WCDefenseCA

Happy Monday, dear readers!

Are we refreshed? Are we relaxed? ARE WE READY FOR WORKERS’ COMP?!?

I know, I know, dear readers, me neither…

Monday mornings are certainly made bearable with a cup of coffee in hand… but wouldn’t a glass of wine make them more enjoyable? Speaking of wine, I present to you the recent panel decision in the matter of Ostini v. Alma Rosa Winery & Vineyard.

Applicant was a hostess in a wine tasting room and sustained an injury when she drove home from work on April 5, 2008 and was in a car crash.  The application was filed on February 6, 2013.  That’s right, dear readers, well within five years from the date of injury, but well after 1 year.

Defendant asserted a number of defenses in rebuffing the claim: statute of limitations under Labor Code section 5405, AOE/COE (presumably citing the going and coming rule), and the intoxication defense of Labor Code section 3600(a)(4) (applicant testified that drinking wine at work was “allowed” but we never get to find out if the employer’s acceptance of an employee drinking on the job somehow translates to being liable for injuries sustained while driving home).

The WCJ ruled that the statute of limitations does not bar the claim because the statute runs from when “the applicant attains knowledge that the injury is industrial.”  The panel, however, reversed, stating that “knowledge of industrial causation is not relevant to the date of injury for specific injuries.”  Tolling could have occurred if applicant had advised her employer of the injury and the employer failed to provide a claim form, but there was no evidence in the record that applicant ever told her employer about the injury.

The WCAB further disagreed with the WCJ’s reasoning that defendant suffered no prejudice as the result of the delay in filing a claim, and thus the statute of limitations could not be raised.  “Unlike the doctrine of laches,” the panel opined “there is no requirement of prejudice for a defendant to invoke the statute of limitations.”

This is an interesting point to your humble blogger: first and foremost, defendant certainly did suffer prejudice in a nearly 5-year delay of filing a claim.  Defendant has lost all rights of medical control and all benefits of medical observation for the period between the date of injury and the date of filing.  Any number of injuries or conditions could have occurred over those five years that would have aggravated or even subsumed applicant’s auto-crash related injuries. 

Furthermore, five years is a long time to expect evidence, whether physical evidence or witnesses, to stick around.  An employee-witness on the night of the injury might be a disgruntled ex-employee five years later!

The WCAB ruled that the claim was time-barred, reversing the WCJ.  Though it took nearly 8 years from the date of injury – a take nothing is a take nothing.  I’ll drink to that!

Hello, dear readers!

I welcome you to “hump” day Wednesday with a published Court of Appeal decision on the topic of going and coming.  As my readers will recall, this blog has had occasion to touch on this topic before, and the rule itself has riddled California tort and workers’ compensation law since the first lawyers emerged to torment civilized society.

The case in Schultz v. WCAB, where Mr. Schultz was employed by Joint Test Tactics and Training as a technical drafter at Edwards Airforce Base in 2010.  The Court of Appeal held that a civilian contractor had finished his commute and started working when he entered the general air force base by passing through a security gate not open to the public, and not when he would have otherwise arrived at the building where he performed most of his work located inside the base.

Your humble blogger was able to secure some footage from the base, although the accident itself was not captured on video:

Apparently, on the date of the injury, applicant was to report to Building 1440 to commence work.  Although defendant argue that applicant had not reached the premises line of where he was to start working because he had not yet reached Building 1440 when the injury occurred, applicant argued the premises line should be identified as the border of the Airforce Base, but also that applicant’s occasional use of his personal vehicle for work should constitute the entire commute as exempt from the going and coming rule.

At trial, the WCJ concluded the injury was compensable because applicant testified to having to work, on occasion, at different locations within the base, and because applicant was using his personal car to get to, around, and from work.  “[I]f the commuting employee uses a method of transportation that benefits the employer by facilitating the employee’s work, an injury during the commute may be compensable where the employee’s use of the vehicle although not expressly or impliedly required by the employer was an accommodation to the employer.”

