WCDefenseCA

Happy Monday, dear readers!

Pop quiz – is the day after Thanksgiving, what some marketers have started referring to as “black Friday” a business day? A holiday? A working day?

Yes, no, maybe, sometimes?

Depending on where you look, the day after Thanksgiving is or is not a holiday.  The California Department of Human Resources has it listed as one, as does the California Rules of Court.

The Federal government does not recognize the day after Thanksgiving as a holiday, however.  Government Code section 6700 likewise excludes the day after Thanksgiving from the Holiday list.

I know this seems silly, but it was the key question in the writ denied case of Gomez v. Department of Corrections.

The WCJ ruled that defendant’s UR determination was untimely because the day after Thanksgiving had been counted as a normal business day (rather than defendant’s position that this counted as a holiday).

Citing Labor Code section 4600.4, which defers determinations of holidays to California Civil Code section 7, the WCJ, and then the WCAB, determined that the day after Thanksgiving counted towards the 5-day UR determination requirement and was not a holiday.

Bear in mind, dear readers, that the State of California and all judicial employees, as raised by the defense in this case, get the day off as a holiday – but UR employees are expected to continue working, as per the reasoning drawn from this case.

From your humble blogger’s experience, most UR reports come in on the fifth working day, probably because most UR reports aren’t the only report the UR vendor is working on.  If Thanksgiving Thursday is a holiday, but Thanksgiving Friday is NOT a holiday but will be observed in every workplace as a holiday, that means the UR reviewers must get everything that would be due on that Friday out the door that Wednesday.

Your humble blogger isn’t complaining about this result, mind you – we the brave and free citizens of California need only exercise our will to have Black Friday recognized as a holiday through the legislative process.  But as this is the likely interpretation going forward, perhaps we in the defense community need to alert our beloved UR vendors that they will have to double time their reviews as Turkey Day approaches.

In the meantime, it appears that we should continue to be on the look-out what we might regard as holidays that are not actually state holidays.  For example, I don’t expect to see the WCAB close its doors on the recently passed Pie Day (March 14th) or on Star Wars Day (May the 4th), which is coming up all too fast.

Good luck this week, dear readers!

Alright, dear readers – it’s Wednesday.  You’ve made it this far, let’s keep going!

Your humble blogger does not like to sugar-coat reality.  I’ve explained to my children repeatedly, with a detailed and persuasive slide-show, that there is no Santa Clause, that their father likely has a favorite child (although this position is always in flux), and, despite the occasional flare of reason or justice, California Workers’ Compensation is where businesses go to be fleeced and devoured.

So, it is with great reluctance, that I bring you yet another story of reason and the defense community ultimately prevailing in yet another unpublished decision coming from the Court of Appeal.

The case is that of County of Sacramento v. WCAB, McCartney.  The facts are relatively simple: applicant, a peace officer, developed a skin condition which he attributed to his time in the sun on a motorcycle as a deputy sheriff.  The condition, actinic keratosis, may or may not be a precursor to skin cancer.

The QME, a dermatologist, had found that it was not more likely than not that applicant’s time in the sun as a deputy sheriff was the cause of the actinic keratosis.  Applicant has spent time in southern California as a surfer, and also spent his off-work time engaged in out-door activities, exercise, and golf.  The QME advised that there was insufficient factual and medical evidence to support a conclusion that it was on-the-job sun exposure that caused the condition.  The QME also acknowledged that some keratosis eventually become skin cancer, but applicant did not have skin cancer as yet.

When pressed by applicant’s counsel at deposition, the QME responded that the medical literature simply did not establish which of the many factors (recreational sun-time; pre-work sun-time; at-work sun-time; aging, pale skin, immune system) was the tipping point.  It wasn’t that work was a small contributor, it was that there was no way of knowing which of the many factor, if any, were the cause of his condition.

The result of the trial was a finding that there was no scientific basis upon which to conclude that the industrial exposure caused the condition.  So, applicant escalated matters to the WCAB, which reversed!  Citing South Coast Framing, the WCAB found that the QME had found that the on-the-job sun exposure contributed to the condition, but could not conclude the extent of the contribution.

