Doom and Gloom. Nobody likes hearing it, and most people don’t like speaking it. But, dearest readers, your humble blogger brings tidings more of ill than of good. The good news first: much to the surprise of anyone involved with the California workers’ compensation system, California is not the most expensive state for workers’ comp. It is not even the second most expensive state in the Union. The first prize goes to Alaska and the second to Connecticut, based on a recent study by the Oregon Department of Consumer and Business Services.
Now comes the bad news – California is ranked #3, up from a rank of #5 in 2010. Costs are plenty to go around in the state of Napa fruit and San Francisco nuts – there’s the litigation, the administrative costs, and the medical bills (don’t forget that little number).
Additionally, there is the underground economy – employers, in violation of the law, declining to insure their employees against industrial injuries and unfairly taking business away from their competitors that do.
California’s neighbors, Oregon, Nevada, and Arizona, all enjoy significantly lower rankings of 39, 46, and 37, respectively.
Despite the free status of this publication, your humble blogger remains a very self-interested workers’ compensation defense attorney, and has discovered, to his infinite sadness, that his bar won’t stock itself. California needs business to stay put and stop running for the state border with jobs and tax revenue in tow.
Some of the provisions of SB-863 will hopefully help with that, but, in the meantime, rejoicing in the fact that California is not Alaska or Connecticut, is a small victory indeed.
By now we’re all familiar with the going and coming rule, and also its exception of the “commercial traveler.” A commercial traveler is one that is on a trip for business purposes (think conferences, special projects, recruiting events) and is thereby taken away from hearth and home, sometimes for days at a time. When an employee is a commercial traveler (not to be confused with a Travelers commercial) it is generally considered that he or she is always on the clock, and therefore the going and coming rule does not apply.
Enter the case of Antonio Parvool v. Tony’s Food Service (coincidentally insured by Travelers). Mr. Parvool, the poor, unfortunate man, had the difficult job of going to Hawaii to assist in providing catering services to movie production crews. While he was not handing out whole-wheat extra-thin bagels to movie stars, he got to enjoy the surrounding area, including the employer-provided hotel and swimming pool.
Despite your humble blogger’s valiant efforts, workers’ compensation Judges in California are reluctant to grant change-of-venue motions to Hawaii – some nonsense about state jurisdiction. Rest assured, when your humble blogger is finally in charge, workers’ compensation trials will be held on the beaches of Hawaii in casual attire, and applicants will immediately realize there is more to life than hounding an employer over a paper cut. Objections will be made with Mai-Tai in hand, and all permanent disability indemnity will be paid in macadamia nuts. Someday…
Having spent too much time around action movie stars and their stunt doubles, applicant decided to dive head-first into the shallow portion of the hotel swimming pool, and sustained injuries to his neck, upper extremities, lower extremities, psyche, and digestive system. Defendant pointed out that applicant wasn’t on the clock when he took his dive, but applicant’s counsel responded by pointing out that the commercial traveler rule applied.
Persuaded by defendant’s arguments, the workers’ compensation Judge held that Labor Code section 3600(a)(9) rendered this injury non-industrial, as applicant’s injury arose “out of voluntary participation in any off-duty recreational, social, or athletic activity not constituting part of the employee’s work-related duties.”
Applicant petitioned the Workers’ Compensation Appeals Board for reconsideration and, having rubbed the lamp in just the right way, the applicant’s wish was granted. The WCAB reasoned that section 3600(a)(9) does not apply to the commercial traveler exception, but rather to routine injuries. So, if a hotel worker were to take a lunch break and go for a swim in the hotel pool, sustaining the exact same injury as the unfortunate Mr. Pavool, the injury would not be compensable under section 3600(a)(9).
In its reasoning, the WCAB points out that it is unreasonable to expect an employee to remain cooped up in a hotel room. Even this, we have seen, may not spare a traveling employee an injury.
So, if you’re sending your employee on a trip, see if you can find a hotel with a swimming pool that only has deep ends!
Private security firms often present a tricky issue for workers’ compensation matters. Injuries still occur, despite the rigorous training courses they provide:
And then comes the inevitable debate – who is to bear the cost of applicant’s (allegedly) industrial injury?
Be careful, dear readers, in opening the can of worms that is Robert Flores v. Garnett Protective Services & Security. There certainly are a few layers to this case.