Defendant sought reconsideration, arguing that the going and coming rule should bar compensability.  The WCAB agreed with defendant, reasoning that “[t]he problem with the WCJ’s analysis is that it focuses on how the employer might possibly benefit by having applicant bring his car to work instead of considering why applicant was in his car on [the DOI] and what he was actually doing at the time he crashed.”  To wit, at the time of the injury, the car was not being driven for any purpose other than a commute.

So, the Court of Appeal took a completely different take.  The COA focused on the fact that work was done mostly in Building 1440, but also around the base.  Furthermore, applicant’s access to the base was granted only because he was an employee of the defendant.

In effect, applicant argued, the entire base was the employer’s premises.  “Because [the employer] controlled Schultz’s access to Edwards [Airforce Base], and [applicant] worked through the base on assignments, he was on the premises of his employer once [applicant] entered Edwards [Airforce Base], and his injury was compensable.

So, dear readers, what do you think – next stop: Supreme Court?  Your humble blogger thinks this may be the end of this case, but who knows?

It’s the holiday season, dear readers!  Channukah; Hannukah; Hanukah; the Festival of Lights, Christmas, New Years, and, of course, Festivus!

And, in the holiday spirit, your humble blogger brings you the case of Bitkarim v. Edible Arrangements.  Therein, applicant sustained an injury while on the way home from work.  Now, I know what you’re thinking, dear readers, “going and coming rule” right? Obviously, door-to-door doesn’t get you a workers’ comp claim.  Well, applicant had an interesting theory to defeat the going and coming defense.

During the Christmas season, Edible Arrangements, at least according to applicant, had employees working lots and lots and lots of overtime, to the point that exhausted employees got into car accidents on the way home.  In fact, after working overtime (“near doubling of the applicant’s normal shift duration” applicant was left “tired, apparently to a much greater degree than her normal shift.”)  The theory, according to applicant, was that these extra hours left applicant “unable to come to a complete stop due to her tired feet” resulting in an auto collision, and applicant’s injuries.

As we all know, the going and coming rule has exceptions… and lots of them.  One of them is the “special mission” exception, which provides that that when an injured worker is assigned to a special task, typically at a different location or at different hours than the usual job, going to or coming from the special assignment, and any injuries sustained during the commute tend to be compensable.

So, applicant in this case argued that the extra hours were a “special mission” and resulted in the exhaustion that caused the collision.  After all, how could you deny such an argument around Christmas time…?  What kind of a Grinch of a defense attorney would try to resist such a claim…?

Well, the WCJ was not persuaded.  Applicant testified to often working overtime around the Holiday season, including around Christmas time.  The WCJ opined that “[a]pplicant working overtime at the time of the injury on 12/15/2008 is not extraordinary or in any way outside of the normal course of business for this employer… [i]n fact, it appears to be rather expected.”

Applicant also argued that Labor Code section 3202 and the “liberal construction” provision of the same, requires a finding of compensability, or at least of the “special mission exception” being applied.  The WCJ disagreed there as well, finding that applicant’s frequency in working overtime and being tired negated the “special” component of the “special mission” exception.

Although not mentioned in the WCJ’s report, it should be noted that the Lantz case, a Court of Appeal decision effectively held that the “liberal construction” provision of 3202 does not apply when AOE/COE has not been established.  So, when AOE/COE is in question and has not been established, liberal construction has no more place than conservative  construction, communist construction, or even libertarian construction (where buildings are made out of marijuana and privately constructed roads).

The WCAB adopted the WCJ’s report and the Court of Appeal denied review.

From the bottom of my cold, hard, barely-human defense attorney heart, I wish my beloved readers, from the frequent commenters to the silent lurkers, and everyone in between, a very Merry Christmas and a very happy New Year!

After Wednesday’s post, this humble blogger was flooded with requests, suggestions, demands, and even threats – all urging another post on the going and coming rule.  Who am I to deny all of these imaginary readers what they want?

