a risk to which the general public is exposed or was there something special about working as a carpenter on the third floor of a building?  Your humble blogger urges his readers not to conduct any studies involving shooting randomly in the air to see how many bullets strike people at work vs. people walking on the street.  This question is truly best left in the realm of theory and rhetoric.

Could the employer have conducted a study of stray bullet victims in the 5 years prior to the DOI to see how often random pedestrians and drivers are struck as opposed to carpenters on the third floor of a building?  Try googling “stray bullet” and “Oakland” as just one example.

What are your thoughts, dear readers?

Farewell to “Vocational Apportionment!” WCAB En Banc Nunes Decision

June 26th, 2023 No comments

Happy Monday, dear readers!

The WCAB has issued an en banc  decision in the matter of Nunes v. State of California, Dept. of Motor Vehicles and it’s a doozy! 

In a perfect world, we’d have a hard-and-fast rule from the WCAB that if there is apportionment to non-industrial or prior industrial factors, vocational rehabilitation cannot be used to rebut the PDRS.  Alas, it is not to be.  So, let’s dive into what we do have!

There are a lot of details to this case, so if you’re like to do what the kids call “tl;dr”, here’s the skinny: “vocational apportionment” has something in common with Santa Clause and the Easter Bunny as all three of them are figments of the imagination of some of our colleagues.  Apportionment analysis made by a vocational rehabilitation expert must follow the rules set out for medical apportionment, and the fact that previously asymptomatic conditions failed to manifest in work restrictions or reduced wages is irrelevant. 

To rebut the PDRS and show permanent total disability due to the applicant not being amenable to rehabilitation, the voc-rehab expert must show that one industrial injury was sufficient to render applicant unable to participate in the open labor market.

Now for the details!

In the Nunes case, applicant sustained two admitted injuries working for the same defendant: one to her neck, upper extremities, and left shoulder; the other to her bilateral upper extremities as a CT.  The AME found 100% industrial causation for the left shoulder, 60% industrial causation for the cervical spine, and 40% industrial causation for the carpal tunnel CT.  The AME further opined that she did not expect applicant to be employable in the open-labor market, due to her pain and function.

Applicant’s voc-rehab expert concluded applicant “sustained a 100 percent loss of access to her open labor market.”  He deemed her “not amenable” to vocational rehabilitation.  The expert, though, distinguished “medical apportionment” from “vocational apportionment,” noting that her non-industrial factors have no impact on her earning capacity, and that the AME’s permanent work restrictions “have rendered Ms. Nunes 100 percent permanently and totally disabled” and that this would be the case solely on her left shoulder and cervical spine complaints. 

By contrast, the defense voc-rehab expert traced the AME’s apportionment to conclude that at least 10% “vocational apportionment” to non-industrial medical factors existed in this case.  After a trial, the WCJ found 100% permanent disability based on applicant’s voc-rehab expert’s opinions.

The WCAB had several rulings in response to defendant’s petition for reconsideration.  First, it ruled that there is no such thing as “vocational apportionment.”  A reporting physician is authorized and required, under Labor Code section 4663, to make an apportionment determination for other factors causing permanent disability (non-industrial, prior industrial, and post-injury factors included).  Likewise, the en banc opinion holds, “in order to constitute substantial medical evidence, a vocational expert’s opinion must detail the history and evidence in support of its conclusions, as well as ‘how and why’ any specific condition or factor is causing permanent disability.”

The WCAB concluded that vocational evidence is relevant to the issue of permanent disability and can be used to rebut a scheduled rating by establishing “that an injured worker is not feasible for vocational retraining.”

Finally, the WCAB held that “in order to constitute substantial evidence, vocational reporting must consider medical apportionment.”  The WCAB continued that “factors of apportionment must be carefully considered, even in cases where an injured worker is permanently and totally disabled as a result of an inability to participate in vocational retraining.”  However, required apportionment analysis “does not permit reliance on facts offered in support of a competing theory of apportionment.” 

