Forklifting Injuries? A thing of the past…

August 28th, 2017 No comments

Forklifts.  Normally, your humble blogger uses the word to pretend he’s doing exercises when he’s really just eating dinner.  But, outside of the world of puns and overindulgence, forklifts (and their less useful cousins, pallet jacks) are incredibly useful but also incredibly dangerous devices for warehouses and their employees.

If you run a search on Lexis or WorkCompCentral, forklift injuries are plenty and varied.  There are cumulative traumas from extended periods climbing in and out of them.  There are trip-and-fall injuries.  There are cases where the forklift fails its human worker and tips or drops something heavy on a co-worker.

One of the remedies to this problem is making tech news – the Seegrid GP8k is an autonomous forklift that can “approach a pallet, lift it, transport it safely, and put it where it needs to go.”

But avoiding the cost of industrial injury isn’t the only benefit – this particular instance of automation comes with fewer wages paid, fewer pieces of merchandise damages, more efficiency in the warehouse.

Your humble blogger submits to his beloved readers that California’s policies, including but not limited to workers’ compensation benefits, continues to make automation attractive.

Now, your humble blogger will occasionally take abuse form the more fiery members of the applicants’ bar and their cheerleaders because of this position.  Do I want injured workers to suffer? To starve?  To do dangerous jobs and bear the risks themselves?

California often deludes itself into thinking that it is playing the role of Robin Hood – lightening the load of those fat-cat employers and insurers and giving the working man a reasonable living.  The reality is that California steadily robs future workers of their jobs.

Certainly, accidents can happen to even the most careful and diligent employees, but workers’ compensation benefits are also provided to workers who are careless, reckless, inebriated, or deliberately trying to play the “blue collar lotto” to get benefits.  Before you start with the defenses of Labor Code section 3600, remember who bears the burden of proof.  Most defense attorneys can tell you about that one case he or she had where the injured worker was high, drunk, or suicidal and the WCAB awarded benefits anyways.

With one rare exception, robots and machines tend not to be suicidal.

Anywho, dear readers, it looks like automation of the workforce continues apace, so the ills of the workers’ compensation system, though frustrating and unfair, might be relatively short-lived.  Are you ready?

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Deported Applicant Allowed to Testify via iPhone

August 23rd, 2017 No comments

Alrighty, dear readers, your humble blogger has a pop quiz for you.

Why do we have live testimony?  Why can’t all witnesses call/Skype/Facetime in to trial or a hearing?

Most of the WCABs venues have some form of wi-fi available, and almost everyone is sporting a smart phone nowadays.

We already saw in the Simmons case that an adjuster was allowed to appear via Skype and in the Alvarez case, an applicant was allowed to testify via Skype at his own trial after being deported to Mexico.

Recently, the WCAB allowed a deported illegal alien applicant to testify at his own trial via a 4-inch iPhone screen.

deported testify

In the case of Vargas v. Becker Construction, a recent panel decision, the WCAB did not disturb the WCJ’s allowing of a deported applicant to testify by iPhone.  Your humble blogger is agreeable to the fact that we should avoid “gotchya” litigation in workers’ compensation matters.  However, if credibility is in question, a WCJ needs to be able to observe applicant testify.  Additionally, the WCJ should be able to have certainty that no one in the room is feeding answers or responses to the witness from behind the iPhone transmitting the testimony.

Practically speaking, this might be addressed by having the injured worker sit in front of floor-to-ceiling mirrors so that the trier of fact can confirm no one else is in the room.  But the small screen of the iPhone presents its own problem – how is one to observe credibility on so small a screen, especially if the rest of the hearing room is to observe it as well?

Personally, if the world finally lost its mind and entrusted your humble blogger with a spot on the bench, I would think a phone is too small a device upon which to observe a witness’s testimony (and determine credibility).

It is not clear what the proper course of action is – do the federal and state constitutions’ guarantees of due process (including the ability to present and cross-examine witnesses) outweigh California’s interest in providing benefits to workers that for one reason or another are not present in the country (or state)?

What do you think, dear readers?  Would defendants be willing to have their adjusters and employer witnesses avoid being dragged in from out-of-state if it meant that an applicant could prosecute his or her case from across the border?  As much as your humble blogger is a fan of technology, somehow testimony over a hand-held iPhone screen doesn’t seem to meet the standard of decorum and substance of an in-person trial.