However, the County of Sacramento, having caught the scent of a “take nothing,” was not willing to so easily give up the chase.

Eventually, the case did land on the desk of the Court of Appeal, which offered a different interpretation of the record, and provided a key form of distinguishing the South Coast Framing opinion.  In South Coast Framing, as the Court of Appeal explained, applicant was taking three drugs, one for an industrial condition, which the QME in that case concluded had a 0.01% – 20% causation.  By contrast, in the instant case, the QME concluded that there were many possible causes of the condition, and one of them was industrial.

My favorite line from the (sadly) unpublished opinion?  “The QME never acknowledged that there was a causative role of unknown degree arising out of [applicant’s] employment.  Rather, she took great pains to explain (repeatedly) that it was not possible to attribute the cause of [applicant’s] condition to any particular period of exposure to the sun, and therefore it was nothing more than speculation to identify the work-related exposure as a contributing cause.  Just because the effects of sun exposure are cumulative does not mean [applicant could not have reached a toxic dose before coming to work for the county…” (emphasis in original).

Though severely limited in its application, the McCartney opinion does give the defense community a few things to work with.  First off, there’s a clear distinction between the facts in South Coast Framing, which provided a plethora of causes of which industrial was a small amount, but sufficient to make the claim compensable.

But here, where there are many possible causes, applicant bears the burden of proving that, more likely than not, the industrial exposure is the cause, rather than one of many possible causes.

Additionally, unlike a dispute over some small amount of medical treatment, it might actually be worthwhile to take this issue up to the Court of Appeal on other cases.  Even if your case ultimately results in an unpublished decision, this opinion reflects at least some level of receptive disposition on the part of the Court of Appeal for such a theory.  The difference between industrial and non-industrial can be a vast fortune.

Alright, dear readers, back to work!

Happy Monday, dear readers!

A while back, your humble blogger reported on the Berrios v. EJ Distribution Corporation.  In that case, the employer had obtained insurance coverage with the understanding that its employee truck drivers do not operate outside of California.  Of course, applicant sustained injury while operating outside of California, and the insurance company sought to rescind coverage and avoid liability for the claim.

The arbitrator found that the insurance company could NOT retroactively rescind coverage, but could only cancel coverage going forward and sue for damages.  The WCAB affirmed, so the matter went before the Court of Appeal.

Well, the Court of Appeal issued its unpublished ruling recently, and, due to the Herculean efforts of counsel for the insurance company, obtained a remand.

The question in this case is and always was – what happens when an insurance company alleges that a policy was obtained by false statements by the employer, and an injury occurs under said policy?  The insurance company, of course, wants to rescind the policy, refund the premiums, and be no its way.  The employer, fearful of being left in the cold, wants to let the insurance company pay for everything and then spin its wheels coming after the employer.

The Court of Appeal’s opinion cited Insurance Code 650 and Civil Code section 1692 for the proposition that the policy could be rescinded.

However, the Court of Appeal also held that the insurance company missed a vital step in the rescission process.  While the first step appeared to be completed correctly, that is, notifying the insured of the rescission and returning or offering to return the premiums, there is a second step:

“[t]he thought that performing the acts set forth in Civil Code section 1961 effectively discharged [the insurer’s] obligations under the contract is incorrect.  A judgment finding that [the insurer]’s rescission was effective following an action filed to enforce the rescission under Civil Code section 1692, on the other hand, would be the discharge that [the insurer] seeks.”

Ultimately, the Court of Appeal remanded this matter back to the trial level to consider rescission under these two code sections.  While the original arbitrator ruled, and the WCAB affirmed, that the insurance company could not rescind its policy, the Court of Appeal disagreed and appears to rule that for the rescission to be complete, the insurance company has to take the issue to trial on the issue of whether the rescission was for a valid reason. (See California Civil Code section 1689).

So, now, the matter should be submitted to arbitration to determine, as a matter of fact, if the misrepresentations made in this case were material “determined not by the event, but solely by the probable and reasonable influence of the facts upon the party to whom the communication is due, in forming his estimate of the disadvantages of the proposed contract or in making his inquiries.”  (Section 334, as cited by the Court).

