WCDefenseCA

And we’re back for another glorious Wednesday in California’s workers’ compensation swamp, dear readers. 

If you’ve been waiting for the emergency telehealth rules to expire, your humble blogger has some rather bad news for you, dear readers.  While the current 8 CCR 46.3 are set to expire on October 18, 2022, the DWC intends to extend the regulations another 90 days.

What’s important about these regulations?  The regulations allow QMEs and AMEs to conduct medical-legal evaluations under certain conditions.  Previously, Rule 34(b) only allowed examinations to be conducted physically in the office of the QME or AME.

Lots of your humble blogger’s colleagues have objections to telemedicine med-legal examinations, and your humble blogger certainly sees merit in these arguments – a physical exam cannot be properly done over video, nor can range of motion be adequately measured; an examinee can be fed information by someone off screen or terminate the evaluation abruptly and claim technical difficulties.

Naturally, some folks in the workers’ compensation community are cheering the anticipated end of telemedicine examination.

If the WCAB proceeds with extending the telemedicine regulation, we can expect the status quo for another 90 days afterwards, unless the regulation is made permanent, rather than part of the “emergency.”

As my well-informed readers will recall, the WCAB recently had attorneys return to in-person trials and expedited hearings back in March of this year.  So, your humble blogger can’t help but ask… what is the difference between the two?  What compelling need is there for in-person trials that is not needed for med-legal examinations?  Or, by contrast, what makes med-legal examinations effective when conducted via telemedicine that doesn’t equally apply to in-person trials?

As any Canadian Goose farmer will tell you in between giant mouthfuls of maple syrup and glances at the local Canadian hockey game, what is good for the goose is good for the gander.

In any case, dear readers, I think we can all feel it in the air.  As the panic of the pandemic is dissipating and we’re all getting on with our lives – returning to normal, rather than arriving at a “new” normal – we are coming to a very important fork in the road: is workers’ compensation going to go effectively remote, with video deposition, telemedicine, and video-trials, or will we revert back to an in-person system?

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!  We are just powering through 2021, aren’t we?

So, pop quiz for you, dear readers.  How many days does an employer have from receipt of the DWC-1 claim form to deny a claim?  Well, if you were to look at Labor Code 5402, you’d see that an employer has 90 days to issue a denial.  But if you were to look into the future, the answer might be different… very different.

Senate Bill 335 would amend Labor Code section 5402 to reduce the 90-day investigation period to 45 days.  The bill would also reduce COVID related investigation periods to 30 days (down from 45 for some cases).  Finally, employers would be liable for the first $17,000 (up from $10,000) in medical treatment prior to the denial of the claim.

Let’s just do some basic arithmetic (come on, dear readers, it will be fun!) 

An employee who has a history of back problems that pre-date the start of employment files a workers’ compensation claim for an injury to the back.  The employer is skeptical as to causation and plans to request a panel.  A delay notice issues about 10 days after receipt of the claim form, and the pro per employee requests a panel by mail.  About 20 days later, the panel arrives and the first available appointment is in 45 days.  The report will not issue for another 30 days after that. 

In order to get a QME opinion about causation, the likely wait is going to be 105 days from when the claim form is provided to the employer.  Mind you, dear readers, this is all very optimistic about the timeline.  The typical time from claim form to QME opinion is a lot longer, often requiring replacement panels because the available QMEs cannot set timely.

It is tough enough to do a thorough investigation with 90 days, what is the employer supposed to investigate in 45 days?  Most of the time, even a deposition is not available within 45 days, which means that more and more employers will have to issue a denial because an investigation cannot be completed in time.

Hopefully, SB335 goes the way all the other bad legislative ideas and becomes a footnote rather than law.  But this is another example of the worrying trend coming from Sacramento which seems determined to make workers’ compensation an unbearable burden on California’s remaining employers.  Certainly as other states court California businesses by offering lower taxes and less regulation, the cost of workers’ compensation insurance per $100 of payroll will be an added incentive to move out.

Welcome back dear readers! Your humble blogger hopes the three-day weekend was marvelous and restful.

