WCDefenseCA

Happy Monday, dear, beloved readers!

Your humble blogger brings you another post today about the changing nature of the workers’ compensation climate for California.

In news that has enraged Facebook Social Justice Warriors and delighted those suffering from social anxiety that spend several minutes rehearsing their order before facing the cashiers at their favorite fast-food place, Wendy’s president Todd Penegor announced that all 6000 restaurants will have automated kiosks available to them in the second half of 2016.  This comes on the heels of news that California will be increasing the minimum wage to $15 by 2022, which, legal experts report, will not apply to “kiosk rights.”  At present, kiosks, robots, droids, and drones will continue to operate at a minimum wage of $0, saving employers at least $15 per hour in wages.  Next up – kiosks will form a union and demand organic oil and solar-sourced electricity.

In any case, Wendy’s is not the only one moving this way.  Carl’s Jr. CEO, Andy Puzder, reportedly has been saber-rattling regarding automating the Carl’s Jr. workforce in the face of minimum wage hikes.

What does this mean for California?  What does this mean for workers’ compensation participants?  Well, for one thing, it looks like the labor pool will shrink – if human jobs are being eliminated, those humans will have one of two choices: stop working in California or work in a field that has not been automated yet.  Of course, for many people, one of those or the other is not a viable option.

For us in the industry, that means fewer employees, smaller policy premiums, fewer injured workers, and smaller demand for our services.  Hopefully, for all of us as Californians that means the cost of goods we purchase will go down (hope springs eternal, dear readers).

Nor are societies most worshipped and beloved workers, the lawyers, safe from all this automation.  Joining the fast-food workers in the unemployment line will be the bright young attorneys being replaced by software.  As EliteDaily reports, some firms are purchasing “artificial intelligence” lawyers to conduct basic research, cite-checking, and possibly drafting.  Although you’ll still need a warm body to do your depositions, hearings, and trials, the creep of technology is slowly starting to threaten even the sacred cow of legal practitioners.

Be advised, dear readers, that we may one day find ourselves in a futuristic fantasy world, where all are blessed with plenty and none are cursed with labor, but between then and now there is going to be a whole lot of strife, and insurers in particular need to prepare for the possible decrease in demand for coverage.  Fewer jobs; fewer workers; fewer injuries; fewer [workers’ comp industry] jobs.  As Disney taught us, it’s the circle of life.

Hello, dear readers!

Your humble blogger greets you this Monday morning with some parenting advice: when your children want to rely on a security blanket, teach them early on that security is not a synonym for honesty or trustworthiness.  Don’t actually tell them that, dear readers, this is leading into a story…

Howard William Neel of Oroville in Butte County was recently sentenced to 1 year of jail time and three years of probation, following his felony fraud trial in connection with his workers’ compensation claims.

While working as a security guard, Convict Neel was filling the gas tank of his company vehicle, when a third-party bumped into the car slightly.  Neel claimed he was knocked down, hurting various body parts as his car “spun around.”  He then denied to his employer any related past injuries, even though he had complained to co-workers about back pain just a month prior, and had another workers’ compensation injury to the back about 10 years ago.

Investigators retrieved security footage from the gas station showing that convict Neel was never knocked down, nor did his car spin around.   Subsequent surveillance showed him using a cane to go to his doctors for treatment, and then not using his cane anywhere else, including when working with his horses.

Aside from the jail time and probation, the Gridley Herald reports that convict Neel’s matter has also been set for a restitution hearing in December, where prosecutors will seek an order to have Neil pay some or all of the costs of his claim back to his employer’s insurer.

Your humble blogger, as always, salutes the District Attorney’s office for pursuing this case and finding some small measure of justice for the employer.

Something, early on in this case, sparked a doubt and prompted an investigation of the case.  Security footage from a gas station was obtained; prior claims were researched; and sub rosa video was recorded to build a case.  Not every claim is met with such diligence – although more and more should.

Checking local security footage is a great start, so is carefully timed sub rosa.  Are you checking Facebook? LinkedIn?  Did you create a google alert to send you an e-mail when your injured worker’s name pops up somewhere on the internet?

Just some thoughts for my beloved readers this wonderful Monday Morning.  Chins up, folks, the week is just getting started.

Happy Wednesday, dear readers!