But this one – this case for you to hold and cherish for the duration of your weekend – comes from the Court of Appeal: it is, of course, the matter of Lantz v. WCAB/SCIF.

Applicant Lantz was a correctional officer who was tragically killed after a car crash on the drive home from work.  Now, this would not be a blog post if we could simply say “going and coming rule – take nothing!”  The facts in this case complicate the matter to the point where the Court of Appeal felt an opinion was warranted.

Applicant was not just driving home from work on any day – he was required to work an extra shift after his regular shift.  So, while he would normally be commuting home, he was working and when he would normally be home and not working, he was driving home.

The question is whether requiring an employee to work an additional shift at the same location, constitutes a “special mission” so as to defeat the going and coming rule.

The Court of Appeal recognized the special mission exception, but also noted that the special mission exception requires (1) extraordinary activity as compared to routine duties; (2) AOE/COE; and (3) activity was undertaken at the express or implied request of the employer and for the employer’s benefit.

Using this standard, the COA readily conceded that prong 2 and 3 were satisfied – working an additional shift is, no doubt, within the course of the duties of the employee and the activity was mandatory- required by the employer for its benefit.

On the other hand, the first prong is not so easily satisfied.  Is working another shift truly extraordinary?  The test is whether the location, nature or hours of the work to be performed deviates from the norm.  In this case, the COA deferred to the WCAB’s determination that the extra supervisory duties that may come with this particular shift did not rise to the level of extraordinary.

Of interest here is the ready recognition by the Court of Appeal that it is possible that a sudden change in work hours would be extraordinary duty.  The image comes to mind of a deputy suddenly yanked from dispatch to work intake and processing, or a maître de asked to help unload a truck.

One other nugget to consider here:  the Court of Appeal addresses the argument oft cited by lien claimants, applicants’ attorneys, and crazies roaming the streets of San Francisco: “Liberal Construction!”  No, no, dear readers, this isn’t in reference to a bunch of long-haired college hippies building houses out of recycled milk bottles, but, instead, a quote from Labor Code section 3202: “This division and Division 5 … shall be liberally construed by the courts with the purpose of extending their benefits for the protections of persons injured in the course of their employment.”

Ok, calm down, dear reader – I know you’re pounding your keyboard and thinking “why is Greg wasting my time with this? I’m not running a prison, why is this case relevant?”  Well, here it is – the nugget you can take to every case in the workers’ comp system that is set for an AOE/COE trial.

“The policy of liberality is predicated upon there being a person who is ‘injured in the course of [his or her] employment’ and therefore, when given its plain meaning, does not aid in deciding the threshold question of whether the employee was injured in the course of his or her employment.”

So, the next time there is a question of whether the injury is compensable at an AOE/COE trial, any effort to use the liberal construction language of 3202 to lower the standard of proof the applicant must otherwise meet, Lantz should be at the ready to negate the argument, as a citeable, binding, published decision.  Have a good weekend!

Happy Hump Day, dear readers!  The weekend is almost in sight, Monday is a distant memory, and in a short five hours, you will be over the “hump” of yet another week in the wonderful world of workers’ compensation.

Now, I know what my beloved subscribers, twitter followers, and random google search visitors (who keeps googling “humble logger”?) are all collectively thinking: “I am so desperately craving a blog post on the going and coming rule – that’s my favorite rule of all! Don’t disappoint me, Greg.”

For those not in the know, the going and coming rule basically sets a giant wall between coming to (or from) work and work itself.  Like all good rules, this one is riddled with giant exceptions through which elephants can comfortably march in rows of four, but in certain instances it kicks in to shield the employer from liability.  And, as you know, it’s not just workers’ compensation liability, but also liability to third parties caused by the negligence of employees.

So, I bring to your attention the recently writ denied case of Aguilar v. BHS Corrugated North America.  Therein, a worker gingerly hopped into the employer’s rented car to go off-site for an unpaid half-hour lunch break with a co-worker at the wheel.  As you can imagine, on the way back to work applicant sustained an injury and filed a claim for workers’ compensation benefits.