Applicant Robert Flores was employed by Garnett, which, under the terms of its contract, provided security to Joseph’s Café. Joseph’s was a venue version of Batman, providing restaurant service by day and night club service by night. On occasion, Joseph’s Café would tip Flores and other security guards for a job well done, or offer them additional hours on a cash basis for extra events that were not on the regular schedule.
Garnett had trained Flores, and had the power to hire, fire, or direct his work. Joseph’s had no one of these powers.
Mr. Flores was called in to do an extra shift, as he is five or six times a year, and was on his way to Joseph’s Café when an unfortunate automobile collision resulted in a claimed industrial injury. Joseph’s Café had insurance, while Garnett had allowed its insurance to lapse, bringing in the California Insurance Guarantee Association. CIGA’s position was, to the surprise of absolutely no one, that Joseph’s was also Flores’ employer, and that the injury sustained by Flores was industrial as a “special mission” exception to the “going and coming rule.”
The Arbitrator agreed, reasoning that employment was established by showing that sometimes Joseph’s would hire Flores directly to cover special events that were outside the scope of Joseph’s contract with Garnett, and that the special event to which Flores was going on the night of his injury constituted a “special mission” because it was unusual.
Joseph’s insurer, Pennsylvania Manufacturer’s Association Insurance Company, petitioned the Workers’ Compensation Appeals Board for reconsideration, which was readily granted. The WCAB held that Flores was not an employee of Joseph’s because Joseph’s had no power to control the manner of his performance or to terminate his employment, only to terminate its contract with Garnett.
Furthermore, because Flores worked special events, like the one he was headed to at the time of his injury-causing-collision, this was not a special errand or mission but just a regular discharge of his duties (although required of him infrequently). Therefore, there was no industrial injury.
The dissenting opinion to the panel would have concurred with respect to employment, but not with respect to industrial injury. Deputy Commissioner Sullivan would have found an industrial injury, reasoning that the scheduled event Flores was to work met the definition of a “special mission,” which “occurs when the employee is invited or required by the employer to perform an activity that is within the course of the employment, but is unusual or extraordinary in relation to the employee’s routine duties.”
Bear in mind, dear readers, that your humble blogger’s very instincts militate against agreeing with any notion that any injury should be considered industrial. However, in this case, he is inclined to agree with Commissioner Sullivan’s opinion. Although applicant’s regular job included duties year-round, a special mission was involved five to six nights a year. Percentage-wise, the special events constituted 1.4-2% of the nights in the year, which should meet the definition of “unusual or extraordinary.”
But, there is cause for rejoicing all around, no? After all, Pennsylvania is off the hook because it is not an employer; CIGA is off the hook because no industrial injury occurred, and Garnett is not on the hook as much as it thought it was, because the injury is now Flores’ responsibility (here’s hoping Mr. Flores had auto insurance!)
The internet seems obsessed with the pending reforms included in Senate Bill 863, which received yet another amendment (its sixth) just yesterday. Coverage extends to all aspects of the bill, from the hired protestors outside of Senator Kevin de Leon’s office to speculation that Governor Brown is supporting the reform in exchange for some slack from the business community in getting Proposition 30 passed.
And the comments… oh the comments! Every online article is loaded with comment after comment of pure venom, with claims ranging from “the reform bill will prevent attorneys from representing injured workers” to critiques of a subsection which will require the euthanasia of injured workers with a predicted treatment cost over $75.36 (I made that one up, but it wouldn’t surprise me to see a commenter make a claim to that effect).
Your humble blogger is inclined to take a more relaxed approach. If these reforms become law, we can all review them and plan accordingly for the new claims that arise. If the reforms do not become law, then all of this frustration and furious typing away our respective hopes and fears will be for nothing.
While the world focuses on the real life imitating a certain television series, your humble blogger has another story for you, small in its significance but of considerable utility in its duplication.
A small claims court Judge has ordered Michele Marquez, a (former?) Hacienda La Puente Unified School District child-development teacher, to pay $5,000 in restitution to the district. Claiming an injury in September 2010, she was placed on disability leave but was discovered to be working another job by the school district’s investigator.
Bear in mind, dear readers, this occurred in May of 2012, but the internet is a large place, and your humble blogger has only discovered this occurrence now.
California Small Claims Court is available for claims under $5,000 for any entity (not a natural person). And, any number of claims under $2,500 may be filed in a calendar year. Perhaps this is a venue that should be considered by insurers and self-insured employers alike?
After all, temporary disability caps out at just over $1,000 per week, so each claim could possibly reflect each payment made through the applicant’s fraud.
