Your humble blogger loves few things more than to bring good news to his fellow members of the workers’ compensation community, and today is one of those days.
Governor Brown has declined to sign Assembly Bill 305, which would have barred the workers’ compensation system from apportioning permanent disability to various physical conditions such as pregnancy and menopause.
This is a good thing, dear readers. Don’t get me wrong – in your humble blogger’s ideal world, no one would ever get hurt. But chipping away at apportionment is not the way to keep our state afloat, and it’s not the way to help employers keep California’s economy going.
Ultimately, this bill highlights a truth that we all know too well – life isn’t fair. So, who is going to bear the burden of the unfairness? The bill would shift the burden to the employer, and from where your humble blogger sits, the California employer has been burdened enough.
Do you ever sit back, with your feet on your desk, a fine scotch in your glass, and a puzzle dancing in your mind – why can’t we have nice things? Well, dear reader, THIS IS WHY!
Assembly Bill 305 has passed both the Senate and the Assembly and is now headed for the Governor’s desk. If signed into law, it would prevent apportionment of permanent disability to pregnancy, menopause, or, in the case of psychiatric injuries, sexual harassment, menopause, or pregnancy.
I’m sure the proponents of this bill see themselves as some sort of champions for the oppressed. Certainly, it’s not fair that women face some difficulties not visited on men. Surely, the world would be a better place if no one ever got hurt. When people do get hurt, the world would be a better place if one’s sex did not exacerbate the burden such injury places on the injured. Can’t we all think of ways the world could be a better place?
In fact, what we’re going to see is a further increase in the cost of labor in California. Do you want to see the effect of such policies in the aggregate? Take a look at data recently released by the IRS for 2012-2013. California continues to see a dramatic decline in tax-generating population (and tax dollars as well).
What goes with these particular individuals, as they cross state lines? Jobs. These are the jobs that generate revenue that keeps the government lights on and our absurdly horrible roads in one of California’s two favorite conditions – in need of repair or closed for repair. California will continue to lose the jobs and services we all enjoy and rely on to other states (or to the abyss).
This insanity has to stop. It is not unusual for California’s legislature to have absolutely no understanding of the difficulties faced by small businesses in keeping the lights on. It is, however, a bit of a surprise that the same legislators are equally deaf to the difficulty labor is facing in finding work. Minimum wage can be raised to $1,000 per hour, and PD benefits can be magnified 100 fold, but neither will benefits Californians who cannot find work.
Putting things in proportion, dear readers, I get it – the small increase this particular bill will cause in the cost of workers’ compensation coverage is not to blame for the difficulty that industries employing workers earning less than $100,000 per year are facing in California. But, as stated before, it is a symptom of a disease, or, rather, a diseased mindset when it comes to how California functions.
Ok dear readers, we made it to another Friday. Now, as a reward for keeping your composure this whole week, how about a blog post about a recent panel decision?
So way back when in 2013 we got SB-863 which reformed workers’ compensation and, among a whole bunch of other stuff, gave us Labor Code section 4061(i), which, presumably, should prevent having cases set for extent of PD or work restrictions until there’s been a med-legal and a treating physician evaluation.
Unfortunately (or fortunately, depending on which side of the argument you are on) 4061(i) will typically get you an eye-roll at best, so I wouldn’t hold out hope for an OTOC or continuance in most cases. So let’s look at the recent panel decision of Gomez v. Pagliro Construction, Inc. Defendant objected to setting all issues for trial as it sought an additional panel in internal medicine. It also raised an objection under 4061(i). When the WCJ denied the additional panel request and set all issues for trial, the WCAB got involved to address defendant’s petition for removal.
So why get an additional panel in internal medicine? Applicant reported chest pains following his 10-foot fall and the orthopedic QME advised that such complaints, and the related issue of causation, was outside of the good doctor’s expertise. He suggested referring the issue to a cardiovascular specialist.
The WCAB agreed that an additional panel was warranted, as solely having a PTP comment on the issue without the opportunity for a med-legal would prevent defendant “from conducting necessary medical-legal discovery to determine compensability for the alleged injury to the chest and circulatory system.” The panel decision went on “neither party is obligated to accept the findings of the treating physician regarding causation. The Labor Code expressly provides a process for either party to object to a medical determination by a treating physician and request a medical-legal evaluation from a panel QME to address the dispute [citations].”
So what about the 4061(i) objection? Does the WCAB give us some guidance on how that applies? Nope! Because defendant is entitled to an additional panel, the 4061(i) objection is rendered moot.
4061(i) is supposed to afford parties an opportunity to have both a med-legal and a treating physician comment on whole person impairment and work restrictions before the matter is submitted. We know from the case of Hernandez v. Costco Wholesale that if 4061(i) is not raised in an objection to a DOR, it may very well be waived. From Bustos v. WCABwe know that merely seeing a PTP and a med-legal is not enough – each of them must address WPI/PD.
