COA: Fraud Conviction Does Not Bar WC Benefits

November 13th, 2017 1 comment

Happy Monday, dear readers!

You know, there is this wonderful movie that is not very well-known.  It’s called Johnny Dangerously, and therein lies a wonderful quote by the titular character: “Remember kid, crime doesn’t pay… well, [as Mr. Dangerously climbs into his ill-gotten limousine] it paid a little.”

That seems to be the lesson in a recent Court of Appeal decision, regrettably published as of November 1, 2017: Ford v. WCAB.  The Court of Appeal ruled that despite a conviction for fraud, if an injured worker can establish compensable industrial injury independent of the fraud, he or she is still entitled to benefits.

Applicant crushed one of his fingers in a car door while working, and sought workers’ compensation benefits.  In 2008, he was diagnosed with complex regional pain syndrome by a neurologist.  An AME examined him in 2009 but applicant refused to submit to grip strength testing, and the AME noted that applicant would not cooperate in an exam of his left upper extremity.  When visiting his treating physician, applicant would wear a sling.

Now comes the fun part!

Surveillance caught applicant removing his sling after doctors’ visits and driving his car, using his left hand to open the door and steer.  He was even videotaped using his left hand to carry a bag of groceries, and on another occasion videotaped driving to an appliance store where he lifting a washing machine into the back of the truck he was driving!

After the DA investigated, charges were filed and ultimately plead guilty to violating Insurance Code section 19781.4 and was placed on probation and ordered to pay $9,000 in restitution.

However, as the criminal case proceeded so did the workers’ comp case, and, despite the videos, the AME concluded that applicant lost most of the function of his hand, reducing it to a claw-like appendage.  A WCJ relied on these conclusions to issue an award of 70% PD, and the WCAB denied reconsideration.  When the employer sought reconsideration, this decision followed.

I’ve spoken at length about this issue with applicants’ attorneys on numerous cases.  The position is almost always the same as the reasoning in this Court of Appeal decision: just because he lied or “exaggerated” his limitations doesn’t mean he wasn’t actually injured.

Well, here’s the problem with this line of thinking.  QME examinations are not conducted in silence.  The QME and the PTP ask questions, inquire as to subjective complaints, and assume cooperation and genuine effort during the exam.  Unless they are performing an autopsy, the doctor has to rely on the information provided by the patient/applicant.

Once you have been established as a liar – particularly when there is a conviction on the books – the credibility is shot.  Just about any physical exam or diagnosis is going to rely at least in part on the credibility of the patient, especially when it’s something like losing almost all use of the hand, rather than an objectively verifiable injury (such as a fracture or amputation).

A conviction for fraud should carry more weight in California than this case suggests it does.

So, while crime might not pay, in workers’ comp, it pays a little.

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Happy Veterans’ Day 2017!

November 10th, 2017 No comments

Hello dear readers, and happy (early) Veterans Day!

As you know, Veterans’ Day is normally celebrated on November 11 of every year, but when it falls on a Saturday (like this year) observance is usually the workday before or after it.

Today, the WCAB should be closed and, as November 10, 2017 is considered a state holiday (observation of Veterans Day) any duty or obligation that was due today (like the last day to file something, for example) should be extended to the next working day or Monday, November 13.  (See California Rules of Court 1.10(b)).

As always, your humble blogger will make this shameless plug for Fisher House Foundation, a charity that helps veterans’ families with housing while the family members visit injured veterans in the hospital.

Of interest, CharityNavigator.org gives Fisher House Foundation 4/4 stars for accountability and transparency, with 91.3% of its spending going to its programs and services rather than administrative costs.

Here’s hoping you have a restful and reflecting Veterans’ Day, whether at your post at work or enjoying the day off.

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DWC Suspends Another 21 Physicians

November 8th, 2017 No comments

Happy Wednesday, dear readers!

Quick question for you – what do you do when you’re forced to deal with a treating physician that you’d rather avoid?  If applicant’s counsel sends you a letter declaring Dr. Nick Riviera as the PTP, what do you?  Do you check your MPN? Good!

You know what else you should be doing?  You might consider checking out the suspended physicians list as well.  Unfortunately, the bulk of these are in Southern California, which doesn’t help us in the wild, untamed North very much.