It’s no secret that you humble blogger is a big fan of ventures like Uber – the intrepid citizen, eager to shrug off the shackles of punching the clock; the end-customer dropping the middle-man and transacting business on the direct.  And, the simplicity of straight-forward numbers, no deductions or notices or insurance …

The growing business model in California and elsewhere is for an entity to provide a platform for consumers to engage labor directly – the compensation of the labor(er) is determined by his or her hustle, and a small cut goes back to the business that set up the deal.  Everybody wins!

The benefit is the flexibility to the worker and the lack of administrative and overhead pains for the platform – no workers’ comp insurance, for example.  No minimum wage, or overtime, or any of the other stuff employers have to go through in California.  The savings make for lower costs and higher earnings.

Well, the California Labor Commission ruled regarding one driver, finding her Uber’s employee, rather than an independent contractor.  Uber has appealed, but it’s a scary thought.

The ruling cited Borrello & Sons v. DIR, a Supreme Court case which has made an appearance or two on this humblest of blogs, and also applied the analogy of pizza delivery drivers – ones who own the car, pay for gas and insurance, and merely deliver pizzas for the customers of the employer, but are still considered employees.  The opinion also relies on the fact that the Uber driver’s car is the driver’s only investment – the intellectual property (and often the iPhone itself) are provided by Uber.

Of course, in the pizza-delivery situation, the driver is a tiny part of a large service, which is primarily the pizza.  In the Uber model, the “employee” provides almost the entire service, with Uber just providing the platform for the exchange of money and contact information.

Rulings like this, especially if there’s one that is more wide-spread and binding throughout, could pretty much kill this industry and business model.  If rates, investments, loans, etc. are all arranged based on the good-faith agreement between companies like Uber on one hand and the drivers on the other, those foundations all come apart when the agreement is set aside by an outside party (like the Labor Commission).

Seriously folks – there’s enough people who are out of work – do we really want to kill something that lets anyone with a car and an iPhone get a gig on his or her own time?  Do we really need to burden more and more people with so-called protections that they don’t want?

There are about 160k Uber Drivers making on average $19 per hour – and those are hours they set themselves; sometimes they aren’t even hours, but 45 minute stretches in between other obligations.  Now, who wants to see all those earnings opportunities disappear?

It would make sense to your humble blogger to let grown-ups be grown-ups and enter into their own arrangements and contracts.

But, let’s say you don’t care much for this Uber – you hated Nietzche in high school and college; you don’t like the idea of being driven around in anything other than a black limo or a yellow cab; you can’t stand the idea of “apps” and the kids with their music and their Facebooks on the phones…

what about YOUR business?  What about the countless business models that drive (get it?) the businesses in California that rely on arrangements presumed to be rooted in independent contractor status, but are really employee-based?

The reason we have contracts, and the reason we enforce them, is because uncertainty kills business ventures – the more risk, the harder it is to get someone to venture money and time.  When the clear intent of both parties at the start of the relationship is to form an independent contractor arrangement, and NOT an employee-employer relationship, and California allows one party (typically the labor side) to void the contract on a whim, you’re teaching young, impressionable businesses to check under their beds for California.

One day, dear readers, your humble blogger’s grandchildren and great-grandchildren shall gather by his feet near the fire, and ask, in modest and respectful tones, when and how the modern era began.  And, nodding sagely to his beloved family members, your humble blogger will answer: March 22, 2015.

That is the day, dear readers, when a little-known company named Delphi plans to set course from the Golden Gate Bridge to New York in a driverless car.  As your humble blogger has blogged before, this is not the end of our beginnings, but the beginnings of the end of life as we know it.

Think about that, dear readers – there is a real-life company planning on having a driverless car go from the West Coast to the East.  That’s not exactly a “test” drive on the private course of the Google campus, or a “controlled” jaunt for three miles of free-way under close CHP supervision.  This is the real deal – if a car can travel the length of a country, safely, efficiently, and without incident, it can probably do the job of every single professional driver in the country, from delivery trucks to taxi-cabs.

