WCDefenseCA

First off, dear readers, a very happy Martin Luther King Jr. day to one and all.

But speaking also about workers’ comp for those stuck at work today…

As a new week opens up, the world of California workers’ compensation continues to rock and sway from the start of the new decade. 

Among the topics coming up with some regularity is AB-5.  Several industries are valiantly trying to stop some or all of its implementation through the courts.  Meanwhile, there is at least some stirring of activity in Sacramento trying to blunt at least some of the impact of AB-5, which raises the bar almost insurmountably for retaining an independent contractor rather than, often unwillingly, hiring an employee. 

Assembly Bill 1925 has been introduced by Assemblyman Jay Obernolte to limit the application of AB-5 and create an exemption for small businesses.  AB1925 would define a “small business” as independently owned and operated, not dominant in its field of operation, having fewer than 100 employees, and have an average of gross receipts at $15 million or less for the previous three years. 

The bill was just introduced about a week ago, so it’s going to take some time for it to be considered by the legislature, let alone voted upon or signed by the Governor.  However, your humble blogger, high upon his soap box, highly endorses any movement into freeing up businesses and workers to make their own contracts and agreements. 

Please bear in mind, dear readers, as good as it might have felt for the folks in Sacramento to strike a blow against “evil” UBER, the fall-out from AB-5 has not been a feather in anyone’s cap.  I’m sure the attorneys litigating this in the courts are laughing all the way to the bank from the billable hours involved, but the news has also included freelance journalists being laid off.   Accordingly, any reduction in the legislation’s scope is gain. 

Here’s hoping AB1925 will see swift review and approval by Sacramento!  

Happy Friday dear readers!

Many of you are too young to remember this, but back in my day, there was a wonderful comedian by the name of Yakov Smirnoff, who often quipped about life in the Soviet Union as compared to the United States, himself being an immigrant.  He once joked that Taco Bell was banned from the U.S.S.R. since the start of their advertising slogan: “run for the border.”

And that brings us to today’s post.  No, no, dear readers, Borders Bookstores is never coming back, so don’t get your hopes up.  But Taco Bell posted something rather interesting to LinkedIn (thanks to reader JJ for the link!)  it would appear that Taco Bell is diving head first into replacing life employees with kiosks to automate ordering, having already deployed more than 4,500.

Now this isn’t limited to California, of course, but Taco Bell does have a lot of California locations, and each kiosk can effectively replace 1-3 jobs, right?  And, of course, kiosks don’t file workers’ comp claims and don’t seek overtime pay.  They also are in sync with a growing desire to avoid human interaction as much as possible…

So what does your humble blogger predict by peering into his Buffalo Trace Bourbon crystal ball?  This is going to show as a proof of concept for the multitude of competitions in the fast food industry.  These kiosks will render a better experience for customers because of fewer ordering errors, capacity for multiple languages, and greater display abilities for choices, while also saving money for the employer.  Win-win.

Now, who among you is so inclined to give these kiosks a test drive over the weekend and send a report to your humble blogger of the results?

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.

Welcome to February!

Alright dear readers! It’s that time!

I’m calling this future Friday because, well, why not?

Whip out your 2005 rating schedule and go to page 3-3.  You’ll see that at least one of the “baker” positions has occupational group 420 and another, the Baker Helper, has occupational group 460.

Dough brake machine operator on page 3-8 has 460 as well.

Making bread in the literal sense can be physically demanding job, and most of the occupational variants for 420 and 460 are pretty high up there.

In other words, if your applicant makes it into those occupation codes, odds are good your PD is going up.

The job itself lends itself to repetitive strain, lifting injuries, and occasionally burns.

Yikes – an expensive profession to insure for industrial injuries.

But your humble blogger isn’t worried.  To quote legendary anchorman Kent Brockman, “I, for one, welcome our [robot] overlords.”

InterestingEngineering has an article about BreadBot, a bread-baking robot that is touted as making a fresh loaf of bread every six minutes!  Touting as advantages its small demand for floor space and the fact that fresh bread needs fewer preservatives (and avoids the costs of paying for delivery of bread baked elsewhere), the real advantage from your humble blogger’s costs is the savings on the cost of labor.