But, since you’re reading this, either the break wasn’t that engaging or you’re back to work, so please allow me to use the mighty soap box that is this most humble of blogs to denounce the machinations of our friends in Sacramento once again.

Now, I know full well that if I denounce “what they’re doing” in Sacramento, a LOT of things come to mind without narrowing the scope, so feel free to let your imagination run wild.

But since I’ve taken the trouble to write this blog, perhaps you will allow your humble blogger to impose upon you to finish reading it?  In this particular instance of outrage and angst, your humble blogger rails against proposed Senate Bill 216.

What does BS 216 SB 216 have to do with workers’ comp, you might ask?  Well, everything.

Workers’ compensation insurance is only required for those that have employees (although there are some exceptions, such as roofers).  Self-employed individuals can opt out having insurance, as can business entities without employees.  Why would anyone want to opt out of having insurance?  Well, as your humble blogger has learned through the process of becoming an adult and then even more so through the process of becoming a cynical adult, most questions that begin with “why” can be answered with “money.”

If a licensed contractor doesn’t have any employees, the pressure is there to keep costs as low as possible to be as competitive as possible on quotes for services.  Being required to purchase workers’ compensation insurance means increasing the cost of bids, rendering the independent contractor less competitive.  In a similar vein, requiring a licensed contractor to purchase volcano insurance would have a similar effect.

To be fair, the reasoning for the law is sound: many licensed contractors claim to have no employees, then hire workers off the books and leave their clients holding the bag when an injury occurs.  But the remedy in this case appears to be worse than the cure – adding another “tax” to licensed contractor operations, in this case requiring workers’ compensation insurance when there are no employees, is just going to drive more licensed contractors into the underground economy.

After all, the more expensive the cost of compliance with the law, the more incentive to risk breaking the law, no?

Your humble blogger sincerely hopes that the Legislature in Sacramento declines to turn this proposal into law.  Navigating California’s business environment is difficult enough, and living in California is expensive enough, without bearing these additional and unnecessary costs. 

Till Friday, dear readers!

Alrighty dear readers! It is Wednesday and we are powering through this week like your humble blogger used to power through all-you-can-eat sushi-boat before COVID19, dignity, and middle age but a cruel and regrettable Kibosh on such practices.

So, odds are pretty good that you’re getting at least some reports reflecting PTP visits through tele-medicine.  Sometimes it’s a phone conversation.  Sometimes it’s a video-conference.  I suspect that, sometimes, nothing happens at all but the shadier members of the medical community just can’t help but routinely bill.  Hopefully, due to the diligence of the defense community, and the zeal of our prosecutors will keep that to a minimum.

Telemedicine, as vital as it is during this period of shelter-in-place, has its limitations.  While a psychiatric QME examination might very well be done over video-conference, a physical exam is not so readily performed.  Perhaps the PTP can prescribe medication, but probably can’t administer an injection, right?  So, about that…

Inverse.com has an article about an experimental “surgery” performed on a cadaver by Italian physicians from 9 miles away.  Assistants set up the cadaver and the robots, and then surgeons wearing 3D headsets and using robots controlled over the internet performed the surgery.  The lag between command and response was negligible and did not appear to affect the performance of the surgeons.  Pretty cool, huh?

What does this mean for us in the workers’ compensation world? 

Well, the advantages of tele-medicine are many.  A doctor in one geographic area can provide service to many geographic areas.  The WCAB already uses remote Judges and court reporters as necessary.  When one location is becoming overwhelmed, a less-congested venue can fill in and help.  

Could this approach be used for more invasive procedures?  Can an injured worker report to a clinic and have epidural injections remotely controlled by a doctor?  Could chiropractic manipulations be controlled and guided by a remote chiropractor?

Fee schedule issues are an ongoing point of contention within our beloved workers’ compensation system.   Physicians naturally want to be paid more for their services, and carriers naturally want to pay less.  What if the fees stayed the same but this approach significantly reduced provided overhead and increased capacity for more services?

Laugh all you want, dear readers, but it doesn’t look like California’s Shelter-in-Place approach is going away before the flu season, and we’re likely to be hit by the perfect storm at that point: kids returning to school, businesses reopening out of desperation, and influenza resurging as is tradition.  Technology may, yet again, be the answer.