The DWC just announced another 21 physicians suspended from participating in the workers’ comp system.  Your MPN website might not be keeping up, or your applicant might have escaped the MPN as it is.

Unfortunately, MPN standards as set out by regulation, sometimes make it difficult to comply, and some physicians that could find a healthy Olympic athlete totally and permanently disabled (within the four corners of the Guides, of course) get on the list out of necessity.

I know we can all think of a few doctors in our respective geographic area that somehow make it onto our MPNs but should really be riding shotgun to a PI lawyer in high-speed pursuit of an ambulance.

Perhaps if we keep a close eye on the DWC’s suspended physician list, we might get lucky in rejecting requests for treatment with physicians who only provide life support to an applicant’s case, rather than his health.

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Take Nothing at WCAB Equals Summary Judgement at Superior Court

November 6th, 2017 No comments

CORRECTION: Thanks to input from a gracious and kind reader, it appears that this case was ordered published.  Cite it with confidence!

Happy Monday, dear readers!

You know, the thing about unpublished decisions is that they are a double-edged sword.  Sometimes you’re grateful that they’re unpublished, and sometimes you resent it.

One recent unpublished opinion issued by the Court of Appeal in the case of Ly v. County of Fresno.

This is an interesting one, but in particular it is useful for those cases when an entity faces exposure from claims other than just workers compensation.

Three plaintiffs filed racial and national discrimination claims against the County of Fresno, along with workers’ compensation claims for psych injuries related to the discrimination.

So, miracle of miracles for the defense, the WCAB ruled that plaintiff/applicants’ complaints stemmed primarily from good faith personnel actions due to business necessity.

Two of the three plaintiffs filed petitions for reconsideration which were ultimately unsuccessful.

Well, with a ruling that the so-called discriminatory actions being found as “good faith, non-discriminatory personnel actions” by the WCAB, the defendant moved for summary judgement in the civil complaint, which was granted by the Superior Court Judge on the case.

On Appeal the Court of Appeal reminded the parties that claim preclusion applies if the decision of the former proceeding is final and on the merits, the present proceeding is on the same cause of action as the former proceeding, and the parties in both the former and present proceedings are the same.

This seems like something that would come up often enough in these cases.  The applicant’s attorney is probably thinking that workers’ comp is a stacked deck and the plaintiff will be able to stick the defense with all the discovery costs.

But it looks like the plan backfired, at least in the Ly case.  Perhaps the desk isn’t that stacked.

Sometimes employers elect to plant their heads deep, deep, deep into the sand and decline to actively cooperate with the workers’ comp case or the insurer’s efforts to mitigate the harm.  Great things can be accomplished with the employer and the adjuster (and don’t forget the defense attorney).

In this case, the defense got to pay workers’ comp rates to try their civil-court case.

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WCAB: Even with no PD, TD is Sufficient for Aggravation of Pre-Existing Injury

November 3rd, 2017 No comments

Happy Friday, dear readers!

Is that a new injury or just a flare-up?  An aggravation or an exacerbation?

A recent panel decision on this point just landed on the writ denied pages of workers’ comp history.

In Clark v. City of Los Angeles, applicant sustained increased symptoms, need for medical treatment, and need for temporary disability due to a temporary flare-up of a pre-existing chronic back issue.

However, defendant took the position that this was not a new injury, but JUST A FLARE-UP, which meant that there was no obligation to provide benefits such as medical care or TD.

The WCJ ruled in favor of applicant and the WCAB affirmed.

So what the heck happened?

Applicant was doing push ups as part of his physical for the police department, and hurt his back.  He exhausted his modified/light duty and resigned his employment.  In pursuing his claim, applicant was examined by an AME who ultimately found that this was NOT a new injury because his condition had improved so much that this could not have been a new injury.

With that opinion in hand, defendant proceeded boldly into trial and was likely surprised by this result.

So if applicant returned to baseline… how could the WCAB have found a new industrial injury?

The commissioners drew a distinction between permanent disability and a new injury.  Even if applicant’s new permanent disability was 0%, this was an incorrect basis upon which to find no new injury.  Because the contribution of work activities made applicant unable to work, this was a new injury.

Conceivably, an applicant can sustain an injury, miss time from work and need medical treatment, and then return to work with 0% PD and no work restrictions, discharged as cured, right?  So why can’t the same thing happen for a worsening of a pre-existing injury?

