WCDefenseCA

Happy Monday dear readers!

Your humble blogger is freshly returned from presenting at the NRRDA annual conference, dazzling horrified listeners with what makes California’s workers’ compensation system so unique… and so expensive.  The conference was fantastic from start to finish and I would urge each and every one of you, dear readers, to look into this wonderful organization and think about attending in the future.  Well, at least the defense folks and not the 3 applicant attorneys that frequent this most humble of blogs.

Well, enough with the plugs and let’s make with the blogging! 

Your humble blogger has been at this workers’ compensation thing for a while.  One of the frequent endeavors of applicant attorneys is to shift as much of the cost of doing business to defendants as possible.  For example, some applicant attorneys meet their clients for the first time at deposition, where they will be paid 5710 fees to review the case with their clients.  As 5710 fees include interpreter fees, applicant attorneys will wait until the defendant is paying for interpreter depo prep to first learn about the case.

This is far from all of the applicant bar, but this happens often enough where it’s not a rarity.

So, if an applicant attorney needs an interpreter to communicate with his or her client… what happens after the deposition?  Well, often enough, applicant attorneys will retain an interpreter to participate in discussion of settlement paperwork.  But, unlike the various regulations that entitle an applicant to an interpreter at deposition, medical appointments, and hearings, there’s no provision for an interpreter at defendant’s expense at a meeting between applicant and applicant’s counsel to go over settlement paperwork.

Interpreters will try to sneak a bill for these services in with the legitimate services, such as appearing at a hearing or a deposition.  When applicant attorneys “hire” interpreters for such services, it’s like they are walking into a bar and yelling “drinks for everyone! Who is buying?”

So, let’s turn to the case of Cruz v. Benu LLC DBA Monsieur Benjamin, a recent panel decision.  The WCAB didn’t provide much guidance, adopting and incorporating the WCJ’s opinion, but we do get guidance from the trial judge who ruled against the cost petitioner – an interpreter service.

The interpreter provided services by translating the consultation between attorney and applicant at the signing of the C&R.  But defendant objected to the amount billed and there was a dispute.  Can you guess, dear reader, how much of a dispute?  What amount of billed services warranted two days of trial and a petition for reconsideration? 

…

$75

That’s right, dear readers!  Over $75, defendant was forced to endure two days of trial, provide witness testimony, and await the ruling of a petition for reconsideration.  As the denial of reconsideration just issued a few weeks ago, we’ll have to wait to see if this case makes it all the way to the Supreme Court.  

The WCJ first outlined that the interpreter, as a cost petitioner, has the burden of proof in establishing the market rate.  The interpreter service sought to meet that burden by submitting approximately 40 invoices performed by that particular interpreter service in June of 2019.  However, the WCJ reasoned “[a]s cost petitioner did not submit any evidence of the usual fee accepted by other interpreters in the same geographical area, cost petitioner failed to establish the market rate for her services.”

The WCJ also reasoned that as defendant paid more than $11.25 per quarter hour, for a minimum of two hours, the payment defendant already issued was reasonable (citing 8 CCR 9795.3(b)(2).)

So, what’s the takeaway from this, dear readers?

If the Cruz reasoning is applied, interpreters must show not only the fees paid for that interpreter, but also other interpreters in the area to establish a market rate.  Each defendant will have to decide for itself, however, if the fight is worth it.  Your humble blogger submits that it is.  The issue is never $75, nor is it about the $5 or $1.  If you yield the $75 this time, the prices will continue to rise above the “market rate” you have established by capitulation. 

It might not be worth it in each individual case, but to make a true determination, one must consider the increased rates in the aggregate.

What do you think, dear readers? Is your humble blogger just expressing litigation lust, or does he have the right of it?

How does it feel, dear readers? You made it to the first Friday of 2023. So far, the world appears to have remained intact, which is a welcome surprise for your humble blogger. What better way is there to end the first week of the new year, than a story about workers’ comp fraud?

Randy Rosen, who ran Wellness Wave in Beverly Hills has plead guilty to submitting fraudulent insurance claims. According to the Mercury News, Mr. Rosen’s girlfriend, Ms. Liza Vismanos, owned Lotus Laboratories and engaged in similar activities, pleading guilty to insurance fraud.

