WCDefenseCA

So, dear readers, how are we feeling about the Independent Medical Review process?  It’s a coming pretty soon, and it won’t be long before the independent medical review board is handling all cases.

Under Labor Code section 4610.5, IMR is now the name of the game – no more medical disputes to be put to PQMEs, and just Utilization Review and the IMR to decide whether applicants get those medically-necessary hot-tubs and large-screen TVs to relieve from the effects of the latest paper-cuts and stubbed toes.

Now here’s an interesting question to answer: how enforceable is Labor Code section 4062.2, subsection (f)?  After all, that section says that “[t]he parties may agree to an agreed medical evaluator at any time, except as to issues subject to the independent medical review process established pursuant to section 4610.5.”

So applicant and defendant are sitting there looking at a UR report which recommends that authorization for a recommended medical treatment be denied.  In theory, this can go to the IMR, but what if defendant or applicant proposes an alternative – “Hey, Jerry, why don’t we write a letter to the AME and have him address this instead?”

Well, why don’t they?

Sure, section 4062.2(f) says they can’t… but who is going to stop them?  If the applicant agrees, and defendant agrees, whatever the result will be, the time for conducting the IMR process will have passed by the time the AME report comes back.  And, after all, if either party goes back on its word… well… workers’ compensation is a fairly small community, and one doesn’t get many opportunities to break a promise to the same person.

After the panel process was forced on the workers’ compensation community as part of SB-899, many parties (even for injuries after 1/1/05) retained their own QMEs, and many workers’ compensation Judges turned a blind eye… perhaps we can expect the same thing for years to come?

Believe it or not, there are still some old dinosaur cases roaming around that are using the pre-2005 dueling QME system.  Your humble blogger knows some attorneys that still long for the old days when QMEs were retained, armed to the teeth, and sent to battle to the death at the Board Thunderdome (two docs enter, one doc leaves!)

But now we live in more civilized times, where applicants still choose their own QME (in the form of a treating physician), and defendants much take their pick from the stacked deck of panel qualified medical evaluators.  Generally speaking, only Asbestos matters and pre-2005 cases allow each party to retain its own expert.  (Although your humble blogger has heard that some Judges used to allow parties to pick their own QMEs if the Medical Unit dragged big, Medical feet.)

Recently, your humble blogger, in his search for the latest and greatest case developments, stumbled across a rare gem going over the limits of the QME dance.  In particular, how much Earth is an applicant’s attorney allowed to scorch by finding new QMEs to run up defendant’s bill?  Can Goldilocks, Esq., send six bankers’ boxes of medical records to a new QME every two months until she finds one that is “just right?” (Or until the bills to the defense are “just right?”)

Not so much.  Applicant’s counsel went through three QMEs in the case of Larry Wiacek v. Fujitec America, and wasn’t too happy when the workers’ compensation Judge wouldn’t let him use the third’s report.  Relying on McDuffie v. L.A. County Metropolitan Transit Authority (2002, en banc), the WCJ held that applicant’s counsel could not simply bounce from QME to QME at the defendant’s expense, but had to follow a set procedure – which includes seeking supplemental reports, deposing the QME, and ultimately seeking Judicial assistance in finding a new medical examiner.

In the Wiacek case, however, applicant just picked a new QME and moved on, leaving a wake of unfinished reports and unjustified bills for the defendant to pick up.

The WCJ in this case allowed applicant to present the reports of the second QME because the first did not provide an AOE/COE determination, and then the case got weirder!  The second QME (and I remind you, dear reader, that naming names is disfavored in this little corner of the Internet), found exposure to coccidioidomycosis infection while driving between the Bay Area and Los Angeles during his weekends away from the job-site in L.A.  (This started out as an asbestos claim, but turned into a claim of “valley fever”)

The WCJ would not admit the reports of the third QME because applicant did not follow the McDuffie procedures before moving onto a third, and the second QME provided an AOE/COE determination.

The Workers’ Compensation Appeals Board denied applicant’s petition for reconsideration and incorporated the WCJ’s report.

Now mind you, dear readers, this case is important – there are applicant’s attorneys out there (and again, I won’t name names) who have a policy of costing defendants money: either through settlement or through litigation costs, those evil monsters who dare to employ someone in California are going to pay!  One way to do this is to drive up litigation costs: duplicative subpoenas, unnecessary document production to physicians and infinite supplemental report requests, and other tricks of a similar nature (no need to give people any ideas…)

It’s important to rein in such waste and the WCJ did a good job of it here.

As a side note, the WCJ also found that the injury fell under the scope of the going and coming rule, which is a pleasant result to see.