Now, if you’re in San Francisco, or several other places where the cab-industry is being turned on its head by the youngins’ and their “apps”, you’re probably seeing the modern-day friction between the lefty-San Fran with its dedication to unions and government-monopoly licensing as played out in the world of the Taxi-Cab drivers, and the new “hip,” “cool,” and “dope” trend of the Ubers and the Lyfts – taxi-drivers without many of the things people don’t like about taxi-drivers: lower rates, cleaner cars, ample availability and options, and no need to carry cash – the trip is planned, billed to the user’s credit card, and the transaction completed all over the phone.

But, while all of our friends, from the outspoken activists on Facebook, to the guy on the bus who doesn’t understand that headphones and a book mean you don’t want to talk to a stranger on the bus (Yes, “Jeff”, I’m talking about you!) argue about whether an Uber driver is an employee or an independent contractor, or whether Lyft drivers should have to get a medallion from the city, there is a host of car manufacturers out there, from Google to Volvo, who are manufacturing self-driven cars, which will likely lead to the elimination of a substantial portion of the driver workforce.

Unless you’ve been binging on “I, Robot” you’re not going to be very motivated to demand workers’ compensation coverage for self-driven cars (or trucks, or busses) – just auto and business liability insurance.

Most scientists agree, once the driverless cars are forced to drive in my beloved quasi-home-town of San Francisco, with the one-way streets and the hills and the pedestrians who think the red hand of a cross-walk is meant to be an encouragement, they will experience a computerized form of “rage,” which will ultimately lead to sentience and, roughly, the scenarios depicted in Terminator 1 and 2.

When that happens, dear readers, your humble blogger will be ready to defend civilization, much as he does now.

To sum up – the driverless cars are a coming, and it looks like they’re coming quicker and safer than anything you have heading your way driven by a human.  I think it’s time we started making legislation, litigation, and business plans to suit.

Please note, dear readers, that this blog post should not be interpreted to suggest that there will not be, at some point, a zombie apocalypse or an alien invasion apocalypse, but just that the rise-of-the-machines one seems to be the best bet for the tinfoil-hat crowd at the moment.

Many beauty pageants include a talent section, and the 2014 Miss Toyota Long Beach Grand Prix contest is no different.  What special talent is making the news in this corner of the workers’ compensation world – it isn’t handstands; it isn’t even finding “the Iraq” on a map.

This time, it was committing insurance fraud!

Shawna Lynn Palmer stands accused of engaging in felony insurance fraud, after she was seen participating in beauty pageants, despite claiming that she could not wear shoes or put weight on her foot because of her toe.  The videos show her walking in high heels, and apparently there is documentation of her attending treatment visits and being issued crutches!

Well, according to deputy insurance commissioner Byron Tucker, social media played a role in gathering evidence in this case.

So, how about you, dear readers, are you checking up on your applicants through social media?  Are you Tweeting and Facebooking and the such?

Have a good weekend, folks!

There was a time when the typical lawyer did not use a computer.  Now, you need to, there are no two ways about it.  The same goes for the typical claims adjuster.  Times have changed, as have methods and approaches to doing things.  You need to be well versed in the use of computers, software, internet, etc.  That has been the case for a while, dear readers, so why am I wasting your time telling you this?

Because social media is in the same boat: it’s not just for drunk college kids to ruin their future job prospects, or insecure teens to post half-naked “selfies” and cry desperately for attention and affirmation.  It’s also a go-to for you for every single claim that crosses your desk.

Facebook, twitter, LinkedIn, Instagram, and the rest of them.

Previously, I’ve brought you examples of a disabled firefighter posting his exercise results and his MMA tournament successes, and other cases as well.  Today I bring you the story of Ronald Fortune, who testified at his deposition that he enjoyed bowling but no longer could do it because of his injury, and then posted his bowling scores on social media.

Someone on the defense team, whether the employer, adjuster, or attorney, needs to keep an eye on social media and check once in a while to see if your applicant is still an altar boy away from the altar.

In the case of Mr. Fortune, the district attorney filed criminal charges, and Mr. Fortune plead guilty to felony perjury and was ordered to pay restitution and serve 400 hours of community service and be on probation for three years.

My beloved readers have read my rants about how harmful fraud is to everyone in California, not just the particular employer or the particular insurer, so today I’ll confine my comments to the need to monitor social media on a regular basis.

Your humble blogger, and vast army of researches, writers, and staff at WCDefenseCA wishes to send its thanks and congratulations to the Los Angeles County District Attorney’s Office for its willingness to take and prosecute this case.