Employees will still be necessary to refill the dry ingredients, but that work is not going to generate the high PD that actual bread baking does.

Foodandwine.com estimates the cost as “$100,000 over a five-year lease” which might not be a bad investment to replace the labor costs of a bakery department.

The future is coming to shrink the world of workers’ comp; are you [b]ready?

Have a good weekend, dear readers!

Happy Wednesday, dear readers!  When I was growing up, the primary purpose in camels was to sling cigarettes to easily brainwashed kids looking to be cool.  Ever since the gubmn’t got involved in regulating smoking many of these poor animals are out of the job, with the few still employed focused on serving as humiliated mascots for Wednesday, also known as “hump day”.

Speaking of job retraining, just before Christmas WorkCompCentral reported on VABAD Inc. (dba Career Advancement Solutions), and the Santa Clara District Attorney’s charges against the organization and certain individuals related thereto in a fraud scheme.  The names of these individuals are not listed here as these are yet charges, and not convictions, but if you’re dying to know then a bit of diligent googling will give you the answers.

In any case, the DA has charged the defendants with charging billing carriers for retraining services that were never provided and for paying kickbacks for referrals.  If the charges are taken at face value, then VABAD/Career Advancement Solutions collected proceeds on some $1.6 million and paid over $300k of that in kickbacks.  As alleged, the defendants would collect the voucher money and convert some of it to cash for the injured workers, keeping the rest.

So what?  I mean, it’s just $6k – when you’re talking about exposure for a lifetime of medical care, it’s a drop in the bucket, right?  Remember, dear readers, the classic Kipling poem regarding Dane-Geld: “That if you once have paid him the Dane-geld you never get rid of the Dane.”

The attitude of paying out vouchers unnecessarily or not policing their use makes voucher fraud such a tempting target.  If applicant attorneys demanded an extra $6,000 on top of every settlement “just because” we’d balk at it.  But that’s what’s happening here – if a voc rehab entity is converting the $6,000 voucher into a $1,000 check (for example) for injured workers who have no intent in using the voucher anyway, then there’s plenty of incentive to pursue the voucher at every turn.

So, what can you do?

Is the facility “providing” the computer and demanding $1,000?  That’s a no-go because the voc rehab folks are not allowed to sell a computer to the injured worker.

Are they charging more for their classes than what’s listed on the EDD website?  Are the classes as submitted for approval to EDD for ETPL approval different in nature or price from what is being submitted to the insurer for approval?  Are the classes to be provided to the injured worker exceeding the work restrictions imposed by the treating physician or med-legal expert (for example, is the carpal-tunnel claimant who can’t type being given “word processing classes”?).

I know it seems like investigating and litigating these vouchers is a chore – it’s $6,000 to get rid of a file.  But the problem is that lax monitoring or enforcement is going to run up a bill much larger than $6,000 because it encourages more and more fraudulent demands.  By contrast, stiff enforcement of proper use of a voucher will discourage those that have no intention of benefiting from the re-training, and the voucher money might never be lost to the employer as the voucher might expire unused.

Your humble blogger is one of those old-fashioned folks that follows that oh-so-American maxim: “millions for defense, but not one cent for tribute.”  And so, however self-serving this must sound coming from a defense attorney, I urge my beloved readers to opt for thousands in litigation dollars, but not one cent for fraudulent vouchers.

Welcome back from the weekend, dear readers! Isn’t 2019 flying right by?  It feels like it’s been 2 months since new years’ but it’s actually only been two weeks.  The cold will never stop, the sun will never come back, and in the back of your humble blogger’s mind plays that old song on repeat: “hello darkness my old friend… why are you here it’s 4 p.m. …?”