Now, if you’ll excuse me, your humble blogger’s Roomba has yet again lost its battle with the curtains, which I’m sure, in no way, reflects on the prospects of success for robotic surgeries.

Straight on till Friday, dear readers!

It’s Wednesday again, dear readers, but not just any Wednesday – it’s the first Wednesday in June.

What does that mean?  Not much, really, except that the WCAB announced last week that the telephonic appearance procedures will continue through the month of June.  Electronic filing will continue as before as well.

The one notable exception is that the Board will now allow up to 3 lien conference per judge’s calendar session per day.  Once those slots are filled up, the remaining lien conferences will be continued.

From my own experience, it looks like the hearings are becoming fairly streamlined – the attorneys appear to be getting pretty comfortable with appearing and addressing issues over the phone; the Judges have been saint-like in their patience and flexibility to make the technology work, and there is a growing trend of preparing in advance of the actual hearing.

Will this become the norm?  Will we limit Board appearances to live testimony under oath, and conduct all other hearings by phone?

If that’s the case, will we also see the pooling of Judges state wide?  Will we see impacted Boards getting assistance for status conference and MSCs from Boards with more availability?

The root of the necessity for these changes is unfortunate, of course, but not unlike a cow kicking over a lantern and causing the need to modernize a city, perhaps this innovation will make practice and resolution of workers’ compensation faster, more efficient, and, at least as to the litigation aspect, less costly.

So, dear readers, what do you think?  When we all feel comfortable drinking Coronas again, shall we return to the hustle and bustle of the WCAB?  Or will we live out our nightmares of [telephonically] going to court in our underwear?

Your humble blogger is looking forward to see what the future brings.

Happy Wednesday!

So dear readers, as we keep on keeping on, going into May of 2020, it looks like the trend remains: work from home is the name of the game.

Sure, essential workers continue to leave the house, but a huge chunk of us continue to do our duties from the comfort of our homes (if we can). 

So here’s a fun question for anyone in such a situation contemplating retirement: how can you claim workers’ comp benefits if you’re working at home?

Well, it’s been done, and not just while we’re under shelter-in-place orders.  The WCAB issued a panel decision in 2017 (writ of review was subsequently denied by the Court of Appeal) upholding the WCJ’s ruling that the injury sustained at home was compensable.

In Tidwell v. Santa Clara VTA, applicant was working at home when she fell while using the restroom, resulting in a broken right leg.  According to applicant’s testimony, she had been working for several hours and only took a break to use the restroom with the intent to return to work.

Particular to this case, applicant’s doctors, even prior to this injury, recommended a germ-free environment for the restroom, and her employer’s restroom did not meet this requirement.  Accordingly, she opted to work from home, although she would have otherwise preferred to work at the office.

The facts also showed that applicant had been working at home for 10 months prior to the industrial injury.

The panel adopted and incorporated the opinion of the WCJ and, as noted above, the Court of Appeal denied review.

In the Tidwell case, applicant worked from home because of medical necessity.  The WCJ reasoned that the employer derived benefit from this as there was always the option of not allowing the employee to work from home. 

What about all the folks sitting at home right now, continuing to do their jobs as best as they can under shelter-in-place?  While the employers can take steps to ensure a workplace is relatively safe (guardrails, anti-slip floor mats, prohibiting the consumption of alcohol during business hours), how is an employer to enforce such measures remotely?

Well, as we all continue to work at home, are we to anticipate injuries sustained at home in the discharge of work duties?  The ergonomic chairs and sit-stand desks installed at such great expense by employers in the office sit idle, while your humble blogger may or may not still have an old computer chair from his college days at home.

What’s more, as experience sprinkled with a bit of cynicism has taught us, anticipation of lay-offs prompts specific injury claims; notice of lay-offs prompts cumulative trauma claims.  Can we expect those from the folks working from home?

If those do start coming in, what are the options for the defense community?  Well, for starters, an investigation of the injury might include an investigator visiting the “scene of the injury” for signs of non-industrial causes. 