Sometimes the local law enforcement is not interested in pursuing fraudster workers – they are occasionally focused on uninsured employers or, sometimes, violent crime (who would a thunk it?). That doesn’t meant that an employer or insurer can’t attempt to recover their losses through other means. (No, dear readers, this is not an invitation to hire thugs and inflict new impairments on your workers. Let’s stay inside the law, shall we?)
Has anyone out there tried this crazy idea? Has there been any luck enforcing 104 small-claims court judgments for every payment of temporary disability ever made?
In any case, WCDefenseCA sends out a big “Huzzah!” to Hacienda La Puente Unified School District in refusing to eat unreasonable costs in this case. Employers and Insurers state-wide would do well to follow suit.
The Insurance Commissioner is often bemoaning the “underground economy” and does not miss many opportunities to champion the arrest, prosecution, and, ultimately, the destruction of the businesses that find it simply unaffordable to purchase workers’ compensation insurance. How can a small business, barely making any money, continue to make payments in the face of increasing insurance costs?
Often enough, small business owners have barely any money to pay themselves, let alone their employees. More insurance increases means (1) fewer jobs; (2) fewer businesses in California; and (3) more business driven into the underground economy, costing California tax revenue and bloating the budget necessary for investigation, prosecution, and enforcement.
At the same time, this is a clear indicator that workers’ compensation expense is going up, even as participants see a decrease in services — workers’ compensation Judges are being overwhelmed with demands on their time, lien claimants are swarming like locusts, and the Medical Unit has so many requests that it fails to follow its own rules in issuing panels. Perhaps reforms are needed now, and lots of them!
As a classmate of your humble blogger once told his fellow visitor to the drunk tank, there on his third DUI, “it doesn’t look good.”
A Flash Report from the Workers’ Compensation Executive, the sister publication of the late, great Appeals Board Reporter, a personal favorite of your humble blogger and a publication deeply missed by the workers’ compensation community, tells us of Governor Brown’s proposal to reduce the budget deficit by reducing the hours of state employees.
Do you remember the furloughs? Do you remember having a handful of days during the month when the Boards’ doors were [physically] closed to justice and their lights [literally] turned off to the truth (and everything else)? Perhaps we can expect those days once more.
The proposal includes longer business hours and fewer business days, which doesn’t really help those of us working conventional hours of 9-5. Even the attorneys and adjusters that actually work longer hours usually reserve the hours before 9 and after 5 to catch up on solo work – reports, paperwork, research, preparing for hearings, and even checking our favorite daily workers’ compensation defense blogs (hint, hint).
What this proposal would provide is a substantial decrease in services (20%) for a tiny decrease in cost (5%). In other words, the Governor is proposing increasing costs to employers and insurers by 15%
Instead of hobbling the Board offices with a 20% reduction in productivity (let’s be honest here, how productive will you be working 12-hour days when you used to work 8-hour days, especially in those last four hours?) the Governor should be seeking to increase services in workers’ compensation, in quantity AND quality.
With Christine Baker and Rosa Moran enjoying recent confirmation, the efforts should be to make outcomes at the WCAB consistent, predictable, and in accordance with the law. The various Board venues should be open to provide speedy justice to employees and employers alike – and justice, mind you my dear readers, is not “fairness” or “generosity” with the employers’ capital and the insurers’ reserves. It is, instead, the correct application of the law without any hooks or crooks.
Instead, with a reduction in services, applicants’ attorney will now be able to threaten the defense community with overworked government employees, delays in closing files, and an overwhelming flood of cases allowing injustice to regularly slip through the growing cracks. You need a date for that MSC? Check back in six months.
Come on, Governor, cut the fat, not the muscle, and tighten the guts, not the belt!
Facebook. In days like these, we cannot afford to brush it off as just a venue for attention-seekers to document every meaningless aspect of their lives for the world to see. It is also a great resource for catching fraudsters and plugging workers’ compensation leaks.
There are sophisticated methods of using Facebook to catch injured workers exceeding their “physical limitations.” For example, you might catch a TTD applicant posting pictures of himself playing basketball, or that spinal injury case might be uploading video of herself doing tricks on a jet-ski. But sometimes the lies are even more glaring.
Kristi Denise Motty was convicted for workers’ compensation fraud following a two-day trial. For this case, the deputy district attorney stepped back from the trees and showed the jury the forest – it didn’t matter what Ms. Motty was posting on Facebook; she didn’t need to discuss mountain climbing or bear-wrestling.