 

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IC Defense Fails For Deceased Truck Driver Claim

August 21st, 2017 No comments

And a happy Monday to you, dear readers!

Are you going to watch the eclipse today?  Remember to wear your glasses…

Reform after reform; legislative session after legislative session; trial after trial – the workers’ compensation community has the same issue come up over and over again: employee vs. independent contractor.  And, to date, the controlling case on this matter is Borello, in which the California Supreme Court set out several factors to consider in determining whether the injured worker was an employee or an independent contractor.

Recently, the Court of Appeal denied review of the WCAB’s confirmation that a deceased truck driver was an employee, rather than an independent contractor, in the claim for death benefits brought by his widow.

The case is that of Schnore v. Progress Rail Services.  Therein, applicant’s late husband suffered a fatal cardiac arrhythmia while driving defendant’s truck.  Defendant claimed that the deceased was an independent contractor rather than an employee, so no liability was to be had.

By contrast, applicant claimed her husband was an employee and was entitled to workers’ compensation benefits.  At trial, the WCJ found the deceased to have been an employee, noting in particular that because defendant set the points at which the drivers pick up and drop off the freight, there is sufficient control to suggest employment.  The WCJ also weighed the fact that the trailer pulled by the truck driven by the deceased was specialized for the cargo (wheels) which suggested specialization of instrumentalities favoring employment.

The WCAB and the COA both declined to disturb the WCJ’s ruling.

Just a thought about this – it seems to be getting harder and harder to prove independent contractor status.  The longer the relationship, the greater the extent of interaction between the parties, the more likely the WCAB will be to find the relationship one of employment rather than independent contractor status.

For that reason, parties should be prepared for the possibility that the independent contractor defense will fail.  Although this may be a valid reason to deny the claim initially, a thorough investigation should be made and every effort should be extended to defend and mitigate the claim itself.

In this case, it appears the medical-legal process found industrial causation for the worker’s death.  Accordingly, the independent contractor defense is a bit of a longshot in California.

On the bright side, there’s always the possibility of settlement…

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COA: One Possible Cause does NOT Mean One of the Causes

July 26th, 2017 No comments

Alright, dear readers – it’s Wednesday.  You’ve made it this far, let’s keep going!

Your humble blogger does not like to sugar-coat reality.  I’ve explained to my children repeatedly, with a detailed and persuasive slide-show, that there is no Santa Clause, that their father likely has a favorite child (although this position is always in flux), and, despite the occasional flare of reason or justice, California Workers’ Compensation is where businesses go to be fleeced and devoured.

So, it is with great reluctance, that I bring you yet another story of reason and the defense community ultimately prevailing in yet another unpublished decision coming from the Court of Appeal.

The case is that of County of Sacramento v. WCAB, McCartney.  The facts are relatively simple: applicant, a peace officer, developed a skin condition which he attributed to his time in the sun on a motorcycle as a deputy sheriff.  The condition, actinic keratosis, may or may not be a precursor to skin cancer.

The QME, a dermatologist, had found that it was not more likely than not that applicant’s time in the sun as a deputy sheriff was the cause of the actinic keratosis.  Applicant has spent time in southern California as a surfer, and also spent his off-work time engaged in out-door activities, exercise, and golf.  The QME advised that there was insufficient factual and medical evidence to support a conclusion that it was on-the-job sun exposure that caused the condition.  The QME also acknowledged that some keratosis eventually become skin cancer, but applicant did not have skin cancer as yet.

When pressed by applicant’s counsel at deposition, the QME responded that the medical literature simply did not establish which of the many factors (recreational sun-time; pre-work sun-time; at-work sun-time; aging, pale skin, immune system) was the tipping point.  It wasn’t that work was a small contributor, it was that there was no way of knowing which of the many factor, if any, were the cause of his condition.

The result of the trial was a finding that there was no scientific basis upon which to conclude that the industrial exposure caused the condition.  So, applicant escalated matters to the WCAB, which reversed!  Citing South Coast Framing, the WCAB found that the QME had found that the on-the-job sun exposure contributed to the condition, but could not conclude the extent of the contribution.

However, the County of Sacramento, having caught the scent of a “take nothing,” was not willing to so easily give up the chase.

Eventually, the case did land on the desk of the Court of Appeal, which offered a different interpretation of the record, and provided a key form of distinguishing the South Coast Framing opinion.  In South Coast Framing, as the Court of Appeal explained, applicant was taking three drugs, one for an industrial condition, which the QME in that case concluded had a 0.01% – 20% causation.  By contrast, in the instant case, the QME concluded that there were many possible causes of the condition, and one of them was industrial.