Are there signs of alcohol consumption during work hours? Of injury being sustained in non-industrial activities unrelated to work?  As Tidwell rightly reminds us, going to the restroom may be industrial, but going for a run and twisting one’s ankle is probably not.

If the work is being done remotely, was there any remote monitoring of the work?  For example, some remote work software makes note when there is general inactivity on a computer for a certain amount of time.  Was that the case in this claim?

Social media searches in particular would be helpful here as well, your humble blogger submits.

What do you think, dear readers, is your humble blogger being paranoid again?  Or is workers’ compensation yet again about to be the piggy bank for the survivors of an economic decline?

Hello there dear readers! I hope everyone is staying safe, washing their hands, and hoarding as much toilet paper as humanly possible.  In the meantime, since we’ve all decided to shelter in place, limit social interaction, and revel in the bitter-sweet euphoria that is working from home while all the schools are closed, let me provide a bit of distraction by something completely unrelated to Corona Virus – reasonable commuting distance!

That’s right, dear readers – California Code of Regulations section 10133.34 provides that regular, modified, or alternative work must be a “reasonable commuting distance” from the employee’s residence at the time of injury.

Well, in chatting with one of the gentle giants of workers’ compensation the other day, he raised this issue and had your humble blogger stumped: what constitutes a “reasonable commuting distance”?

Now, you might wonder why this is so important, but let’s not forget this is more than litigation over a $6,000 voucher: this is the opportunity to terminate temporary disability benefits and avoid the obligation to estimate and make PD advances!  As is the case with a flying cow – the stakes/steaks are high!

So, without the benefit of legal research, your humble blogger had a few initial thoughts:

1. Anything that is the same distance as applicant’s pre-injury location from his or her home would be a reasonable commuting distance;
2. Since California Labor Code section 4658.1 allows the modified work to pay as little as 85% or the pre-injury wages, I would submit at least a 15% increase in commuting distance from the pre-injury commute would likewise be reasonable;
3. A general survey of commuting conditions in the area should be taken into account – if it is typical for employees to commute one hour each way (or 45 miles each way) in the surrounding counties, then it should not be unreasonable for applicant to be required to go with the [traffic] flow.

Subsequently, your humble blogger decided to see if any panel cases touched on this.  Sure enough, I found the case of Perry v. Direct TV, a 2016 panel decision (remember 2016, dear readers?  I sure do. In the somber words of Andy Bernard, “I wish there was a way to know you’re in ‘the good old days’ before you’ve actually left them.”)

Applicant lived about 35 miles from his office location in Manteca.  That location had policies restricting the use of company vehicles for personal trips and also required all “light duty” modified work employees to leave the vehicles on company property, rather than use them to commute home.  As a DirectTV employee, applicant regularly went from location to location in his work vehicle, only occasionally coming to the Manteca office to restock or receive training.

After applicant sustained an industrial injury, he was offered light duty at the Manteca office which would not require a company vehicle.  But therein lies the rub – he had no vehicle of his own.

The parties proceeded to trial on, essentially, the sole issue of whether the light duty offered at the Manteca office qualified as a reasonable commuting distance given that applicant had no transportation of his own.

Well the WCAB ordered further development of the record, rescinding the WCJ’s award of temporary disability benefits.  On retrial, the WCJ again found applicant entitled to TTD benefits (presumably finding the offer of modified work as invalid due to the commuting issue).  As summarized by the panel, “the WCJ reasoned that an offer of light work without the continued use of a company vehicle made to an employee that had never required a personal vehicle due to the employer’s provision of a company vehicle was not a valid offer of light work.”

The WCAB concurred, although limiting its decision to this set of circumstances.

But what are we to take from this?

Well for one thing it pointed to a helpful case for this issue.  Tuivai v. Links Electrical Service (2015 Panel Decision) held that since applicant’s regular duties required long distance travel on a regular basis to various job sites, continued long distance travel as part of modified work was within reasonable commuting distance.  There, no specific distance was necessary – just the fact that applicant traveled long distances already.