Defendants should be particularly aware of this for the sake of mitigating exposure on active claims.  Applicants can aggravate their existing injuries and thus allow a defendant on the hook for benefits from a prior claim to drag a new pocketbook to the negotiating table.  Even shifting 20% of the cost of future medical care onto another policy might be worth the few hours it takes a defense attorney to file the relevant paperwork.

In any case, dear readers, remember – a new injury isn’t just permanent disability, but time lost from work counts too!

Have a good weekend!

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Is Bulldozer Operator a Dangerous Job? Not for Long…

November 1st, 2017 No comments

Alright dear readers,

I hope you had a safe and fun Halloween.  Your humble blogger decided to take this opportunity to educate his kids about taxes by taking 45% of their candy while they were asleep.

Now that we’ve had our fun Halloween, let’s turn to something that really is scary for those of us who ply our trade and earn our daily bread in the workers’ comp world.

Crack open your 2005 rating schedules again, dear readers, and find page “3-4” where you might find the occupation “Bulldozer Operator” which is assigned occupation code 351.

There are a lot of dangerous things that can happen to bulldozer operators on the job, but if you search for relevant case-law on Lexis you’ll probably find a bunch of amputations and death cases.  In other words – pretty serious stuff!

Well, you can’t get hurt if you’re not working.

Built Robotics is pushing its new autonomous bulldozer.  It will allow a supervisor to control and plan out the work from a safe distance.  The bulldozer can work more than 8 hours per day, will never file for workers’ compensation, and doesn’t need a salary.

The most dangerous jobs are the most expensive and the first that make financial sense to replace with robotics and automation.

I’m not sure how much this robotic monstrosity will cost, but the next time a foreman sees a friend and co-worker hurt or the owner of a company sees his or her workers’ comp premiums spike, don’t you think the threshold for “reasonable expense” would go up?

Does our workers’ comp system still make sense when all the truly dangerous jobs are done by R2D2 and the Terminator?

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Happy Halloween 2017!

October 31st, 2017 No comments

Happy Halloween 2017, dear readers!  Want to hear a spooky story?  Applicant’s pre-existing  condition was slightly aggravated… and it was found compensable… LIFE PENSION…

Anywho, dear readers, just a friendly reminder, in light of tonight’s festivities:

  1.  There will be kids out there.  Some of them have determined to challenge Darwin to the death by wearing dark clothes and masks that limit their vision and then crossing the street at night.  Please be careful while driving!
  2. Bigger kids, the ones that never grow up, will mix alcohol and poor decision-making – look out for them too!
  3. Workers’ Compensation is scary enough already – if you want a movie tonight I suggest you watch Hocus Pocus!

Happy Halloween!

 

 

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Orange County Denies WC Benefits to Deputies Injured During Vegas Shooting

October 30th, 2017 No comments

On the night of October 1, 2017, a person who will not be named so as to avoid bringing more notoriety to a mass murderer,  opened fire on a crowd of concert goers in Las Vegas, Nevada.  It was a mass shooting in which 58 people were killed and over 500 were injured.

Among the crowd of concert goers was a number of off-duty Sheriff’s Deputies from Orange County, California.  These deputies quickly sprang into action, assisting with first aid, evacuation of concert goers, and guarding the perimeter as the confusion cleared and the crisis came under control of first-responders.

Without a doubt, the events of October 1, 2017 ranged from fatal for some, traumatic from others, and, of course, shocking the country as it watched.

Now, four of those Sheriff’s deputies have filed workers’ compensation claims in Orange County, seeking compensation benefits as a result of their exposure during the mass shooting, including psyche and physical injuries.  Fair warning, dear readers, the comments are nothing short of poison, so read them at your own peril.

Part of the issue here is, of course, policy – does the Orange County Sheriff’s Office want its deputies to spring into action as peace officers when they are not in California?  Would the same want Nevada’s visiting peace officers to spring into action and assist?

The other question is, of course, one of law.  Should a claim for injuries sustained by off-duty deputies outside of the state, let alone the county, be compensable?

Labor Code section 5305 provides for jurisdiction injuries sustained outside of California if the applicant is regularly employed in California.  Section 3600.5 provides the same if the injury is “arising out of and in the course of employment outside of” California.