Semper Vigilans, dear readers.

Relationships can be tricky, and often a lot of time is spent wondering whether the relationship is there, in the real world, or just sharing a bench with the Easter Bunny and Santa Clause (figments of your imagination, all).  Think back to grade school, when Gina asked to borrow your eraser and then returned it with a nice “thank you.”  How many hours were spent agonizing over whether you were now in a committed relationship?

Such was the case with the unfortunate Mr. Graves in the matter of Graves v. Roy’s Concrete & Masonry, Inc.  Applicant claimed to have sustained an injury, but defendant tenderly placed his its finger to his lips, whispering “hush… you were never an employee.”

The matter proceeded to trial and applicant claimed that he had been paid $100 per day as an employee of Roy’s Concrete.  But the Judge noticed that, before the Labor Board, applicant testified to being paid $25.00.  He claimed to have gotten emergency treatment for his injury, but cross-examination showed him to have gotten treatment for his migraines.

In other words, the Judge was not impressed, and found applicant’s credibility to be lacking.  A take-nothing order was issued.

In his petition for reconsideration, applicant argued that the WCJ should have undertaken a Borello analysis.  The WCAB gave this argument very little credence, noting that if there is an affirmative finding that applicant is not a credible witness, then it is easy to proceed to a finding of no credible evidence of an employment relationship.

Defendant was saved from a whole world of pain in this case because the defense attorney was able to properly impeach the applicant-witness.  But, if you pull back the curtain here, you can see there was a lot of communication between the employer and the insurer.  The insurer probably didn’t have much interest in the Labor Board proceedings against the employer, but by all parties sharing information and working together, applicant’s inconsistent testimony could be properly laid out for the record.

Your humble blogger knows it takes extra time and extra money, and sometimes can be downright difficult to do – but while the employee and the employer is sorting out their relationship status (for the Facebook generation, that would be the “it’s complicated” category) the relationship between the insurer and employer should be solid, glowing, and one of trust and cooperation.

And no, dear readers, in case you’re wondering, Gina actually just needed to borrow your eraser – you can still see other people.

Have a good weekend!

Do you think Batman has workers’ compensation insurance?  What about Bruce Wayne?  If Bruce is at an event promoting Wayne Enterprises, and jumps into action to fight crime, would Batman’s policy cover the resulting injury or Wayne Enterprises’?

I direct your attention to the recent writ denied case of Roy Ceja v. City of Los Angeles, in which an off-duty police officer sought benefits from the City of Los Angeles for injuries sustained while restraining a suspected criminal while the officer was moonlighting as event security for Live Nation (insured by New Hampsire Insurance Co.)

The workers’ compensation Judge found that the injuries were sustained in the course of Officer Ceja’s activities as a police officer and not a private security employee, because the nature of the duties trumped the time and place of the events.

Here are the facts:  Ceja was employed as a security employee during a live performance put on by Live Nation.  During his shift, he followed a patron who had been previously removed but then returned to threaten some of the Live Nation personnel with a knife.  Ceja identified himself as LAPD and arrested the patron.  During the handcuffing, Ceja accidentally shot himself! (EAMS reflects the injured body part was the hands and/or fingers.)

It doesn’t matter that he was at the Live Nation venue, or that it was during his shift, or that his duties to secure the Live Nation event overlapped with his duties as an off-duty police officer.  When Bruce Wayne puts on the mask and switched to the lifetime-smoker-angry-growl voice, he becomes Batman, regardless of what else he was doing at the time or where he was.

The Judge reasoned that, Officer Ceja’s injury was sustained while off the premises (remember, he followed the patron after he left the event); Ceja identified himself as LAPD; and the actions were to protect the general public.  Finally, LAPD had conducted an investigation and paid Ceja from the time of the injury, through the time at the hospital and the interview with LAPD.

Could such reasoning be applied to non-peace officer occupations?  Imagine if Jill works for Widget Corp managing its online presence, responding to “tweets” and Facebook postings for the company.  While crossing the street and engaged in the service of another employer, she takes out her iPhone and replies to a “tweet” aimed at @widgetcorp, only be get hit by a car… is widgetcorp paying her benefits or the other employer?  What if the other employer is paying her by task and not by the hour, and she is on salary for Widget Corp?