Providing general guidance, the WCAB offered this guidance: “an analysis of whether there are valid sources of apportionment is still required even when applicant is deemed not feasible for vocational retraining and is permanently and totally disabled as a result.  In such cases, the WCJ must determine whether the cause of the permanent and total disability includes nonindustrial or prior industrial factors, or whether the permanent disability reflected in applicant’s inability to meaningfully participate in vocational retraining arises solely out of the current industrial injury.”

Now, dear readers, before we get to the end of the story and the result, that last line has your humble blogger checking under his bed for monsters.  Did the WCAB just give vocational rehabilitation experts the boilerplate language they must now paste into every report to avoid apportionment?  If a voc-rehab expert can justify a theory that applicant is rendered unamenable to rehabilitation solely from work restrictions on a body part that is not subject to apportionment, is that enough to reach 100%?

The WCAB concluded that based on the opinions of both voc-rehab experts and the AME, “applicant’s inability to participate on vocational retraining renders her permanently and totally disabled.”  However, what about the apportionment issue?

The WCAB held that because applicant’s vocational rehabilitation expert asserted that “applicant’s prior award of disability and degenerative changes need not be considered, because they did not manifest in an inability to perform pre-injury job functions or reduced earning capacity” the voc-rehab expert failed to account for disability that formerly could not have been apportioned, such as asymptomatic prior conditions and retroactive prophylactic work preclusions. 

The WCAB then rejected both vocational rehabilitation expert opinions (applicant’s for not properly analyzing apportionment; defendant’s for being speculative as to the extent of apportionment).  The matter was returned to the trial judge for further development of the record, with leave granted to both parties to obtain supplemental reporting and for the WCJ to prepare a record addressing cause of permanent disability as between the two dates of injury.

So, what do we take away from the Nunes case?

Well, for starters, all of that nonsense about “vocational apportionment” is now moot.  The fact that a prior condition or injury had no measurable impact of wages or occupation does not impact the case at all.  Further, we have to hone in on solid evidence of apportionment.  The injuries that, by themselves, render an employee permanently and totally disabled are fairly rare, and most of them already presume permanent total disability under Labor Code section 4662.  While it’s certainly possible to be totally precluded from the open labor market from a single injury, odds are high that it is a combination of factors, only one of which is the industrial injury.

While taking Nunes on the attack against applicant’s voc rehab experts, we also have to make sure defense voc-rehab experts are not relying on the now curtailed theory of vocational apportionment, and to clearly explain the basis for any apportionment of market preclusion. 

I know this is a long blog post, dear readers, and those of you who have stuck with it this far get a lovely imaginary gold star from your humble blogger.

What are your thoughts on the Nunes case?  Drop me an email or a comment at your leisure!

What’s so Special about 7/1?

June 21st, 2023 No comments

Happy Wednesday, dear readers!

I know how much you like the humble blogger’s pop quizzes, and you know how much your humble blogger loves to make his readers happy, so what else could we start today’s blog post with other than a pop quiz?

What’s significant about July 1, 2023?  If you said it is the first day of the second half of the year, you are correct.  If you say it is day two of a five-day weekend ending on Independence Day, then I envy your working conditions.  If you say it’s time to check our TTD rates, then you have won yourself the nodding approval of the humble blogger.

That’s right! Come July 1, 2023, minimum wage increases in various counties and cities in California!  Sheppard Mullin has a really good breakdown on which counties and cities are affected and by how much.

So, what should you be doing in anticipation of July 1, 2023?  Well, for starters, check if the county or city where your injured worker worked has a minimum wage increase going into effect on 7/1/23.  If it does, check if your injured worker receiving TD was earning above the new minimum wage.  Finally, if your injured worker was earning less than the new minimum wage prior to the date of injury, you may want to recalculate the TTD rate using the new minimum wage.  One easy way to do that is to divide the new minimum wage by the hourly rate the applicant was earning prior to the DOI, then multiply the resulting number by the TTD rate.

So, if applicant was previously earning $15.75 per hour in Alameda, and would now be entitled to $16.52 per hour, $16.52 (new minimum wage) / $15.75 (old minimum wage) = 1.05.  You would then multiply the previous TTD rate by 1.05 to get the new TTD rate reflecting the increased minimum wage. 

As if you didn’t have enough to do or worry about…

Straight on till Friday, dear readers!