The matter proceeded to an AOE/COE trail, and the WCJ was persuaded by applicant’s position – a benefit was conferred to the employer by having the driver-co-worker have a car available, which was used for personal and business reasons.  Defendant sought reconsideration (as defendants often must).

In a split panel, the WCAB granted reconsideration, reasoning that the “lunch rule” rendered this fact scenario one that leads to a take-nothing order.  Of special interest here is that the WCAB majority rejected the argument that the fact the employer rented the car for the co-worker-driver to use makes this compensable because, the argument itself would lead only to the conclusion that, hypothetically, the driver might have a compensable claim.  “[T]he applicant’s personal decision to travel off premises in that rental car as a passenger during an unpaid lunch break did not render service to the employer and, therefore, did not grow out of or was incidental to employment.”

Had this been a split panel decision which favored the applicant, I would of course, at this point, make mention of the fact that if you want to know what really happened, you should read the dissent.  Being a hopelessly biased defense hack, I have no need to make mention of such a frame of analysis.

The dissenting opinion pointed out what are, in your humble blogger’s estimation, fairly relevant facts: the lunch was at the insistence of co-workers applicant considered his supervisors; the lunch was spent discussing work matters; the lunch was paid for on a company card.  In short, it is a reasonable interpretation that the employer was receiving benefit from the employee’s presence in the car and attendance at the lunch.

Now, a panel decision makes for weak authority before a WCJ, and a split panel makes for even weaker one, but it is interesting to get this peek at the surgical distinction the going and coming rule often calls for, and the continued evolution of this law.
Chins up, dear readers, Friday is just around the corner.

What happens if you see your employee is about to get hurt, and you immediately fire him before the injury occurs?  Can you avoid workers’ compensation liability?  If a worker falls from a high platform, can his employer shout “you’re fired” before he lands?

I know those two are silly examples, but what about this one: If you fire your employee, and he gets hurt on the way home, are you somehow on the hook?

Consider, if you will, the case of Jose Medel v. Charter Communications, Inc., a recent writ denied panel case.  Mr. Medel was employed as a technician by Charter Communications, and used the company car to drive to and from work, and to drive out to the homes and businesses of Charter clients to install or maintain their phone and internet connections.

One fine day in April, he was summoned to the Human Resources office, where his employment was terminated.  His company car keys were taken, as were his company cell phone and ID badge.  Chartis then arranged for Mr. Medel to be taken home by Town car.

Unfortunately, the car’s driver lost consciousness and in the resulting car accident, the driver was killed and Mr. Medel sustained injury.

In resisting the claim, Chartis argued that Mr. Medel was no longer an employee by the time he got into the car for his drive home.  Chartis also raised the argument of the going and coming rule – after all, Mr. Medel was on his way home and no longer providing service to his employer.

Both defenses were soundly defeated.

Relying on Shoemaker v. Myers, a 1990 California Supreme Court Case, the WCAB noted that “the employment relationship continues for a reasonable time after its technical termination in order to effectuate an orderly termination of the relationship.”  Even after the magic word “you’re fired” are said, the spell does not immediately take effect.  In all likelihood, once Mr. Medel had made it safely home, the relationship would have been at an end, assuming there was no phone call asking him to come pick up a final check or his personal belongings.

Because of the terms of the employment, Mr. Medel found himself stranded at his employer’s premises, without a car or a phone.  It would be interesting, though, to see what result we’d have if Mr. Medel had turned down the offer of the ride, and had called a cab instead.  Your humble blogger would argue that the self-procured cab ride home may have terminated the employment relationship, whereas the employer-provided transportation failed to do so.

The WCAB also rejected the “going and coming” rule because of the patchwork of exceptions.  Mr. Medel was technically engaged in a special mission by going to the HR office, and was thereby covered by workers’ comp until the mission was over (his arrival at home).  Additionally, employer-provided transportation like a bus, carpool, etc., typically provides yet another example of the going and coming rule’s limitations.