Anywho, to reward you for your loyalty in readership and discerning taste in subscription (I know that not just anyone is allowed to contaminate your e-mail inbox), I am going to tell you a little workers’ compensation secret.  If a defendant is providing a certain type of medical treatment, it is not allowed to stop unless there’s a change in medical circumstances.  That’s right! Look through the Labor Code and you won’t find it; search through the regs but it isn’t there!  That’s because this secret is just a figment of some applicant attorneys’ imaginations.  It is a myth, a fantasy, not unlike Keyser Soze, which is why it’s such a well-kept secret, of course.  (To be fair, dear readers, there is one WCJ’s ruling and a no-comment WCAB approval that supports this conclusion, but this is non-binding and has no regulatory or statutory authority that your humble blogger can find; it would appear that the case discussed in this blog post directly conflicts with any guidance provided by the Miramontes result.)

With that in mind, I bring to your attention the relatively recent panel decision in the matter of Gonzalez v. First Presbyterian Church of Santa Barbara.  Therein, an applicant sustained an admitted injury and resolved her case via stipulated award with open future medical.  The case was reopened via petition but that’s not really related to the issue at hand.

Defendant was providing home health care for more than four years.  When applicant’s treating physician submitted yet another request for continued home health care, the request was forwarded to UR which issued a timely denial.  Applicant made a timely request for IMR but also challenged the validity of the UR denial at an expedited hearing.  Defendant raised the issue of jurisdiction based on the WCAB’s decision in Dubon II.

After the expedited hearing, the WCJ ruled that as UR was timely, the WCAB had no jurisdiction to review the decision – it had to go to IMR if it was to go anywhere at all.

The WCAB in reviewing the decision, ruled that a defendant can terminate home health care services if they are no longer necessary, and UR is one method of proving that they are no longer reasonably necessary to cure or relieve from the effects of the injury.

So what’s the lesson to learn here?  Well for defendants it is an old one: UR and IMR trend towards cost containment, and, of course “a trend is your friend.”

But, believe it or not, there is a lesson here for applicants as well.  There is a difference between medical treatment and a medical treatment award.  Just like we all learned in law school (or in preschool for that matter) a promise is different than performance on the promise.

The workers’ compensation landscape is increasingly becoming one where obtaining a medical treatment award is getting easier, but getting actual treatment – whether because no doctor is willing to starve his or her family by accepting workers’ comp fee schedule or because UR and IMR are very aggressive – is getting harder and harder.

So, perhaps there is some sense in applicant attorneys encouraging their clients to C&R their claims.  An aspirin in the hand is worth two on your PTP’s RFA.

Alright, readers, it is Friday again!  We all spend our Fridays in different ways.  For some of us it means a quiet dinner at home, and for others it means going out and enjoying some of the charms of living in 2018.

Well, a lot of folks get around by motor vehicle, but after consuming various beverages are in no condition to drive back, so up comes a taxi, Uber of Lyft to get us home safely.

Well, next year, Daimler will be offering free robot taxi rides to passengers in the Peninsula near San Francisco and San Jose.  Waymo has been offering similar services in Arizona for a while now.

The question of whether you would take a ride from a self-driving car is becoming more and more of a real one.  Would you feel safe taking such a ride?  What if it was significantly cheaper?  What if it was statistically safer?

Well, your humble blogger predicts the following sequence of events: self-driving cars will prove safe and reliable and will become the norm; human professional drivers will find their jobs reduced or eliminated by automation; a flood of cumulative trauma claims will be filed by recently laid-off drivers; your humble blogger’s job will be secure for another decade or so until an automated lawyer is produced; the T-800 begins hunting for John Connor.

And no, dear readers, your humble blogger respectfully submits that there’s nothing wrong with the Governator having to go through the workers’ compensation system that he reformed.

All kidding aside, there is a huge sector of the economy that is directly or indirectly related to professional drivers.  From providing transportation to passengers in smaller vehicles such as taxis and Uber/Lyft rides, to driving busses with dozens of passengers or bigger trucks with cargo.

These drivers are paid a good chunk of money and spend money in the process of doing their jobs – refueling their cars, refueling their bellies, patronizing hotels, etc.  How will California’s economy look when a self-driving car (that likely recharges an electric battery rather than a gas tank) does all those jobs without the need for food, breaks, or sleeping quarters?