“Cheer up,” I told my brother-in-law, Jasper.  “Not all injuries sustained in parking lots are compensable.”  At that, Jasper seemed to rekindle the possibility of a parking-lot obstacle course and he began to listen closely.

For example, in the case of Jessica Rodgers v. Workers’ Compensation Appeals Board, an employee took a break from work to go to the bank.  She then returned to the work parking lot and arranged her money before stepping out of her car and returning to work.  In between her car and the building, however, a “biker,” who had followed her from the bank, attacked her and stole her money.

Even though the injury was sustained during work hours, between starting and finishing the day’s shift, and in the employer parking lot, the Court of Appeal held that the injury was not compensable because the cause of the injury was formed independent of any work-related activity – the biker just wanted to rob her, regardless of where she worked or who she was.

Likewise, in the panel decision of Basil Perkins v. City of Los Angeles, the applicant, a city animal control officer, was shot while napping in his work-vehicle, while parked in the employer-owned lot, and wearing his uniform.  As his home was over 130 miles away, he made a regular practice of napping in his car after a shift had ended.

Initially, the workers’ compensation Judge found the injury compensable, but the Workers’ Compensation Appeals Board reversed, finding the injury was not compensable, as the shift had ended, and the employee was only in the parking lot for his convenience.  In other words, the scope of employment cannot be artificially extended by dallying on the employer’s premises.

The same occurred when a worker arrived to work too early, as in the writ denied case of Paul Grove (Dec’d), Sharon Grove (Widow) v. Miller Coors, LLC. In that case, the employee had arrived to work early and had used the restroom at work less than two hours before the start of his shift, when he sustained an injury in the restroom.  There, the workers’ compensation Judge found the injury to be non-compensable.

Fortunately, Jasper never got to try out his obstacle course idea – the wheel barrel industry took a down-turn, and he decided expanding beyond his garage was not a good idea at this time.  Regardless, here are some take-away rules:

1. Arriving at an employer-owned or provided parking lot begins the scope of the employment relationship and ends the commute, so long as the arrival is within the regular time for employment.
2. If travel to the employer or the employer’s parking lot presents a “special risk” to the employees, then the time during which the employee is exposed to the risk will not be barred by the Going and Coming Rule.
3. Injuries sustained in an employer-provided parking lot are subject to AOE/COE analysis, so injuries sustained for reasons unrelated to work, such as robberies, will not be compensable, unless the special risk doctrine applies.
4. Whatever the liability for workers’ compensation, the “Going and Coming” rule is not subject to the premises rule for civil liability and respondeat superior, as found by the Court of Appeal in Dean Hartline v. Kaiser Foundation Hospitals.
5. Do NOT invest in the wheel-barrel market if the president of your company is busy planning an obstacle course for his employees trying to get to work.

 

Employees sometimes drive to work,
And then they find a parking spot,
Sometimes on a busy street,
Sometimes in a parking lot,
But injuries can still occur,
Between their cars and the front door,
And who will pay for slips and falls,
Will always be the Judge’s call.

Such is the nursery rhyme sung to children of applicants’ attorneys and defense lawyers in the dark and murky world of California workers’ compensation.

This issue came up recently while I was having lunch with my brother-in-law, Jasper.  Jasper had been doing well recently in the wheel-barrel industry, and wanted to expand his operations from his garage to a real factory.  He invited me to lunch to present me with some exciting investment opportunities in the wheel-barrel industry.  Currently, Jasper had his eye set on one location in particular because it came with a parking lot.

His plan was to set up a series of obstacles in the parking lot, in the hopes that the employee with poor agility and balance would sustain injury outside his factory and shield him from workers’ compensation liability.  Thus, only the workers that could swim faster than sharks, swing over quick-sand pits, and tight-rope over mine-fields would actually make it to work.

Without getting into issues of Serious and Willful Misconduct, for those readers out there that aren’t Jasper, when you’re facing a claim of injury in or near a parking lot, are you on the hook?  Let’s start with the basics.

In order for an injury to fall within the scope of California’s workers’ compensation system, as opposed to general civil tort, the injury must arise out of and occur within the course of employment.  (See Labor Code section 3600.)  This is commonly referred to as AOE/COE.  Generally speaking, injuries sustained during the regular commute to or from work are not compensable, unless they fit into one of several exceptions.

But what about that last stretch of travel, between the car door and the building door?

In the case of Lewis v. WCAB, Lewis parked in a lot leased for employees.  Walking down the street to her office, three block away, she fell.  In finding the claim compensable, the Supreme Court reasoned that there is a “reasonable margin of time and space necessary to be used in passing to and from the place where the work is to be done” included within the scope of employment.