Also, we can look at the Perry case in terms of pre-injury and post-injury change.  In this case, applicant’s pre-injury work provided him with transportation to do his job (although it was going to client homes/offices rather than the main office).  The light duty not only took away his company transportation, but would have imposed the burden of commuting on applicant (whether in cost for public transportation or car purchase/rental).  In fact, the value of the company transportation likely could have factored into the average weekly wage calculation.

In other words, like with all legal inquiries, the answer is going to be “it depends.”  It depends on the facts of the case and the impact the injury has had on applicant.  If the injury results in a loss of access to transportation, that’s probably going to affect what’s “reasonable” for a proposed commute.

Here is another consideration – there are places in California where driving 20 miles to the East takes 30 minutes, but driving 20 miles to the West might take 90 minutes.  Since the regulations provide for a reasonable commuting distance, do we factor in the time spent in the commute or just the miles?  Likewise, if modified work is farther away in terms of distance but a shorter commute in terms of time, is it still “reasonable”?

If this has distracted you, dear readers, then I regard my job is well done. 

Stay safe out there!

Happy Monday, dear readers!

So … you’ve looked everywhere for guidance on Corona Virus, and you ended up coming back here.  Accordingly, please allow Dr. Humble Blogger (remember, I did take Remedies in law school) to impart some wisdom upon you – you’re not going to catch Corona Virus because you chose to eat lunch at a Chinese food restaurant instead of a Sushi restaurant; you’re not going to catch Corona virus because you drank Corona Beer instead of Guinness;  and, most importantly, if you’re going to Costco to stockpile toilet paper and hand sanitizer, but you’re still eating the samples being given out in the store, I think you might be missing the point.

In any case, there’s a whole lot of inquiry about whether workers’ compensation is going to get dragged into the Corona Virus panic.  I would respectfully refer my beloved readers to a prior blog post on the flu in general – the rule that governs the inquiry is not whether someone who happens to have a job also happened to catch the flu (or Corona Virus) but rather, whether the job increases the danger of exposure to the injured worker more so than is visited upon the general public.

Since we’re in the spirit as it is, let’s take a look at the case of Leggette v. CPS Security, a panel decision issued in January of this year.

Now this one doesn’t have to do with Corona Virus, but it does have to do with West Nile (remember when that was the big pandemic?)  Applicant worked as a security guard at a construction site.  At that location, there was standing water on two sides of the construction site, and applicant saw and heard mosquitos.  He also felt them bite him on a daily basis!

On the alleged date of injury, he went home and the next morning (as per his testimony) he remembers putting on his pants and… that’s it.  He woke up a week later in the hospital, and was told he had contracted West Nile Virus.

Applicant alleged a specific injury and sought benefits but the AOE/COE trial resulted in a take-nothing, reasoning that applicant could produce no evidence of a mosquito bite on the date as alleged (his last day worked).

The WCAB reversed, equating the mosquito bite that gave rise to the West Nile Virus to an occupational disease, in that the “symptoms are latent after exposure.”   The panel concluded that “[t]he WCJ erred in finding that applicant had to specify the exact date that he was bitten by the infected mosquito… [r]equiring an injured worker to know the exact date of exposure in a case like this one would be nearly impossible.”

So based on this case, it is sufficient for an applicant to show that there was probable exposure to the condition as a result of work activities.  Notice, however, what the injured worker is NOT required to show:

1. The specific date on which he believes he was exposed  or on which particular date a mosquito bite resulted in exposure; and
2. That the mosquitos near his workplace actually carried the West Nile Virus.  Remember dear readers, there are plenty of perfectly healthy mosquitos out there that are annoying but not carriers of WNV.  However, it does not appear that any testing was required to show that the mosquitos infesting applicant’s worksite actually carried the virus.

Bringing this back to the Corona virus though – the news reports your humble blogger has seen seem to suggest that infection is nearly everywhere.  Previously recovered patients seem to get re-infected, and a huge swath of the population, though infected, shows no symptoms at all.

As low as the bar appears to be for workers to claim that their infection was work related, defendants should have a counter argument about the inability of an applicant to carry his or her burden in proving exposure at work as well as a result of work (AOE and COE).

What about you, dear readers, have you had this come up yet?  If so, drop me a line and share your experience.

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?