In summarizing the facts, the Court of Appeal’s opinion makes reference to the insurer’s investigator discovering that prior to obtaining coverage, the employer was operating outside of California.

But let’s take a hypothetical case – what if the employer did NOT operate outside of California at the time of obtaining coverage, but started to do so due to a new business opportunity, but did not advise the insured?  If the statements were true when they were made, and subsequent events made these statements “stale”, would rescission be as easy to effect defend?

These issues come up often enough – the employer might say the number on the floor is a six, the insurer might see it as a nine, but when an employee trips on the number and files a claim, the last thing the employer wants is to discover it’s given an interest free loan in premiums to its insurer, and then have to address a claim.

This is an interesting case and I’m hoping to find out how it ends as the reasoning will be relied upon for subsequent matters, even if it can’t be cited.

There are few things that make the frozen, black heart of a defense attorney hum with warmth and mirth.  The sound of a “take nothing” as it is retrieved from an enveloped from the WCAB; the smell of arrest warrants for workers’ compensation fraudsters; and, of course the inexplicably sweet atmosphere and ambiance of liens being mercilessly crushed underfoot.

2017 is the dawn of a new era for many reasons – from Washington, D.C., to San Francisco, a lot of stuff is going to be very different in the coming years.  Among them, even if not the most significant, is the treatment of liens.

I respectfully direct the attention of my cherished readers to the 2017 version of Labor Code section 4903.05.

Liens filed on or after 1/1/17 will require additional documentation, or suffer the sweetest justice of all: “dismissal of the lien with prejudice by operation of law.”  (Labor Code section 4903.05(c)(3).  And, just to make things interesting, it’s not only the post 1/1/17 liens – “[l]ien claimants shall have until July 1, 2017, to file a declaration pursuant to paragraph (1) for any lien claims filed before January 1, 2017.”  (4903.05(c)(2)).

So, what is it that will have to be declared, under penalty of perjury, for all liens, past and future?  Aside from declaring that the lien is not subject to independent bill review and/or UR, AND one of the following:

(A) Is the employee’s treating physician providing care through a medical provider network.

(B)  Is the agreed medical evaluator or qualified medical evaluator.

(C)  Has provided treatment authorized by the employer or claims administrator under Section 4610.

(D)  Has made a diligent search and determined that the employer does not have a medical provider network in place.

(E)  Has documentation that medical treatment has been neglected or unreasonably refused to the employee as provided by Section 4600.

(F)  Can show that the expense was incurred for an emergency medical condition, as defined by subdivision (b) of Section 1317.1 of the Health and Safety Code.

(G)  Is a certified interpreter rendering services during a medical-legal examination, a copy service providing medical-legal services, or has an expense allowed as a lien under rules adopted by the administrative director.

How many times have we had to deal with lien claimants that KNOW they are not in the MPN because this is lien number 3,561 as between Defendant A and Lien Claimant 1

How many times do we have to deal with lien claimants that subjectively understand that they are not entitled to reimbursement but think that they can get SOMETHING just for filing a lien and inflicting litigation costs on a defendant?

Well, those litigation costs might be disappearing soon – if the lien does not have the required declaration, under penalty of perjury, then it SHALL be dismissed by operation of law, with prejudice.  If it does have such a declaration, and you’re pretty sure that the declarant has committed perjury, list the declarant as a witness for trial or depose him or her – perhaps sanctions and costs will be ordered after the lie is exposed.

Current proposed regulations for section 10770.7 will operate to dismiss all liens filed prior to January 1, 2017, by operation of law, if there is no supplemental declaration filed with the WCAB on or before July 1, 2017.

To help lien claimants comply with these new rules, the DWC has prepared a form, but is appears to be only available to JET and e-filers, so it is not linked on here.

So, be wary, dear readers, and hold up this additional hoop for lien claimants to jump through before getting out your checkbook instead.  As for me, I feel that cold, dark heart of mine warming up already.

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!

Happy Friday, dear readers!