The Court went further, noting that once the employee enters the premises under the control of the employer, including employer-owned parking lots, the commute has ended and the scope of employment has begun.  (See Santa Rosa Junior College v. WCAB, footnote 11.)

By providing an employee parking lot, Jasper could very well find himself increasing his liability with every square foot of parking under his control.

At this, Jasper got nervous and decided his plan would have to be changed.  Instead, he would have his employees park on the street and use the entire lot for more obstacles.  After all, he read an article in Wheel Barrels and Workers’ Comp., a very limited-circulation magazine which only exists in this story, which discussed a similar idea.  There, the article’s author discussed two cases.

The first, an unpublished decision by the Court of Appeal, was Sharp Coronado Hospital v. WCAB.  There, the Court held that an employee asked by its employer to park on the street instead of the parking lot was precluded from recovering for an injury sustained while walking from the employee’s parked car to the hospital.  The other, General Insurance Co. v. WCAB, held that an employee struck while crossing the street from his parked car to work could not recover because of the going and coming rule.

Furthermore, he had heard his friend, an applicants’ attorney, grumbling about the panel decision in the case of Sharon Ewegemi v. Oakland Unified School District.  In that case, he understood, a teacher had parked her car on the street and was just a few feet from the door of her school when she turned back to get some papers from her car.  Walking to her car, she tripped and fell in the street.

In denying her application, the Workers’ Compensation Appeals Board reasoned that, until she entered the school and began working, she was still engaged in her commute, even up to a few feet away from the school.

Jasper’s new plan could put all this into use, he though, by having his employees cross the obstacle course before entering the front door.

Now, bear in mind, dear readers, this is my brother-in-law, so things had to be stated delicately, or else every Thanksgiving Dinner would include Jasper mumbling about how he hopes I come see his snake-pit.  So, I had to explain that his new idea wouldn’t exactly work, either.

Why wouldn’t Jasper’s idea work?  Come back Wednesday to find out!

On Tuesday, your blogger expressed sympathy in reporting the town of Isleton, California, which lost its police department because it could not afford workers’ compensation insurance.  Today, that same blogger reports with outrage the stories coming out of Bell, California.

Bell, California, made news some time ago when it was discovered that its city officials were looting the public treasury, voting for high salaries for themselves at the expense of the city’s tax payers.  The city became even more (in)famous after being mentioned by this (someday will be) widely-read blog.

As the L.A. Times reports, “[m]ore than half of the disability retirements awarded to police officers under former Bell City Administrator Robert Rizzo – including those given to three police chiefs – should not have been granted, and workers’ compensation settlements for 13 officers were ‘exceedingly large.’”

Bell, which is self-insured for workers’ compensation, pays the extra awards out of its own withering pockets.

Bureaucracy allows these cases to fall through the cracks, and local governments such as cities and counties must be especially careful to make sure undeserved workers’ compensation awards are not handed out as a bonus or going-away present to law enforcement officers.

But the same rule applies to private self-insured employers and insurance companies as well – it not uncommon for employees to attempt to pad their retirement accounts with un-taxable workers’ compensation pay-outs on the way out the door.

When the citizens of Isleton ask why they can not have a police department, perhaps the citizens of Bell can provide them with an answer.

Jack and Jill fall in love and get married.  Jill hurts herself coming down the well and makes a Workers’ Compensation claim.  Because Jill fell in 1992 and this occurred under the California Workers’ Compensation system, this was going to be a long, drawn-out affair.

Jill’s injury left her unable to work, and, in 2002, she received a lump sum award of just over $172,000 (after her lawyer was paid).  In 2005, Jack and Jill decided to go their separate ways, but there was some dispute as to how, exactly, they ought to split the sheets.

Jill, of course, maintained that the Workers’ Compensation award was her separate property!  Jack, on the other hand, claimed that it was community property and should therefore be split between them, in accordance with Family Code § 760.

So what is the right answer?  Are Workers’ Compensation benefits community property?  Or do they stay with the injured spouse?  That was the issue in the case of In re the Marriage of Flora S. and George L. Ruiz (2011).  [Practitioners, be careful – not all parts of this case are certified for publication.]

The trial court held, and the Court of Appeals affirmed, that the portions of a lump-sum Workers’ Compensation award that are meant to cover out-of-pocket expenses for medical treatment and to replace the lost earning capacity during marriage are community property.  The rest sits comfortably in the injured spouse’s pockets.

But here’s the catch – the burden of proof lies squarely on the injured spouse to prove that this property is separate.  Without some proof as to how the lump sum was calculated, the injured spouse is out of luck.  Otherwise, the Family Code presumption kicks in and the community wins.