My favorite line from the (sadly) unpublished opinion?  “The QME never acknowledged that there was a causative role of unknown degree arising out of [applicant’s] employment.  Rather, she took great pains to explain (repeatedly) that it was not possible to attribute the cause of [applicant’s] condition to any particular period of exposure to the sun, and therefore it was nothing more than speculation to identify the work-related exposure as a contributing cause.  Just because the effects of sun exposure are cumulative does not mean [applicant could not have reached a toxic dose before coming to work for the county…” (emphasis in original).

Though severely limited in its application, the McCartney opinion does give the defense community a few things to work with.  First off, there’s a clear distinction between the facts in South Coast Framing, which provided a plethora of causes of which industrial was a small amount, but sufficient to make the claim compensable.

But here, where there are many possible causes, applicant bears the burden of proving that, more likely than not, the industrial exposure is the cause, rather than one of many possible causes.

Additionally, unlike a dispute over some small amount of medical treatment, it might actually be worthwhile to take this issue up to the Court of Appeal on other cases.  Even if your case ultimately results in an unpublished decision, this opinion reflects at least some level of receptive disposition on the part of the Court of Appeal for such a theory.  The difference between industrial and non-industrial can be a vast fortune.

Alright, dear readers, back to work!

 

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COA (again) Holds That IMR Need Not Be Timely to be Valid

July 24th, 2017 No comments

Happy Monday, dear readers!

Your humble blogger knows full well that he is, far too often, charged with bringing bad news to his beloved workers’ compensation community.  Well, remember, dear readers, that even the crocodile shouldn’t be blamed for the shade in the swamp.

With that in mind, I have some good though belated news to report to you.  Sometimes, confirmation of what we all knew can be just as pleasant, even if not surprising.  The Court of Appeal, in an unpublished decision, ruled that IMR need not be timely to be valid.  The case, of course, is Baker v. WCAB/Sierra Pacific Fleet Services, and, though it is unpublished, it is still of considerable benefit to the defense community.

The facts are pretty simple – applicant sustained an admitted injury and sought medical treatment.  The medical treatment request went through UR, which recommended against certifying the request.  The appeal to IMR followed and, with IMR upholding the UR denial, applicant challenged IMR’s determination because it was not made within 30 days of the appeal.

The WCJ, WCAB, and then the Court of Appeal all agreed that, as the 30 day timeline was directory and not mandatory, so the IMR stood.

This isn’t anything new, of course.  The Court of Appeal in Ramirez held to the same conclusion.

So what’s so great about an unpublished case?  After all, we can’t cite an unpublished case, right?

Well, we’ve had Stevens and Margaris  tell us that IMR is constitutional and speculate that a timely IMR determination is not necessary to be binding.  We’ve had Ramirez and now Baker tell us for certain that IMR need not be timely to be valid and binding.

In other words, the Courts of Appeal have sent a pretty clear message to every WCJ and WCAB commissioner in the land of, as one WCJ would say “a preview of coming attractions.”

Let’s look at big picture, for a moment – the disputed medical treatment in Baker? Pennsaid and Norco.  Drugs.  We’re not talking a whole lot of money in the grand scheme of things.  In fact, Mr. Baker’s attorney might have had more luck paying for these drugs out of pocket rather than pouring in the time and money to go to the Court of Appeal.  But it wasn’t about the Norco or the Pennsaid – it was about undermining IMR.

IMR is a wonderful thing – applicant attorneys used to be able to over-inflate future medical valuation by threatening to take every UR determination to the QME or AME, and run up the bill for the defense.  No longer – now you’re looking at a few hundred dollars every year on IMR – hardly worth the applicant attorney’s effort.

So far, so good, dear readers – have a great weekend!

 

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Teacher Getting Sick from Students at School is Compensable?

July 10th, 2017 No comments

Happy Monday, dear readers!

I hope you are finding this morning one of good health and cheer.  As an attorney, I feel full of life and health when I am at my post, denying benefits and cheating death avoiding liability for my files, but as a father, I’m well aware that being around little kids in a schoolroom setting is just asking for exposure to every disease known to man.

Kids get sick when they go to school, and since parents can’t always afford to miss time from work, kids go to school even when sick and bring the germs with them – I assume you’ve heard of “show and tell.”