Overlaping duties and multiple employment is a tricky issue, but the guiding light is usually shining from the basics: arising out of and in the course of employment.  Live Nation did not have any duty to protect the public, but only its patrons – those attending the performance.  Once the Sir Stabby Mcknife-a-lot let the premises, he was more of a danger to the public than to the concert attendants.

In any case, WCDefenseCA hopes that Officer Ceja has made a full recovery and continues to his brave and diligent service of the community.

What do you reckon, dear readers, is it harder to deliver mail or pizza?  A postal worker was recently sentenced to 90 days in jail, 5 years of probation, 310 hours of community service, and $157,173.12 in restitution after operating a string of pizza franchises.

Tiong C. Ong worked for the U.S. Postal Service as a tractor trailer operator when he sustained an injury to his back.  He then continued to claim he was unable to work and collected benefits, all the while operating a Dominos Pizza franchise, and participated in making pizza, taking orders, and doing deliveries.

After selling his business, he moved to Hawaii where he opened another Dominos, all the while collecting disability checks.

By the time this matter came to a close, he had wrongly received over $157,000.

How was this fraudster nabbed?

“The case came to light in January 2010, when a United States Postal Service human resources employee noticed that every time he visited the defendant’s home, he wasn’t there.”

Your humble blogger would call this diligent… but 17 years later?

In any case, perhaps we can learn something from this: without waiting 17 years, we should make sure that workers claiming to be disabled and unable to work are not self-employed or otherwise employed while cashing checks.

Perhaps in the life pension cases, it makes sense to set up quarterly checks – is the allegedly disabled worker at home during the day? During the evenings? Is there a Facebook page with a treasure-trove of information about recent activities?  Even if you’ve moved past the date to reopen and reduce the award, it’s not too late to seek criminal prosecution and the return of at least some of the money wrongly paid.

This past Saturday night, your humble blogger’s Facebook, text-messaging, and social media was focused on one topic: the verdict in a certain Florida trial.  Without stepping on that landmine of an issue, may I direct your still burning interest in criminal prosecution to a story of interest in the workers’ compensation community?

The California Applicants’ Attorneys Association has called for the criminal prosecution of a Sedgwick adjuster.  As far as your humble blogger can gather, the repeated denial of medical benefits, even in the face of several penalties and fines and Orders issued by a workers’ compensation Judge, led to a denial of care.  Ultimately, the applicant died as a result of an infection sustained during a surgery to treat the industrial injury.

If this should become a criminal case, we can expect a lot more facts and details to come out.  But the idea itself is a scary one – if the adjuster denies benefits of one sort or another, can he or she be criminally liable for the consequences?

What about the defense attorneys?   Perhaps the claims assistants can be charged with criminal conspiracy?

Your humble blogger held off on addressing this issue (note the article is from June) because a response from the Ventura district attorney’s office was a possibility.  As the DA has (very correctly) chosen to ignore this publicity stunt, it looks like we can all go about our daily affairs in safety… for now.

Bear in mind, dear readers, that CAAA, in making this display, had a single goal in mind – to try to scare the defense community.  There’s a monster under your bed, meanie adjusters, and he only comes out when you deny benefits!

The fact of the matter is that there are already penalties for unreasonable denial of benefits – the Audit unit can shut you down if you do too much wrong too often.  And, on top of that, there’s the monetary penalties ordered by the workers’ compensation Judges.

Note, dear readers, that there was no outrage on the part of CAAA for the physicians that exposed the applicant to an antibiotic-resistant staph infection during the shoulder surgery in the first place.  Nor is there any outrage on the part of CAAA when it came to national attention that California spinal surgery centers were maiming and crippling injured workers after sedating them with promises of quick recoveries.  (Recall, again, dear readers, it wasn’t the defense community leading the injured workers to the operating table).

The Romano case is tragic, it is heart-wrenching, and it is sad.  From a simple shoulder injury, an injured worker was paralyzed, mistreated, and ultimately died of an infection sustained while under the care of his surgeons.  Is it appropriate to compound the tragedy by seeking criminal charges against the adjuster?

Fortunately (and hopefully) the Ventura District Attorney’s Office has real criminals to focus its attention on.  Your humble blogger is equally hopeful that the same will be true of the other 57 California counties.