The implications of this case are something to look out for when the injured worker wants to itemize his or her benefits award (Yes, I’ll waive reimbursement for medical treatment if you note in detail that all benefits are for lost earning capacity…)

Your humble blogger’s readers are not only the best informed, but also the most patient and quickest to forgive. No doubt, that is why they tolerate these endless streams of self-promotion and shameless self-advertising from the humble blogger.

To that end dear readers, if you don’t have particularly important plans at 10:00 a.m. Thursday, September 22, 2022, perhaps you will join us for a webinar on the going and coming rule and work-from-home injuries?

Please register here!

As a special deal only for my beloved readers (and literally everyone else in the world), the first 1,000 registrants will get a free subscription to WCDefenseCA!

Your humble blogger would be grateful for your attendance and looks forward to your thoughts on the presentation.

Happy Monday, dear readers!  Did you miss me?  I kept wanting to write a new blog post for you, but each time I got started a new e-mail would come in commending me on Mr. Chris Pratt’s face on the front page and asking me not to take it off.  Well, the time has come, dear readers, to move on to the next big thing.

Have you ever mentioned to someone that you are in the world of workers’ compensation, only to be peppered by employment law questions?  Well, get ready for a little bit of that.

The California Supreme Court issued an opinion this month in the case of Frlekin v. Apple Inc.  Therein, the Supreme Court held that “time spent on the employer’s premises waiting for, and undergoing, required exit searches of packages, bags, or personal technology devices voluntarily brought to work purely for personal convenience by employees compensable as ‘hours worked’.”

If this sounds familiar, perhaps you recall this earlier blog post by your humble blogger.

So what’s the set-up?  Apple requires employees to go through security checks on their way out, whether at the end of their shifts or if they are just going out for break.  This allows Apple to make sure none of its dedicated employees have had products normally for sale “accidentally” fall into their bags.  This is a method of preventing “shrinkage”, loss, or employee theft (however one might call it).

But, understandably, the budget for security in this sense is limited, so employees often find themselves waiting for extended periods of time just to pass through the security and leave.  Well the issue at hand is whether that time spent going through security is “work” or “not work.”

The Supreme Court decided that it is work.  So, time spent in security check points is compensable for wages, affects average weekly wages, and any injuries sustained while going through security would likely be compensable as well. 

So what does that mean for us, dear readers?  What are we, the brave denizens of workers’ compensation, to make of this ruling from the Supreme Court?  Well, there’s nothing good in this, that’s for sure!

In my estimation, at least, this opens the door for a wide spectrum of activities undertaken to comply with an employer’s procedures.  Workers’ can make the argument that time spent in compliance with basic procedures that would logically fall under the “going and coming” rule and exclude compensability are now part of the work day. 

We’ll see, of course, how this ultimately plays out, but perhaps we can look forward to colorful theories being advanced about why the employer putting a nametag on at home before leaving for work is part of the work day, or why the injured worker’s commute-related injury is industrial because he was thinking about work when he T-boned a third party.

At least we won’t be bored, right?

If you ask an applicant attorney about the “going and coming rule,” 9 out of 10 will tell you “oh yeah, it means you’re going to find this claim compensable, and I’m coming for your money!”  Well, probably not, but, maybe after this blog post, they’ll start saying that.

The going and coming rule stands for the premise that employees engaged in their commute to or from work are not “working” yet, and so injuries sustained during the commute are not industrial (nor is harm done to third parties the liability of the employer via respondeat superior).

However, the exceptions are many to this rule, such that it’s barely a rule at all, but more of a notion.

That’s why it’s always so refreshing to see the rule used to bar a claim.  Such cases are the carrots seen in an ocean of sticks.  Thus, dear reader, your humble blogger respectfully submits for your consideration the case of Lapesarde v. State of California, Department of Corrections, which was recently denied review by the Court of Appeal.

Applicant, a nurse, was involved in an MVA while driving home from work.  Nonstarter, right?  Going and coming; coming and going; open and shut case.  Well, if that were so, what would I write a blog post about?

Applicant argued the claim was not barred by the going and coming rule because of the “special mission” doctrine.  That is, when an injured worker must go on a “special mission,” one that does not apply to the regular commute, the going and coming rule does not apply.  The special mission (should you chose to accept)?  Applicant worked his regular shift from 6am to 2pm, and then worked a second shift from 2pm to 10pm.  After this second shift, applicant spent 30 minutes in the car and drove home, stopping for gas and coffee so that he could stay awake for his 90 minute drive.  He woke up in the hospital after his MVA with no memory after that pit stop.