Well, what happens when a teacher gets sick?  After all, even though the students aren’t employees, the teachers certainly are!  Are common illnesses that one might catch on the bus, at the supermarket, on the street, but ALSO in the classroom a compensable injury?

Well, consider the case of Grawe  v. Culver City Unified School District.  Therein, defendant sought reconsideration of a finding of 82% permanent disability sustained by a school teacher in the form of hypertension and psoriatic arthritis.  The AME found that “it was medically probable that applicant developed viral cardiomyopathy as a result of contracting viral respiratory tract infections ‘because of being exposed to communicable viruses from her students.’”  The viral illness, in turn, triggered applicant’s hypertension.

So, the ruling was that, more likely than not, applicant did not catch a cold on the street, on the bus, at the bank, or at home, but at school from her students.  It was further concluded that this illness triggering her hypertension resulted in a compensable claim.

The reasoning that drove this conclusion was the WCJ’s reliance on the LaTourette case, in which the California Supreme Court found that “if the employment subjects the employee to an increased risk compared to that of the general public” then the danger, even if it does not arise out of the employment, may be compensable.  Just so we’re clear, the general public which has their children attending these schools and brining home any communicable diseases is somehow not exposed as the teacher in the school, right?

As such, the WCAB denied defendant’s petition for reconsideration and the Court of Appeal denied Review.  Readers, please compare this with the case of Reff v. WCAB, where the opposite conclusion was reached.

Now, if this case were submitted to Justice of the Peace, Lord of Fairness, and Arbiter of Disputes Grinberg (commonly known as the Humble Blogger), I would have found this to be non-industrial.  The teacher simply did not have any sort of exposure that the general public didn’t have as well.  We’re not talking about traveling through areas known to trigger Valley Fever – we’re talking about catching an illness brought to school by a student from home (where the student’s family and friends were likewise exposed).  But, unfortunately, no one asks pool ol’ Greg for his opinion…

Fortunately, this opinion is not binding, so perhaps we in the defense community can continue the fight!

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Hikida – No Apportionment for You! Not yours!

July 5th, 2017 1 comment

Well, dear readers, I wish I had better news for you.

I know you guys are real troopers – despite overeating at yesterday’s BBQs and receiving treatments at the local hospital’s burn unit for those illegal fireworks that I SPECIFICALLY TOLD YOU NOT TO PLAY WITH, you still made it to work and checked your e-mail for today’s blog post.

Well, if you were hoping that I’d have something to lift your spirits, prepare to get burned (again?)

What I’ve got for you is Hikida, a Court of Appeal decision issued on June 22, 2017, regrettably published and citeable.

The facts are pretty simple and straight forward – applicant was  engaged in clerical work for defendant for over 25 years, and developed carpal tunnel syndrome.  The condition ultimately led applicant to undergo carpal tunnel syndrome, from which she developed complex regional pain syndrome, which according to the AME, rendered her permanently and totally disabled, but that 10% of her carpal tunnel syndrome was caused by non-industrial factors.

Although the WCJ was inclined to provide apportionment to non-industrial causes, applicant argued to the WCJ, the WCAB, and the Court of Appeal that based on the other injured body parts, and the presumption of Labor Code section 4662(a)(2) (“loss of both hands or the use thereof”) that applicant should be found permanently and totally disabled.

The Court of Appeal reasoned that “the disability arising from [applicant’s] carpal tunnel syndrome was apportionable between industrial and non-industrial causes.  However, [applicant’s] permanent total disability was caused not by her carpal tunnel condition, but by the CRPS resulting from the medical treatment her employer-provided.”

The Court of Appeal concluded that the employer is responsible “for both the medical treatment and any disability arising directly from unsuccessful medical intervention, without apportionment.”

From the opinion itself, it does not appear there is an allegation of medical malpractice, negligence, or some sort of defective durable medical equipment.  Sometimes surgeries don’t go well, and this was one of those times.

The net result of this opinion is that documented non-industrial causes of applicant’s permanent disability are wiped out by additional impairment resulting from medical treatment with poor results.  While the applicants’ bar might be celebrating, this defense attorney is certainly hoping for intervention from a higher authority… No, no, dear readers, not THAT much higher – here’s hoping that this one goes up to the Supremes!

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Happy (Early) Independence Day!