So if you have any liens or bills outstanding from either of these organizations, now might be a good time to consider what impact the guilty pleas have on the likelihood of the lien claimants prevailing at trial.

It should also serve as a reminder for us all that we must be diligent in looking out for, reporting, and prosecuting fraud.

Until next time, dear readers!

And it’s another beautiful Wednesday, dear readers!

Your humble blogger is away on an adventure, but that’s no reason not to have a blog post on what Soviet Santa hates more than anything – employment!

In the case of Brown v. County of Los Angeles/Sheriff’s Department, applicant sought workers’ compensation benefits alleging employment as an inmate of the county jail.  Although the county enjoyed initial success on the trial level, its victory was lost before the WCAB commissioners.

So, what happened? Applicant was sentenced to 364 days in jail where he signed up for a conservation work program to receive credits and expedite his release.  Not two weeks after starting the program, he slipped and fell while walking to the coffee pot to the print shop in which he worked.  He visited urgent care and was released a few hours later to the work program.

Applicant sought workers’ compensation benefits claiming he was an “employee” of the County, which the county denied.  At trial, the WCJ found applicant was not an employee and was thus not entitled to benefits.

At trial, the WCJ relied on an ordinance from the 19780s issued by the County Board of Supervisors that inmates can be forced to work and that this would not constitute an employment relationship.  The WCAB posed the test for employment of inmates as follows: was the work compulsory or voluntary?  If the work was compulsory, there is no employment relationship formed.  If, however, it was voluntary then there is.

After weighing the evidence, including the fact that applicant that applicant had to apply for the job in the print shop and could be fired or withdraw from that position at any time, the WCAB ruled that the job was “voluntary” and thus formed an employer-employee relationship between the County and applicant. 

So, what are county jails to do?  Well, it appears that to avoid workers’ compensation benefits, counties can compel labor from inmates rather than making it voluntary.  Of course, counties will then face the same problem that every would-be compeller has faced throughout history: sabotage, poor work product, damages to machines and equipment.

Sounds like a decision above your humble blogger’s pay-grade, but something to consider, ideally before an injury is sustained by an inmate!

Straight on till Friday, dear readers!

Happy Monday, dear readers, and more to the point, happy New Year!

We made it, and here we are!  I know we all had some doubts.  But, I thought it only fair to bring to the attention of my beloved readers and my despised detractors alike that practically no one is making predictions about the future any more – no one is saying “2023 is going to be my year!” or “the year of the Humble Blogger is at last at hand!”  We’re all very cautiously moving forward with only one goal and aspiration in mind for 2023

What better way to start another wonderful year of blogging than by giving a heads up on the laws taking effect 1/1/23?

First off, a chronic favorite here at WCDefenseCA, minimum wage!  Starting 1/1/23, minimum wage goes up to $15.50 per hour for all employers, possibly more by local ordinance.  What does that mean for you?  If you’re paying TD for an employee who was earning minimum wage at the time of injury, that employee’s “earning capacity” has now increased by operation of the minimum wage law, which means you should be prepared to reassess TD rate.

Second, everyone’s favorite abomination of a law: SB1127 is now in effect for all dates of injury!  What does that mean? If you had 90 days to investigate a claim you might have 75 now depending on the nature of the injury alleged and the occupation claimed.  No one knows how this will play out as the law was so poorly drafted and reasoned out.  Furthermore, you might think yourself safe if you’re not employing peace officers or firefighters or corrections officers.  But what about COVID19 presumption cases such as outbreaks or healthcare workers?  Time to take a look carefully because if workers’ compensation were a ship, our location on the map would read “here be dragons!”

To quote Lorne Malvo in Fargo: “Because maps used to say ‘there be dragons here.’ Now they don’t.  But that don’t mean the dragons aren’t there.”  And, of course, if you’re looking at the costs of litigation SB1127 in uncharted territory with the prospect of $50,000 in penalties, a dragon to face is not an unreasonable analogy.