So, what do you think, dear readers?  Was the shift a “special mission” or was the regular commute but at an irregular time going home just your typical going and coming?

Well, the WCJ at the trial opined that the claim was compensable, and defendant appealed.  In addressing defendant’s petition for reconsideration, the WCAB panel considered the “special risk” rule, which “states that if a condition on or off the employer’s premises creates a special risk of harm to an employee who is about to enter or who has just left the premises, the injury is within the course of employment.”

However, the “special risk” theory was rejected by the WCAB because applicant made it to a gas station for a stop, and was not exposed to any risk that the general public did not face, a test that can defeat the “special risk” theory exception to the going and coming rule.

In reviewing the WCJ’s opinion, the WCAB specifically rejected reasoning that “applicant was fatigued when he left work and started his drive home.”  The WCAB’s reasoning instead turned on the fact that “applicant was driving on the road on his usual commute in his personal vehicle.  Nothing in that route that he drove or the conditions that he experienced was any different than any other driver on the road at that time.”

Based on this opinion, it would appear that being particularly tired from overtime does not defeat the going and coming rule by itself.  Nor does the change in time to an additional shift following a regular shift defeat the defense either.

Do you think the same result would be reached if applicant had some in for a second shift rather than stayed at work to do a second shift?  Would coming in for an irregular shift at the regular location have been enough to make this a “special mission”?  Are there any job duties that might make a worker particularly susceptible to a “special risk”, such that driving might be particularly dangerous as compared to the dangers visited on the public?

Let me know your thoughts dear readers – I have plenty of pennies to share.

Happy Monday, dear readers!

Those of you not in the bay area might not know about our Thunderstorms, but they sure are a thundering ever since last night.

Thunder and lightning are, over all, rare in these parts, unlike the going and coming rule, which pops up with some regularity in the workers’ comp world.  Monday morning, in particular, is a very dangerous time to be confronted with the going and coming rule, as workers injured over the weekend seeking to pin the bills and the lost time on an employer tend to get “hurt” in the company parking lot on Monday morning.

But, aside from that fine line where the worker goes from “commute” to “working”, we also have the “special mission” doctrine, which tends to put the whole work shift in the crosshairs of the workers comp world.

Such was the case in the matter of Estel v. LA County Metropolitan Transportation Authority, a case that was recently denied review by the Court of Appeal.  (I guess the defense arguments weren’t very… wait for it… appealing!  See what I did there?)

So, what happened in Estel?  Applicant had some pretty serious injuries that were sustained following a motorcycle accident traveling from a week-long training session at his employer’s request.   Applicant was used to the night shift, but the training was held during the day.  Although the hours were different and the duties were going to be different once he got there, the route and commute were to be the same.

So, the WCJ found that the claim was barred by the going and coming rule: applicant was on his way to perform his duties, but the route and commute were the same, so a shift in time and a shift in duties (once he got to his work station) were not sufficient to qualify for the going and coming rule exception.  But the WCAB reversed, finding that applicant’s changed shift coupled with his changed duties (again, once he got to work) were sufficient to qualify for the exception.  The Court of Appeal did not think the Estes case was “special” enough and denied review.

Ok, so if you followed the link on the “special mission” doctrine above, you’ll note the prior blog posts where the special mission exception to the going and coming rule was discussed.

The case and blog post that springs to mind is that of Lantz v. WCAB, which a 2014 Court of Appeal decision.  Therein, the COA ruled that not only is an extra shift (in other words, unusual work hours) not sufficient to qualify for the “special mission” exception to the going and coming rule.  Furthermore, the Court of Appeal specifically rejected the theory that “liberal construction” of the law is to be applied in cases where AOE/COE has already been found and not before.

Here’s where I’m having trouble following the logic in the Estel decision, though.  Applicant had not yet begun his new duties the day of his injury.  He was on his way to the training that, presumably, had not started yet.

Now, it makes perfect sense to raise the element of different job duties when the injured worker is returning from work – the fact that the job duties were different would understandably be more taxing on a worker than his or her routine work and would, understandably, make the commute home more dangerous.

However, why would the same effect apply when he had not yet begun these new job duties that day?  The route is the same, and the different shift, as per the Court of Appeals in Lantz, does not qualify for an exception to the going and coming rule.  The fact that applicant was going to do things that day that he doesn’t usually do, would then be the key element to determining that the injury was compensable.

Since the “special mission” test is a balancing act, it seems that the weight should have been in favor of the defense in this case, at least to your humble blogger.  But, then again, to your humble blogger, the weight should always be in favor of the defense.