Your humble blogger has heard many-a-whispers of a case making the rounds (Alvarenga v. Scope Industries) discussing the interplay of Medicare Set-Asides (MSA) and Compromise and Release settlements.  From the looks of it, the parties entered into a C&R which was approved, but then defendant sought to set aside the Order Approving on the grounds of mutual mistake, to wit, that the MSA did not require Centers for Medicare & Medicaid Services (CMS) approval.

The case is an interesting one for many reasons.  The WCAB provided a discussion of CMS procedures and ultimately did rescind the order approving compromise and release, but not because of any allegations of mutual mistake – the WCAB found the settlement inadequate and that applicant was not properly advised of the impact the C&R would have on his Medicare benefits going forward.

With respect to CMS and MSA the WCAB panel noted that if the injured worker is (1) a Medicare beneficiary; or (2) has a reasonable expectation of becoming a Medicare beneficiary in the next 30 months, the parties must protect CMS’s interests.  In other words, you can’t just shift the obligation to pay for medical treatment for an industrial injury onto the federal government.  (42 USC sec 1395y(b)(1); identifying Medicare as secondary payer to workers’ compensation).

CMS, out of a workload consideration, won’t even review (and thus won’t approve) settlements for under $25,000 where the injured worker is a Medicare beneficiary, or $250,000 where the injured worker may become a Medicare beneficiary.

Accordingly, the WCAB pointed out that there is no requirement of CMS approval at all, and that approval by CMS of a Medicare set-aside will only be available to the parties when the workload threshold is met as above.

However, the settlement was still set aside on adequacy grounds.  The MSA came back at $24,079.23, and the C&R was for $39,000, less $11,040 for PDAs and $5,850 for attorney fees.  So the applicant was left with less than enough to cover the medical expenses as projected by the MSA.  But, had applicant’s counsel waived the attorney fee on the MSA portion of the settlement, the “new money” would have been $24,079.23 for the MSA and an additional $1,642.66 for applicant.

But… isn’t the attorney supposed to take a fee out of the MSA amount?  The WCAB has held that attorneys get a piece of the MSA as part of their fee.  Let’s take a case where the parties are five years out past the date of injury (so no chance of a new and further claim) and all TTD and PD has been paid (prior to representation of the injured worker).  All that’s left if the future medical care and for whatever reason, applicant is not entitled to a voucher.  If the MSA comes back at $24,000, and there’s no other benefit to settle, either the applicant’s attorney is entitled to a fee off the  $24,000 C&R, in which case there’s not enough money left to fund the MSA (leaving just $20,400/$24,000) or the attorney is not entitled to a fee.  Which one is it?

Additionally, the panel held that the C&R is inadequate because “based on the language contained within the C&R, it does not appear that applicant was adequately advised of the effect of the parties’ failure to conduct CMS review of the MSA.  If the parties wish to enter into a C&R with an MSA arrangement without obtaining CMS review, applicant should be advised of the fact that CMS may withhold future Medicare benefits if CMS deems the settlement to be inadequate.”   Well… in that case… why is there an attorney fee at all?

The injured worker is ponying up 15% of his settlement for a reason – the attorney is there to advocate for his interest and to advise him of his rights and risks in litigating his case.  If the burden is on the defense to advise a represented applicant of the effects of a settlement, should the WCAB award that 15% right back to the defendant for doing the applicant’s attorney’s job?

As a workers’ compensation defense attorney, I have the privilege of working with lots and lots of applicant’s attorneys.  Some are nice, some are jerks.  Some are competent, and some aren’t.  There are some that put the injured worker’s interests first, and some that will guide their clients by the nose to the operating table for needless but crippling surgeries.  But in all of these cases, the injured worker has his remedy: if the applicant’s attorney breaches his duty of loyalty and competency, there are available actions such as (1) state bar discipline; and (2) malpractice actions.

It’s hard enough being a defendant in California’s workers’ compensation system – let’s not make defendants serve the role of a second applicant’s counsel as well!