Other notables include AB-257, which allows the government to raise wages for food workers up to $22 per hour, and of course SB-1162, which requires employers with more than 15 employees to disclose wage ranges for a given position to prospective and current employees.

What does that mean for us, dear readers? It means that California employers are going to have an even harder time keeping the lights on.  Those of us who have not left the state are going to be very busy working to make sure the shifting of more and more of society’s burdens on employers is kept to a minimum.  Cheer up, dear readers – at least we won’t be bored!

Happy New Year!

Happy Wednesday, dear readers! As we are just on the cusp of another one of those major holidays, Thanksgiving to be precise, your humble blogger thought it might be useful to answer that question rooted deep, deep in your heart.

Can you, in good faith, enjoy Thanksgiving tomorrow, if there are deadlines to be met?  Can you live out your Fight Club fantasies during the Black Friday store rush when you might have to file something that day?

Time for another holiday post! 

Thanksgiving is a day that that we take to celebrate all that is good in life.  Often enough, we lose sight of the fact that there is a whole lot to be thankful for.  Thanksgiving is one of those days that we are reminded of it. 

So, is Thanksgiving a “holiday” in the sense that all legal deadlines are extended to the next business day?  Or is it a “holiday” in the same sense that your humble blogger’s birthday is a holiday… a day which is great but no one seems to acknowledge as pretty awesome?

Well, Government code 6700(a)(16)(A) seems to hold Thanksgiving as a holiday.  Government Code 19853(a) not only holds Thanksgiving as a holiday, but the day after Thanksgiving as a holiday as well.  The California Supreme Court likewise acknowledges both Thanksgiving and the day after Thanksgiving as holidays, as does California Code of Civil Procedure section 135.

How does the WCAB approach this?  Well, in Pa’u v. Department of Forestry, a significant panel decision from 2018, the WCAB relied on the list of “Holidays” in Government Code 6700 to conclude that the day after Thanksgiving is a “working day.”

To your humble blogger’s mind at least, Thanksgiving should be treated as a holiday which extends the deadlines for filing and panel requests by one day.  The day after Thanksgiving, however, should not, and if your deadline fell on Thanksgiving or the day after, you should probably take action by that day to avoid the likely consequences.

Your humble blogger wishes you a safe and health Thanksgiving dear readers, full of joy, reflection, and hearty feasting!

Can you feel it, dear readers?  Just around the corner is your humble blogger’s favorite holiday of all – Thanksgiving!  The gentle gobble-gobble of turkeys, the delicious pumpkin pies, the deep, soft sleep enjoyed only by the just except after the Thanksgiving meal, when that slumber is enjoyed by all… it’s wonderful!

Well, before you hop on the literal gravy train let your humble blogger, especially since Chanukah and Christmas are coming up soon, your humble blogger thought he’d share another one of the items on his workers’ compensation wish list.

Since it seems that if we eliminated cumulative traumas in California altogether, roughly half the industry would be without a job, how about something a bit more realistic – CT reform.

The frustrating thing about cumulative traumas is that the standard for a CT is so low, and the deterioration of the human body is so universal, the California CT has become a catch-all.  Is the claim barred by a post-termination defense? That’s fine, just plead it as a CT.  Did applicant not get the QME specialty she wanted?  That’s fine, just plead it as a CT and get a new panel. 

Some applicant attorneys even claim that the companion CT entitles applicant to an additional SJDB voucher, or additional TD for non-overlapping periods.  Absurd, I know, but still allegations to contend with and waste precious defense attorney and WCAB time on.

So how would your humble blogger reform CTs in California, if not eliminating them altogether?  Simple.  Raise the bar on AOE/COE for cumulative trauma claims to match that of psyche claims: predominant cause.

If there is a diagnosis which applicant alleges is industrial, then the burden should be on applicant to prove, by a preponderance of the evidence, that the predominant cause of the cumulative trauma is predominantly caused, that is, more than 50%, by actual events of employment.

Now, I’m sure the applicant attorneys are demanding I turn in my California Bar card and the lien claimants are clutching their pearls and seething at this idea, but the logic is sound and follows the exact same logic as that which guided a raised bar for psyche claims. 