Well, last week, Orange County denied the claims.  Citing Labor Code section 3600.2(a), “[w]henever any peace officer … is injured, dies, or is disabled from performing his duties … by reason of engaging in [your typical cop stuff] anywhere in this state … but is not at the time acting under the immediate direction of his employer …” he gets the WC benefits.  In other words, off duty cops in California are covered if they act as on-duty cops and sustain injury.

Orange County is taking the position that this statute excludes the same OUTSIDE of California.

As much as your humble blogger hates to admit it, these appear to be legitimate claims, although, of course, the question of nature and extent seems open still.  In reading this section, I would interpret 3600.2 to limit its application to clarify that off-duty cops get the same coverage as on-duty cops.  After all, injuries sustained outside of California by California employees while working abroad are still compensable.

We have provided WC benefits to those California employees injured on a film set in Hawaii, after all.  To interpret this statute as some sort of limitations appears to your humble blogger to be a stretch.  In fact, it seems pretty clearly worded to expand the scope of coverage rather than to limit it.  But perhaps we will see some new, very narrowly tailored, law come out of this situation.

Special thanks to Jeff for sending this story my way!

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WCAB: En Banc on Lien Declarations; Liens Revived!

October 27th, 2017 No comments

Happy Friday, dear readers!

In case you didn’t have enough about liens being summarily dismissed as discussed here, the WCAB has now issue an en banc opinion summarily ruling that any liens that were dismissed by operation of law because the necessary declarations were not filed will no longer be automatically dismissed.

Issuing one opinion for the all such petitions for reconsideration, titled Jose Guillermina Rodriguez v. Garden Plating Co, the WCAB ruled that those cases for which a Labor Code section 4903.05(c) declaration was filed after 5:00 p.m. on Friday, June 30, 2017 through 5:00 p.m. on Monday, July 3, 2017, will be heard by the appropriate trial judges to be considered if the declarations were filed timely.

The WCAB specifically stated that “we make no determination as to the timeliness of filing of such declarations (after 5 pm on 6/30/17 and before 5:00 p.m. on 7/3/17).

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From the looks of it, if you were celebrating the dismissal of any lien it’s time to put the cork back in the champagne bottle and get back to work (for those of you who are NOT defense attorneys or adjusters, make no mistake – there is no celebration when a lien gets dismissed, just a world-weary sigh and methodically moving on to the next case.  Did you really think your precious little liens merit sparkling wine?)

I think we can expect to see this issue revisited, as some WCJs will likely rule one way and some another.  Let’s keep our eyes peeled for some WCAB guidance on deadline filing.

Have a good weekend!

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Gov. Brown Vetoes AB 570; Apportionment of PD to Pregnancy Still Valid

October 25th, 2017 No comments

Happy Wednesday, dear readers!

Your humble blogger has the distinct pleasure of bringing you some good news.

Previously, I had written a bit about (and duly condemned) Assembly Bill 1643 which Governor Brown vetoed because it would have prohibited apportionment of permanent disability to certain events or factors, primarily pertaining to menopause and childbirth.

Well, Assembly Bill 570 (“No percentage of an apportionment in the case of a physical injury occurring on or after January 1, 2018, shall be based on pregnancy, childbirth, or other medical conditions related to pregnancy or childbirth”) would have had effectively the same result, and, fortunately for California, Governor Brown has vetoed this one as well.

In his veto message, Governor Brown wrote “I am vetoing this bill for the same reasons that I vetoed similar measures Assembly Bill 1643 in 2016 and Assembly Bill 305 in 2015.”  The message continued “[t]his measure would extend the scope of the workers’ compensation system well beyond what it is meant to do: compensate injured workers who suffer a work related injury.”

It’s the easiest thing in the world to call opponents of measures such as AB 570 “sexist” or bigoted, but don’t let you distract that from the true issue – money.  This is purely about redistributing money from employers and insurers to a certain class of workers and, more importantly, a certain class of attorneys.

That is why you see CAAA throw a temper tantrum over this veto (it includes the term “mansplaining”), because lower exposure means lower attorney fees.

Everyone involved knows that it is improper to require employers to compensate workers for conditions that not related to a work injury.

I may have my issues with Governor Brown, but he is absolutely right on this – employers should not be liable for everything under the sun, just for the permanent disability caused by work injuries (and medical care, TD, etc., of course).

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