As many employers have learned the hard way, liability for the actions and the injuries of employees does not end so abruptly as uttering the magic words of “you’re fired.”  One of your humble blogger’s former employers, long, long, before he became an attorney, would make sure that a fired employee would be escorted from the premises, to avoid intentional falls and injuries.

Just another thought, though – why would you want to have workers’ compensation bar this claim?  Imagine, if you will, that Mr. Medel’s claim was defeated by the defenses discussed above: he would then seek damages in tort against Chartis, with much higher litigation costs and much larger (potential) verdicts.  But, again, perhaps this is an area where not all defense interests are aligned.

Be wary of the advice you take, dear readers.  Free advice, especially, tends to prove the most expensive.  Recently, your humble blogger read of a certain private security company getting into hot water for failing to insure for workers’ compensation.

The owner was allegedly advised by his accountant that he wouldn’t have to provide workers’ compensation insurance for his employees, if they were independent contractors (instead of employees).  Unfortunately, the company owner took this advice without consulting an attorney, or even wondering why anyone would ever hire an employee instead of an independent contractor.

Hired to patrol a portion of Salinas, the employer was fined and is in a bit of trouble now, although there is no available information as to whether someone actually filed a workers’ compensation claim.  The silver lining, as far as your humble blogger can tell, is that no one got hurt, and no injured worker will be left in the cold.  Being an illegally uninsured employer is not a pretty picture by any means.

In the recent case of Oscar Ornella Castaneda v. Happy’s Mobile Car Wash, a worker actually did get hurt and the employer didn’t have insurance.  Mr. Castaneda was involved in a car accident while riding in the employer’s truck on the way to a job site.  Happy’s Mobile Car Wash tried to argue that Mr. Castaneda was an independent contractor and that the injury was sustained while in transit to work, and so was not compensable under the going and coming rule.

Well, Happy’s wasn’t very happy after the trial, and the workers’ compensation Judge didn’t have many happy things to say about it either when Happy’s petitioned the Workers’ Compensation Appeals Board for reconsideration.

The arguments were quickly dispatched – there was no basis to conclude that applicant was an independent contractor when he was paid a set salary every week and he performed his job duties under near total control of the employer.  The going and coming rule did not apply because applicant reported to Happy’s place of business and then rode in the company truck to the specific job site.  The fact that he rode in the company truck at all would have negated the going and coming rule, even if coming from home.

Neither the WCAB nor the Court of Appeal bothered to write an opinion on this case, and Happy’s saw its defenses wash down the drain (like at a car wash? Get it?)

California comp rates are expensive, and it’s constantly becoming harder and harder for businesses and employers.  When you’re trying to make ends meet and keep the lights on in your business, it can be very tempting to save the money on a comp policy and apply it to things like inventory and wages and maybe bringing home some profits once in a while.  After all, your employee agreed to be an independent contractor, and what could possibly happen on such a safe job, right?

Don’t do it.  Even if you get lucky for years upon years, sooner or later someone will get hurt or a disgruntled employee will lie and say he did.  If you’re a small business, the Board can be a cold and unforgiving place without the protection of an insurer, with its sharp adjusters and crack team of attorneys (such as your humble blogger).

Trust me – you can’t afford to take the free advice.

By now we’re all familiar with the going and coming rule, and also its exception of the “commercial traveler.”  A commercial traveler is one that is on a trip for business purposes (think conferences, special projects, recruiting events) and is thereby taken away from hearth and home, sometimes for days at a time.  When an employee is a commercial traveler (not to be confused with a Travelers commercial) it is generally considered that he or she is always on the clock, and therefore the going and coming rule does not apply.