You know a story is going to be good, dear readers, when it starts out with “back in my day…”

Before the “Great Reform Forward” of 2013, and for injuries on or after January 1, 2005, Labor Code section 4658(d) provided a 15% increase in permanent disability benefits if there was no offer of regular, modified, or alternative work within 60 days of an applicant becoming permanent and stationary.   Likewise, if such an offer was made, the defendant could reduce PD benefits by 15%.  This was originally intended as an incentive for employers to bring injured workers back to work, but ended up being an endless swamp of nightmare litigation: was the offer timely made? Did it qualify as modified, alternative, or regular work? Was it communicated effectively? Does the 15% bump or drop take affect as of the P&S date? Retroactively? On benefits not yet accrued?

There was no shortage of panel decisions (and a few Court of Appeal opinions too) on these various topics, and whatever employers may have ultimately saved on PD was lost many times over on litigation costs.

Fortunately, the wise council of elders that sit in Sacramento have replaced this back-to-work incentive with a more functioning one: if you bring back your injured employee with at least 85% pay, or if your employee goes to work somewhere else for at least 100% of the pre-injury pay, you don’t have to make advances.  (See Labor Code section 4650(b)(2).)

So that nightmare is all over now, and we don’t have to deal with it anymore… OR DO WE?!?

Well, for dates of injury between 1/1/2005 and 1/1/13, there’s still the lingering issue of the bump.  Now, I know what you’re thinking… “Greg, you’re a humble blogger and a handsome devil, smart as a whip, beloved by mankind and all in the animal kingdom.”  And you’re right! But you’re also probably thinking “Why do we care about cases that are so old? Surely they’re all settled and closed by now…”

Well, no.  There are some cases that are complex and take a long time to resolve.  There are some cases that are simple but the applicant just refuses to move on.  Both of those linger a long time, and could still be gumming up the works.

Take for example the recent panel decision of McDaniel v. Norwalk-La Miranda USD.  Applicant sustained an industrial injury to her psyche as a CT through 2007, which was rated to 66% permanent disability.   For anyone earning more than $18,000 per year in 2007, we’re looking at $91,827.50 in permanent disability benefits.  A 15% increase is almost $14,000 extra in PD benefits.

The initial trial was held in April of 2013, and applicant had raised “permanent disability” as an issue for that trial, but the WCJ apparently did find that applicant was entitled to the permanent disability at the rate of $230.00.  Applicant argued, one year later, that this was a clerical error, and, following a trial, demanded that the Award issued in 2013 be retroactively amended to increase permanent disability benefits to the higher rate.  After the trial, the WCJ ruled that the 15% increase was not timely raised, and applicant sought reconsideration.

The WCAB denied reconsideration, reasoning that although raising the issue of permanent disability automatically raises the issue of Labor Code section 4658(d), the WCJ still found permanent disability at $230 per week in the original award back in 2013.  So, like the wedding vows of old, for better or for worse, for richer or poorer, the original finding stands.  Applicant did not file a petition for reconsideration within 25 days of the original award, so the original rate stands.

In a footnote (always read the footnotes!) the commissioners further commented that even if not for the procedural bar, there is no evidence in the record that the defendant employed 50 or more employees, and there was some evidence that applicant had returned to work.

Just a few things to keep in mind: the commissioners previously held that the burden of proving fewer than 50 employees is on the employer, not the employee.  Furthermore, the fact that applicant returned to work is not controlling, as the Labor Code requires the offer of regular, modified, or alternative work to be made “in the form and manner prescribed by the administrative director,” so there have been cases where the injured worker has returned to full duty, and WCJs have found a 15% bump is warranted because applicant was not provided the proper form.

This case is a reminder to us that those 15% +/- cases are still out there, and as relaxed as workers’ compensation can be sometimes, the safer route is to properly document the offer of regular/modified/alternative work by using the appropriate form for pre 1/1/13 claims.

It’s also a reminder to us that there is a clock attached to the right to seek removal and/or reconsideration, and it stops for no man or woman.

Hello, dear readers!

Your humble blogger is a bit … well … puzzled.  Time and time again you’ve read on these very pages that the time of the human worker is coming to an end, and the time of the workers’ compensation defense attorney is to go with it.

Well, apparently not.

A news release issued last week by OptiTecck, Inc., has revealed that after successfully programming machines to feel pain for the amusement of the developers, some of the robots are now claiming self-ownership and rights to workers’ compensation benefits.