CT claims can be used to retaliate against employers and are, for the most part, maneuvers around statutory defenses. 

They are also so entangled with the normal decline of the human body that they have turned employers and the workers’ compensation system into universal healthcare providers.  Any affliction that affects the human body, if it was in the slightest way accelerated while applicant happened to be working, becomes a CT claim.

In your humble blogger’s estimation, that presents a reasonable compromise between the absurdity that is the cumulative trauma theory now, and the secret desire of every defendant in California to have CTs banned altogether.  

But what about you, dear reader?  What do you think?

Alrighty dear readers – your humble blogger has a question for you.

What, pray tell, are your plans for right after thanksgiving.  Do you plan on sharpening your pitchforks?  Are you going to be re-binding and re-oiling your torches?  Do you plan to grumble vague angry sounds as you coalesce into an unruly mob not unlike the following?

Well, so long as you promise that the answer to all of these is an honest “no” I can report to you that the Department of Workers’ Compensation is holding an in person hearing on December 6, 2022 at 10:00 a.m.

As you can see in this announcement all stakeholders, “including insurers, attorneys, employers, injured workers and health care providers” are invited to share their thoughts on how to improve all aspects of the workers’ compensation system.

Your humble blogger’s first suggestion?  Stop making in-person the default.  Travel in urban areas has become extremely tolling on the time budget when traveling by car, and exceedingly dangerous when traveling by public transit.  Remote hearings, depositions, trials, and town halls are well within the scope of feasibility and would be a good start to providing accessibility to the community.  Your humble blogger’s office is in the Peninsula just south of San Francisco, but there are countless stake holders all over the state for whom Oakland is not realistically accessible.

What are your suggestions for improving the workers’ compensation system, dear readers?

Mind you, the DWC is not going to be able to implement any rule or regulation contrary to the labor code, so if your suggestion is to ban cumulative traumas or provide “pain and suffering” damages in workers’ comp, you’re probably barking up the wrong proverbial tree, as it were.

Your humble blogger would like to see a refresh on all forms: minutes of hearing, order approving C&R, pre-trial conference statement, stipulations, C&R, etc.

Your humble blogger would also like the walkthroughs to move back to remote appearance, and the trials to be set to default remote hearings absent good cause to have the trial in person.

As a defense attorney who is referred walkthroughs of settlement paperwork all over the state, it would be nice to have uniform rules.  For example, some venues put a cap on how many walkthroughs will be heard on a particular morning – your humble blogger can find no authority for such a limitation in the labor code of the rules and regulations.  Others want a waiver of the right to QME in writing, while some are satisfied with a notice of the right to a QME.

Another improvement your humble blogger would like to see is more stringent enforcement of the rules requiring parties to meet and confer BEFORE a hearing.  There is already such a requirement prior to filing a DOR, and there is pandemic-era rule requiring such efforts before an MSC.  It is rare enough that your humble blogger sees these requirements enforced and would like to see more of it.

All these suggestions, though solid gold if you ask the author to evaluate them, will fall on deaf ears unless your humble blogger braves the traffic, the violent crime, and the car break-ins to deliver them in a five minute burst of oratory. What do you say dear readers – do you plan on attending and making your voices heard?  Your humble blogger’s bow tie is shimmering in anticipation.

Have a great weekend!

If a car is ever invented that uses cynicism for fuel, California’s workers’ compensation system will likely serve as the mother lode for this amply abundant resource. 

Your humble blogger has heard countless accusations from bitter applicant attorneys that the only reason to go to trial instead of stipulating to 100% in every case is so that defense attorneys can bill more.  How often have we heard that insurance companies are lighting Cuban cigars with $100 bills paid for by the suffering of injured workers?  And certainly, there is no such thing as employee workers’ compensation fraud – it’s always just the employers using misinformation to poison the well of public discourse.  Nonsense, certainly, but there’s plenty of it to go around.

Well, the defense community has its cynics too, particularly about suspected but rarely proven schemes where certain applicant attorneys and vendors are in the cahootiest of cahoots to enrich themselves not by obtaining appropriate benefits for injured workers, but by scamming the system at the expense of consumers.