Enter the case of Antonio Parvool v. Tony’s Food Service (coincidentally insured by Travelers).  Mr. Parvool, the poor, unfortunate man, had the difficult job of going to Hawaii to assist in providing catering services to movie production crews.  While he was not handing out whole-wheat extra-thin bagels to movie stars, he got to enjoy the surrounding area, including the employer-provided hotel and swimming pool.

Despite your humble blogger’s valiant efforts, workers’ compensation Judges in California are reluctant to grant change-of-venue motions to Hawaii – some nonsense about state jurisdiction.  Rest assured, when your humble blogger is finally in charge, workers’ compensation trials will be held on the beaches of Hawaii in casual attire, and applicants will immediately realize there is more to life than hounding an employer over a paper cut.  Objections will be made with Mai-Tai in hand, and all permanent disability indemnity will be paid in macadamia nuts.  Someday…

Having spent too much time around action movie stars and their stunt doubles, applicant decided to dive head-first into the shallow portion of the hotel swimming pool, and sustained injuries to his neck, upper extremities, lower extremities, psyche, and digestive system.  Defendant pointed out that applicant wasn’t on the clock when he took his dive, but applicant’s counsel responded by pointing out that the commercial traveler rule applied.

Persuaded by defendant’s arguments, the workers’ compensation Judge held that Labor Code section 3600(a)(9) rendered this injury non-industrial, as applicant’s injury arose “out of voluntary participation in any off-duty recreational, social, or athletic activity not constituting part of the employee’s work-related duties.”

Applicant petitioned the Workers’ Compensation Appeals Board for reconsideration and, having rubbed the lamp in just the right way, the applicant’s wish was granted.  The WCAB reasoned that section 3600(a)(9) does not apply to the commercial traveler exception, but rather to routine injuries.  So, if a hotel worker were to take a lunch break and go for a swim in the hotel pool, sustaining the exact same injury as the unfortunate Mr. Pavool, the injury would not be compensable under section 3600(a)(9).

In its reasoning, the WCAB points out that it is unreasonable to expect an employee to remain cooped up in a hotel room.  Even this, we have seen, may not spare a traveling employee an injury.

So, if you’re sending your employee on a trip, see if you can find a hotel with a swimming pool that only has deep ends!

Happy Wednesday, dear readers!

Your humble blogger has the misfortune of reliving, frequently and without reason, some of his more awkward moments.  Some as early as my formative years, some more recent.  It’s never a pleasant experience and I would rather not – but awkward is as awkward does. 

Like those awkward memories, COVID19 is going to remain with us, and make us fairly unhappy, for years to come.

When defending a COVID19 case, though, the most obvious argument against compensability is that the exposure and infection occurred outside of the workplace, no?  Given that employees naturally have privacy rights, trying to establish exposure outside of the workplace can be a challenge, certainly.

What better way to get the information about applicant’s non-work activities than to ask those living with applicant?

Well, that is the subject of the panel decision in Labella v. Marathon Petroleum, a panel decision issued by the WCAB late last month.

Applicant alleged injury in the form of COVID19 related illness while employed by defendant.  Defendant then sought to compel the testimony of 3 witnesses who all, as claimed by defendant, lived with applicant.  The petitions alleged the depositions were necessary “to obtain details of [applicant’s] possible exposure to COVID at home.”

Sounds reasonable, no?  If one of the witnesses testifies to coming home with COVID19 from a trip several days before applicant showed his first symptoms, wouldn’t that be relevant to the AOE/COE determination?  Likewise, if no one at home had COVID19 symptoms prior to applicant showing his symptoms, wouldn’t applicant’s counsel be chomping at the proverbial bit to have those witnesses testify under oath and state this fact?

Well, the WCJ denied the petitions, reasoning “this court is unaware of any basis or jurisdiction for compelling a non-party to appear for deposition.”  Defendant then sought removal.

The WCAB granted removal and sent the matter down for further development of the record, but did not reverse the denial of defendant’s petition out of hand.  So, unfortunately, we do not have the fiery and affirmative right to depose family members regarding COVID19 cases.  However, the commissioners did provide some guidance.