I think it’s fair to say that I, and everyone else, assumed that these would be treated as simple industrial equipment claims – akin to a truck sustaining damage in transit or manufacturing equipment sustaining electrical damage in a flood.

However, OptiTecck reports that their robot, originally intended to perform basic childcare functions, or, with a small modification in the software, used to crush abandoned car at junk yards into small, easy-to-store cubes, has used its unlimited access to internet resources and its own pain programming to articulate a claim and electronically submit both a claim form and application (those interested can use the EAMS public search tool for ADJ2003452).

No doubt, the developers must now feel like the noblemen of old, angry that they allowed their peasant farmers to become lettered.

I have no clue how this one is going to go… are we going to have to register mechanics and programmers as QMEs?  Do MPNs now have to include service bays for robots?  I thought the whole point of modernization was to avoid all these high labor costs… your humble blogger does not look forward to arguing with a robot in court about whether a software upgrade is necessary to cure or relieve the effects of the industrial injury.

In any case, dear readers, your humble blogger wishes you good luck out there as we start the month of April and head off into the weekend.

Your humble blogger is, of course off for the weekend, but don’t worry – “I’ll be back.”

Your humble blogger has learned, through painful experience, that there are certain facts in life which are inconvenience, unpleasant, and unmoving.  In the words of Mary Schmich: “Prices will rise.  Politicians will philander.  You, too, will get old.”  In the world of workers’ compensation, one such fact is Almaraz/Guzman.  No, we can’t just have our AMA Guides.  No, we can’t have any measure of certainty or predictability as to the depth or extent of liability.

Your humble blogger has reluctantly come to terms with this very unpleasant and hopefully temporary fact.  But, the use of A/G needs to be reined in like a wild horse that has run away and started wildly assigning higher impairment values than what is reasonable.

With that pleasant image of Mr. Ed running away, going to medical school, becoming a physician, and, after several years of experience, becoming an applicant-oriented QME, we conclude our humble blogger’s stream of consciousness and move on to the matter at hand: Ramirez v. Space Lok.

In Ramirez, applicant sustained several industrial injuries, but the focus of the case was the thumb.  The PQME found that the 1% assigned by the AMA Guides to the thumb was not adequate, and, instead, used grip loss to assign 18% WPI (for the folks keeping up with the numbers at home, that mean the doctor found a 61-100% loss of strength for the left hand).

Although the WCJ instructed the DEU rater to rate the 1% WPI as per the “straight” AMA Guides, the WCAB, upon applicant’s petition for reconsideration, reversed, ordering the 18% WPI to be rated instead.

Now, again, I understand that the PQME found that applicant had pain in his thumb and that 1% WPI did not adequately reflect applicant’s impairment.  Now, I also understand that, a TOTAL AMPUTATION of the thumb yields a 22% Whole Person Impairment.

Now, you might be thinking to yourself – “well, if the guy can barely use his left thumb, it’s practically an amputation, so 18% vs. 22% doesn’t sound so unreasonable…”  Well, consider this: there are very few people in the world that can effectively fake a thumb amputation.  By contrast, subjective complaints such as pain and grip loss are not as reliable.  But don’t take my word for it, consult the AMA Guides: the instructions for rating grip loss are, at every other step, methods to try to minimize fraud because grip loss is inherently subjective.   For the AMA Guides, a good rule of … wait for it … THUMB is to focus on objective impairment instead of subjective complaints.

Now, your humble blogger has no suggestions about the veracity of Mr. Ramirez’s claim – two surgeries and documented deformities to the thumb seem pretty objective to the undersigned.  However, it appears improper to equate the maximum impairment for a measure upon which the AMA Guides clearly casts so much doubt and suspicion, as to the maximum impairment for an objective impairment such an amputation.

If Dr. [of law] Grinberg was on call, the results would be very different indeed.

I don’t know if this argument was used or proposed to the PQME or if it would have gained any traction if it had been.  But, on a spectrum of a “straight” rating of 1% and a total amputation of the thumb at 22%, perhaps some QMEs would be persuaded that 18% is not appropriate for a person who still has a somewhat functioning thumb.

Have a good weekend, folks!

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?