For whatever reason, this section has not been getting a lot of attention from the panels and thus we are not left with very much in terms of guidance. Thus, dear readers, the title of today’s blog post.
What has your experience been, dear readers? Your humble blogger is eager to read all about it. Have a great weekend!
4061(i) provides, after all, that “no issue relating to a dispute over the existence or extent of permanent impairment and limitations resulting from the injury may be the subject of a [DOR] unless there has first been a medical evaluation by a treating physician and by either an [AME or QME].”
So… WHAT DOES IT MEAN?!?
One panel decision held that failure to object to the DOR citing 4061(i) waives the objection, but now another, Bustos v. WCAB/Randstad Placement Pros, a writ denied case, holds that an evaluation is enough – the fact that the treating physician has declined to address PD (or find applicant P&S) is not good grounds to hold off trial or close discovery.
In Bustos, applicant was examined by her PTPs, but they never addressed PD. Meanwhile, her PQME had found her permanent and stationary and expressed an opinion as to her PD level. Applicant sought reconsideration arguing that defendant’s DOR was defective because it had not complied with 4061(i). However, in affirming the WCJ, the WCAB concluded that the trial presented two competing opinions: the PTP who did not find applicant permanent and stationary and the PQME who did. The WCJ found the PQME more persuasive and thus the matter properly proceeded to trial.
As such, the WCAB rejected the claim that an applicant must be found permanent and stationary by two doctors prior to proceeding to trial. It appears that an examination is sufficient to satisfy the requirement of Labor Code section 4061(i).
However, what if the pieces on the game-board were flipped? If applicant’s PTP had found her permanent and stationary, but the PQME had not? Could one party force a trial at that point? I think so.
Now here’s another question – let’s say Ms. Bustos’ PTP ultimately does find her P&S, and provides a higher PD rating. Would that report provide good cause to reopen for new and further disability?
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.
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.
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.
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).
How often do you deal with the issue of jurisdiction? It’s a rare bird, to be sure, and why? Most cases include injuries sustained in California, and that’s typically enough to grant jurisdiction. Labor Code section 5305 holds that the DWC and the WCAB have jurisdiction over any case where the injury occurred outside of California, but the contract of hire was made in California. (Please note, dear readers, that the clause “where the injured employee is a resident of this state” was found unconstitutional in Alaska Packers Assn. v. IAC, but, for some reason, the language remains in the labor code.)
Once in a while, though, it does come up, and, with such frequency, that every claims examiner and defense attorney should have a mental warning bell whenever one of them non-Californians comes round these parts and wants to get a fixin’ to workers compensatin’! We don’t take kindly to such antics around here!
The issue came up in the matter of Walkerv. Petrochem Insulation, Inc. The injured workers sustained an injurious exposure while working in Utah, but was hired in Georgia via e-mail. The contract was signed in Georgia, scanned and e-mailed back to the employer’s office in Utah. Slam dunk, right?
Not according to the applicant – the employer has a presence in California, and copies of the signed contract were eventually forwarded to the California offices. Applicant was required to join a union based in California and the pay stubs originated in California as well. In a world of e-mails flying through the internet, what is the actual place of employment?
Well, the WCJ put emphasis on some of the other facts: applicant’s supervisor was in Utah when he e-mailed him the contract and received a signed copy back. Furthermore, applicant did no work in California, but only in Utah.
Ultimately, the WCJ held that applicant failed to carry the burden of showing that California had Jurisdiction, and the WCAB agreed.
But why go to such great lengths to get California benefits? After all, why not seek out benefits where the injury occurred? Surely, California is not out of pace with what the rest of the Union is providing to injured workers… right?
The Orange County District Attorney has announced that it has charged a Costa Mesa Police Officer with insurance fraud, claiming that he faked a work-injury of striking his fist against a wall during an arrest. An internal investigation “uncovered evidence contradicting [the officer’s] account of how and when the injury occurred.” Your humble blogger is declining to name names at this time, as this is only an accusation, and falls short of a conviction.
As noted on this blog a time or two, certain public employees, typically law enforcement officers and firefighters, hold a certain degree of public trust. Only in a society as confused as ours, are workers’ compensation defense bloggers and attorneys not the pride of the population… To abuse that trust does a considerable amount of damage to society in general.
But, bitter cynic that your humble blogger is, he can’t help but wonder about two particular issues in such scenarios.
On more than one occasion, your humble blogger has met some resistance from law enforcement agencies in having obvious, obnoxious, and borderline heinous instances of fraud ignored – the damages are too small, the fraud not high-profile enough, etc., etc. How often does a law enforcement agency decline to prosecute a person who steals from its coffers on those very grounds?
Furthermore, we obviously have instances of fraud on the part of law enforcement officers. This blog has documented sheriff’s deputies, police officers, firefighters (pretend they enforce the law against fires), and CHP officers charged with and convicted or confessed to various forms of workers’ compensation fraud. It is possible to be an officer of the law and steal from your employer (and the tax payers)! Why, then, do we continue to offer so many presumptions to favor LEOs in workers’ compensation cases? Nothing against cops or firefighters – of course there are some great folks in uniform that are honest, hard-working, and brave, but why the kid gloves and special treatment?