The commissioners referred the parties to Labor Code section 5710, which allows the appeals board to cause the depositions of witnesses who need not be parties to the case (“a workers’ compensation judge, or any party to the action or proceeding, may … cause the deposition of witnesses residing with or without the state…”).   The opinion rejects the theory that only the employer’s employee witnesses may be so compelled.

The opinion further notes that the WCJ is empowered to issue protective orders, but that generally the WCJ and the WCAB can order non-party witnesses to sit for deposition.

So, while not definitive or controlling, it does signal that at least 3 WCAB commissioners appear inclined to allow defendants to depose family and co-habitants of COVID19 claimants.

Your humble blogger would add some more food for thought – when we go down this road, we will inevitably run into issues of spousal privilege.  Whether communications between spouses can be offered into testimony, or, more importantly, being called as a witness at all (see Evidence Code 970).  But, we don’t only live with our spouses alone.  Children, roommates, grandparents, parents, etc., do not qualify for the privilege under EC 970. 

Although, hopefully, cases of COVID19 infection become less frequent, and the litigated cases related thereto become less frequent still, we will continue to see these cases crop up now and again.

Till next time, dear readers!

Happy Monday, dear readers!  It’s another beautiful week in paradise.  We’ve celebrated Cinco de Mayo, and, as we are clearing away signs of those festivities, we are getting ready for Mother’s day this Sunday.  In this world of uncertainty, dear readers, you cannot expect another reminder that Mother’s Day is coming up this Sunday, May 14.  It might already be too late, but do try to make those lunch reservations, order those flowers, and set aside time to give your mother a call. 

I think if our dear friends and family members were to visit us in California, they would expect to see certain things.  If they were here for a week without Sacramento trying to crush another swath of California’s businesses, they’d feel like they missed out.

So, it only makes sense that we take a look at Assembly Bill 1213, which just passed through committee at the end of April.  What does AB1213?  Well, what doesn’t it do?!?

A lot, to be fair, but primarily AB1213 exempts any periods of TD pending IMR review of treatment (and eventual overturn) from the TTD cap of Labor Code section 4656.

So, let’s take a scenario.  Applicant has a DOI of 1/1/2020.  He goes on TD and his TD would be exhausted by 1/1/2022, as per 4656(c).  Well, if applicant’s PTP submitted an RFA on 3/1/2020, and UR came back with a denial on 3/6/2020, all the periods from that 3/6/2020 denial to the IMR overturn would not count towards the 104-week cap.

What do we need to do if AB 1213 becomes law?  Well, in every file, we set reserves and value cases based on a range of exposure, factoring maximum exposure of course.  How can defendants adequately set reserves or value cases for settlement when there is almost a perpetual TD range?

It’s not all doom and gloom, of course – in 2021, IMR upheld 92.8% of UR denials.  The ultimate impact is going to be limited.  But this isn’t the only squeeze California’s employers and insurers are feeling from Sacramento.  There seems to be pressure from every end to make $100 in payroll more and more expensive for businesses in California. 

Now, if life was fair and California was interested in seeing justice for both employer and employees, when IMR denies a method of treatment, and the PTP has no other suggestions that are likely to change applicant’s condition substantially in the next year, as contemplated by 8 CCR 9785(a)(8), then we would also have regular findings that applicant is P&S retroactively to the date of a UR denial, once the IMR appeal has been exhausted.  We would also have TTD overpayment credit as a matter of right, rather than judicial discretion. 

What is good for the goose is good for the gander, after all, no?

But instead, we see a continuous stream of policies and rulings that disproportionately favor applicants at the expense of defendants in Workers’ Compensation.  My beloved readers, the secret to youth, I have found, is to maintain that adolescent naivete which objects to injustice and life being unfair.  That is how your humble blogger maintains feeling like a 20-year-old.

Like so many other recent results from Sacramento, AB1213 seems worthy of watching.  But, likewise, we can watch the cost of doing business in California as it continues to rise.