Just something to consider as you enjoy your libations this Friday night, dear readers!

Happy Wednesday, dear readers!

It is no secret in the workers’ compensation community that defendants generally dislike and disapprove of chiropractors, whether as primary treating physicians or as QMEs.  One of the tenets of the cult of the defense attorney is that chiropractors will prolong TD, inflate PD, and drag out a case with unnecessary referrals and treatment.

Obviously, there are lots of chiropractors and the practice is not all that monolithic.  I know a chiropractor or two that I recommend as AME in my cases and know that I will get a report just disappointing enough so that both parties can settle and close the file.  A closed file is a happy file, no?

But, seeing as it is October and Halloween is coming towards faster than a recently fired and disgruntled employee to an applicant attorney’s office, let’s engage in some spooky fear mongering.

According to an article from the University of Michigan, “forceful manipulation of the neck is linked to a damaging side effect: vision problems and bleeding inside the eye.”

The article quotes Yannis Paulus, M.D., of the U. of Michigan Kellogg Eye Center, a 59-year-old woman experienced a “tadpole” shaped spot in her vision after a chiropractic visit which worsened over time, but ultimately resolved.

Aside from vision problems, some physicians have warned of the risks of certain types of stroke, and a warning from the American Heart Association.

Both the article from University of Michigan and the AMA warning state that the likelihood of cervical manipulation causing stroke or eye loss is low, but both also urged patients and chiropractors to be aware of the risk.

So, if you’re looking for a spooky story to tell at the Board, you can claim that stepping foot in a chiropractor’s office will absolutely result in stroke and blindness (and, come to think of it, if the injured worker received chiropractic care and isn’t blind/suffering a stroke, doesn’t that mean that he or she didn’t REALLY attend the appointment?)

In any case, if you do have an overlap of loss of eyesight or stroke as a compensable consequence, chiropractic care might be one avenue of causation to explore.  Since both articles also mention the potential for reverse causation, it opens the door to exploring whether the need for chiropractic care is caused by an industrial injury or non-industrial loss of eyesight/stroke.

Fun times, dear readers!  Now, who is going to go trick-or-treating as a chiropractor this year?  Every defendant will be certifiably spooked.

What day is it, dear readers?  Why, it’s…

Your humble blogger previously wrote a bit about exo-skeletons: those robots you practically wear on the outside of your body that help take the load off for heavy or repetitive tasks.

Well, now I’m going to write about it again.  Why? Because these things are nothing short of miraculous.

Esko Bionics is bringing its exoskeletons to Ford’s Michigan factory workers.  A lot of the injuries we see now, especially the cumulative trauma claims, might take their place on the shelf of history next to the dinosaurs.  Why?

The physical strain on the human body done by much of this work, such as having to hold up heavy tools for 2-3 hour stretches at a time, could be transferred to the exoskeletons.

According to the video below, the exoskeleton provides 5-15 pounds of lifting assistance per arm for chest level lifting and above.

How will this apply in workers’ comp?

If a treating physician provides work restrictions of limiting shoulder-and-above work to 15 pounds or lighter, does wearing the vest increase those restrictions to 30 pounds?

If a QME opines about industrial causation to a cumulative trauma, but has not considered how such an exoskeleton works or what impact it has in applicant’s usual and customary duties, can the QME opinion still be considered substantial medial evidence?

Now, think about the flip side of this – if exoskeletons become the norm, or the growing trend, does failure to provide them constitute serious and willful misconduct?  Should such exoskeletons be considered basic safety equipment?

To some extent, the history of labor came with the notion that one will wear out his or her body over a lifetime of work.  It’s only natural – our bodies degrade due to our labors over the span of our lives, and our hope is that we greet retirement with only minimal pains and aches from a lifetime of toil.

What if that’s no longer going to be the case?

Call me charmingly naïve, dashingly handsome, and hopelessly optimistic (come on, do it!) but your humble blogger is expecting good things are coming our way real soon.

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.