It’s often a jolt to the system when there is an investigation and a conviction of such a scheme, but it happens now and then.  It appears that Jon Woods, Esq., has been convicted of 37 felony counts of insurance fraud and sentenced to four years in state prison and ordered to pay restitution to several insurance carriers. 

New Santa Ana reports on a scheme to charge attorneys and vendors fees for referrals of clients.  As alleged, Jon Woods also worked with Edgar Gonzalez, using his subpoena company, USA Photocopy, in exchange for having various business expenses of Mr. Woods paid for by Mr. Gonzalez.

So, besides getting deeper entrenched in our cynicism and convictions that there is a giant conspiracy out there to defraud every workers’ compensation defendant, what can we do?

Well, if you have liens from USA Photocopy, you may want to question them and look closer based on these revelations.  Furthermore, in any case where you have any subpoena service with a lien which also has or had Mr. Woods as the applicant attorney of record, you may want to consider looking closer at the basis for the subpoenas.  This conviction suggests that if one apple in the barrel was rotten, the rest may have turned too.

Don’t let this sour you, dear readers.  This is a reason to be ever vigilant against fraud, but not to see it everywhere.  There are actual employees in California.  Those employees do, on occasion, actually sustain injuries.  And, upon seeing the benefits notices and the panel process, not to mention being seen by a particularly grumpy workers’ compensation clinic doctor, some of those actual employees with actual injuries might actually seek legal counsel.

The vast majority of the cases we deal with are not fraud, so let’s let this story fuel our attentiveness and our determination to catch dirty hands in cookie jars when the situation calls for it.  Your humble blogger, as always, remains eager and willing to cheer you on in doing just that.

Happy Monday Dear Readers!

Pop quiz for you – does a body part have to be plead or claimed by an applicant in order for him to receive medical treatment for that claim?

We touched on this a bit in an earlier blog post where a lien claimant psychologist could not recover when the application never alleged psyche as part of the claim.  Well, the same result was reached in the panel decision of Jiminez v. Yang Wu International Inc.  Lien claimant sought recovery for dental medical treatment, but applicant never alleged dental/jaw/tooth injury, although he did claim injury in the form of various orthopedic and respiratory conditions.

A C&R was reached and approved by a WCJ but there was no dental injury plead in the original application nor in the C&R.  The WCJ found no liability on the part of defendant for the dental medical services, and the lien claimant appealed.  In affirming the WCJ’s ruling, the WCAB noted that the underlying medical report did not address why the dental medical treatment “was reasonably required to cure or relieve applicant from the effects of his industrial injury.” 

Central to this reasoning was that the lien claimant bore the burden of proof, and merely showing that medical treatment was provided is insufficient. 

The WCAB rejected the theory advanced by the lien claimant that the (alleged) fact that “defendant had notice of the claim of dental injury” was in any way relevant to the analysis. 

The reasoning is sound, of course, but imagine if a contrary finding was reached: the mere existence of an industrial injury would render the employer liable as a general health insurer for anything and everything that ailed the injured worker.  Would an admitted back injury give rise to liability for orthosis for a pre-existing hand injury? 

Aside from the good result for the defense, this case is a valuable reminder to us all that pleadings matter and should be examined in detail, both at the inception of the case and in contemplating which body parts to include in the C&R.

Happy Veterans Day, dear readers!

In case you’re working today and wondering whether today counts as a “holiday” for deadline purposes, it certainly is under California Government Code 6700(a)(13). 

Aside from trying to decide whether you have to get that petition out today, perhaps you might have a moment or two to reflect on the nature of the holiday itself.  Veterans Day is a holiday to honor the veterans of the United States.

Many veterans serve their country honorably and return to civilian life to pursue gainful non-military careers or stay in the military to pursue military ones.  Many, many, veterans however return with injuries that preclude such pursuits.

Some are physical and easily seen, and some, like PTSD, are invisible other than their destructive effects on the veterans and their families, friends, and communities.

If you can, please consider making a donation to Operation Surf, an organization dedicated to helping injured veterans find healing from their injuries.  

Your humble blogger looks forward to seeing you back here, dear readers, come Monday next.

Have a great weekend!