July 3rd, 2017 No comments

Happy Monday, dear readers!

Your humble blogger hopes that you have today off as a “gimme” holiday and that you’re ready to celebrate Independence Day, or, as the kids on the internet are calling it, “Brexit 1776.”

Rest assured that your humble blogger is hard at work today, seeking to deny benefits and expedite case resolutions.  But, for those that are busy prepping their own fire-works displays, just a friendly reminder: in many counties and cities in California, private fireworks are illegal and enforcement is in full effect.

Aside from fighting the law (take it from me, dear readers, I fought the law once – and the law won!) fireworks tend to explode.  In fact, most things with the word “fire” in them tend to prompt additional caution (fire-fights, fire-ants, “Greg, you’re fired”) so please, please, please be careful.

Even if your work to-do list flashes between your eyes as the fireworks do their explosive job, odds are this will not be a compensable injury, so the indescribable pleasures of being an applicant in California’s workers’ compensation system will likely elude you.

In any case, your humble blogger hopes you have a safe and happy Independence Day – throw some tea in a bay, tell a person from England “you’re not the boss of me anymore!”, and BBQ to your heart’s delight.

Happy Independence Day!

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Supplemental Lien Declarations Due Tomorrow (Maybe)

June 30th, 2017 No comments

It’s Friday, dear readers… but not just any Friday.  Today is Friday June 30, 2017, which makes tomorrow, July 1, 2017… the effective date for Labor Code section 4903.05(c) (well, the part of it that counts for this blogpost, anyway).

Labor Code section 4903.05 requires lien claimants to file certain additional declarations, but for those lien claimants that had already filed their liens prior to January 1, 2017, the Labor Code afforded an additional 6 months to file a supplemental declaration.

Those liens that do not have this supplemental declaration as of July 1, 2017, shall be dismissed with prejudice by operation of law.

So, if you come in to the office next week and have any liens that do not have the supplemental declarations are required by Labor Code section 4903.05, the lien is to be dismissed by operation of law.

very-nice-great-j9n9bg

Now, here are some thoughts to keep in mind as you try to sweep away any non-conforming liens.

July 1, 2017, is a Saturday.  As we all know, California Code of Regulations section 10508 provides that “[i]f the last day for exercising or performing any right or duty to act or respond falls on a weekend, or on a holiday for which the offices of the Board are closed, the act or response may be performed or exercised upon the next business day.”

Possibly, lien claimants have until Monday, July 3, 2017, to file supplemental declarations.  So, perhaps it may be prudent to return from the July 4th Holiday on Wednesday and check the EAMS file then.

In any case, dear readers, if you’re taking a 4-day weekend, I hope you return from your revelry patriotic, safe, and ready to free yourselves from liens.

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2016 Ethics Reports Clears WCJs Who Approved Voucher-Less C&Rs

June 28th, 2017 No comments

Happy Wednesday, dear readers!

The Workers’ Compensation Ethics Advisory Committee recently posted its report on complaints from 2016.  As is expected, the vast majority of the complaints filed by were employees not represented by counsel.

There were two complaints in particular that seemed to echo what some WCJs have mentioned about supplemental job displacement benefit vouchers.

As by now we all know, SB-863 prohibits the settlement of an injured workers’ supplemental job displacement benefit voucher.  However, as was held in the panel decision of Beltran, there are cases in which no voucher is due, and the case should be settled without the voucher being provided.

In the ethics report, the two complaints were from (1) a Return-to-Work counsel, and (2) a represented applicant.  In both cases, the review of the facts concluded that there was no ethical violation, but one can easily understand and appreciate the chilling effect such a complaint has against a WCJ.

I can see a bitter return-to-work counselor lashing out in the face of dwindling income, but what about the represented injured worker?  If the attorney failed to advise of the effect of the C&R, why not pursue an ethics complaint against the attorney or file a malpractice claim?  If the attorney did advise the injured worker that there would be no voucher, why accept the settlement?

We can only hope that the applicant’s attorney did not encourage the injured worker to file an ethics complaint for approval of a settlement to which the injured worker, under advice of counsel, agreed.

Hopefully, the fact that, in both cases ethics committee found no violations will reassure WCJs that they approve a C&R that does not provide a voucher when the facts call for it.

In the meantime, practitioners should continue to draft settlement paperwork with care – the parties are not settling the voucher but, instead, are entering into settlement without determining whether or not the injured worker has the right to a voucher.

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