There are construction workers that are honest, hard-working, and brave. There are lots of professions that expose people to dangerous conditions. Even workers’ compensation defense attorneys can encounter danger from time to time (sometimes parties can react violently to not getting certain benefits, after all).
It’s obvious that the badge or the fire truck don’t make one a paragon of truth and justice – even the rotten ones get to play with the siren or shoot the water hose.
Perhaps we need more powerful lobbying groups – perhaps workers’ compensation defense attorneys should maneuver the legislature into various presumptions to favor our interests – such as conclusive presumptions that we’re handsome devils; witty and charming beyond contest; and when we turn to blogging, there is an irrefutable presumption that we’re humble.
Given the considerably disconcerting events involving law enforcement officers making the news lately, perhaps it’s time we departed from the hero-worship that leads congenital heart conditions to be found compensable and instead subject law enforcement officers’ claims to the same scrutiny as the common man – both as to the veracity of claims and the burden of proof in establishing compensability.
That is, of course, until the defense attorney lobby gets going and membership in the profession establishes a presumptively compensable psyche claim…
Power through, dear readers, your weekend is just around the corner!
Alright, dear readers, it’s Friday, and the subject of today’s post is sexism and workers’ compensation, but your humble blogger doesn’t want to tell any sexist jokes, so here’s a video of construction workers NOT cat-calling:
Basically, the idea is that Labor Code section 4663, which requires “[a]pportionment of permanent disability [to] be based on causation” to be amended to specifically exclude pregnancy, breast cancer, menopause, or osteoporosis from the apportionment analysis.
Now, your humble blogger is no political analyst, but I’m guessing that this would not be an issue, and no such bill would be necessary, if doctors never apportioned the cause of permanent disability to these conditions. I’m also not a physician, but I’m going to go out on the proverbial limb and say that some doctors could reasonably conclude that the effects of pregnancy, breast cancer, menopause, or osteoporosis might contribute to the overall permanent disability of an industrially injured worker.
As such, if, non-industrial conditions are causing permanent disability, and AB 305 would prohibit apportionment to them as non-industrial causes of permanent disability, aren’t we just forcing employers to provide permanent disability benefits for non-industrial disability?
The language in this proposed piece of legislation continues that “[a]pportionment in cases of psychiatric injury may not be based on psychiatric disability or impairment caused by sexual harassment.” Again… if a portion of an injured workers’ psychiatric permanent impairment is caused by sexual harassment, particularly non-industrial sexual harassment, why should the employer be forced to pay for the same?
Interestingly enough, and I hesitate to write this less I provide anyone with ideas, Labor Code section 3208.3(b)(1) requires that the injured employee claiming a compensable psychiatric injury prove, by a preponderance of the evidence, that actual events of employment were predominant as to all causes combined of the psychiatric injury. So, if 50% of the permanent disability of the non-psychiatric injury is caused by menopause, and we can’t apportion the PD to the menopause, the menopause is still not an actual event of employment. Causation of permanent impairment and causation of injury are different points of analysis, after all.
Now, on the “bright side,” that means more money for injured workers and more money for the attorneys of injured workers.
On the other hand, in the long run, when we reach the tipping point and start losing more jobs. You see, dear readers, in the circle of economic life, applicants’ attorneys need injured employees. But, of course, injured employees (and non-injured employees) need employers. It goes without saying that insurance companies and defense attorneys are in the same cycle of economic life.
With all due respect to assemblywoman Gonzalez, I am hoping this idea has a bright and short life in the discussion pools, and then settles comfortably into a footnote status that some researcher will uncover in 50 years (Did you know that in 2015, some people wanted to exempt from apportionment certain conditions which are typically suffered by women?).
And then there’s the following story. Jose Cortez of San Bernardino County sustained an injury while working as a gardener after a branch fell and landed on him.
While Mr. Cortez was collecting disability payments, private insurance investigators observed him on six occasions performing his usually gardening duties, and referred the case to the District Attorney’s office, who then took the case the rest of the way and filed criminal charges. (Although the D.A.’s office deserves credit for its investigation and impending prosecution in this case, the insurer’s investigators are to be commended for providing the Department of Insurance with a packaged case ready for the slam-dunking.)
Your humble blogger has been known to rant and rave about what such fraud does to California, which can be boiled down to criminal waste – someone is getting free money without providing society with any sort of labor or product in return. Law enforcement dollars are wasted on investigation and prosecution, and private companies waste dollars on investigators while their policy holders must chip in extra to root such frauds out.
The content of this web log is for information purposes only and should not be construed as legal advice. No attorney-client relationship is formed by this site. If you would like to speak to a workers’ compensation defense attorney, please contact Gregory Grinberg at 888-226-3400.