While Motty was off work, she entered nearly 200 updates on her Facebook account, even though “it was impossible to write or type” and her pain from doing so was “excruciating.” Motty worked as an office technician at Corcoran’s California Substance Abuse Treatment.
Motty was also photographed loading textbooks into her car, attending nursing school classes, taking out the trash, texting on her phone, and carrying heavy grocery bags.
WCDefenseCA sends its congratulations to the Tulare County District Attorney’s Office for a job well done!
As a boy growing up in San Francisco, I would, on occasion, experience a relatively rare phenomenon – a cloudless night. On those nights, one could stare into the sky and ponder all of life’s imponderables. Does each chicken have its own personality? What happens to the paper that is cut by scissors? Do employers have to pay for spinal surgery when the second opinion physician has not submitted his report within the 45 days allotted by Labor Code section 4062?
Many years later, I still don’t have the answer to my questions. Not even after the split panel decision of Christine Krause v. State of California, which granted defendant’s petition for reconsideration and rescinded a workers’ compensation Judge’s order that the employer provide spinal surgery. WCDefenseCA sends its thanks to the kind and thoughtful reader who sent in this panel opinion! If you have an interesting panel opinion to share, please shoot it over to: gregory@grinberglawoffice.com.
The basic story is as follows – the primary treating physician requested authorization for spinal surgery, and the defense promptly submitted it to utilization review and received a timely non-certification letter. A second opinion doctor was assigned, less than two weeks later issued a report indicating that he was inclined to disagree with the treating physician’s recommendations, but wanted to see additional medical information.
The additional medical information, including an MRI and an evaluation of applicant, was still not enough. The physician wanted to do a new MRI because the old one “was of low quality and seemed to indicate ‘that there was something wrong at just about every level.’” Bear in mind, dear readers, that at the time of the evaluation, the second opinion physician had been appointed for 84 days. Thirty-one days later (a total of 115 days after the appointment) applicant’s attorney filed a declaration of readiness to proceed.
At the hearing, still without a report from the second opinion physician, the WCJ found that the report had been delayed through no fault of either of the parties, and that the defendant was obligated to provide the spinal surgery. In other words, “sorry about your luck, now fork over the money.”
The defendant, feeling somehow wronged by the relatively arbitrary assignment of medical expense, petitioned the Workers’ Compensation Appeals Board for reconsideration. And reconsideration the defense received!
The two-commissioner majority held that when, as in this case, the delay is through no fault of the defense, the defense cannot be made liable for the consequences of the physician’s slow response. Nor was the WCAB impressed with applicant’s “claimed concern about timeliness,” as the 45-day mark came and went seventy days before applicant filed the declaration of readiness.
The dissent, however, would have assigned all blame to the defense, reasoning that the burden is always and entirely on the defense to obtain timely reports, whether UR or second opinion.
As panel opinions are not binding precedent, split panel decisions are even less binding. But, it is still reassuring to know that, when we arrive at the various Board venues and empty our pockets for the metal detectors, employers and insurers are not expected to empty theirs as a matter of course. (Yes, San Francisco and Oakland, I’m shaking my head with disapproval at you!)
Apparently, they’re not handing out Order Granting Applicant’s Petition to Reopen, (or Ogapr, as your sentimental blogger’s great-grandma used to say) at some of the Board venues anymore.
In the case of Seb Baghoomian v. Workers’ Compensation Appeals Board (writ denied), applicant filed a Petition to Reopen for New and Further Disability and the workers’ compensation Judge, the WCAB, and the Court of Appeal were all having none of it.
Applicant was employed as a foreman in 2003 when he was attacked by four thugs while filling up gas on a work-related trip between Pasadena and San Francisco. He was unconscious for five minutes during the attack but eventually returned to work for about two months before he quit.
Applicant sought treatment for neck pain and left-sided numbness and weakness, also filing a claim for injury to the back, head, and psyche. The claim was settled by way of stipulation in December of 2007.
In July of 2011, applicant filed his petition. The matter went to trial but the WCJ denied applicant’s petition, reasoning that applicant had failed to carry his burden of proof as set out in Labor Code section 3202.5.
At trial, applicant presented several PR-2 reports from his primary treating physician, but offered no narrative reports or reports of any kind from the treating physician to actually support the theory that he had sustained new and further disability. The WCJ also rejected applicant’s efforts to allow him to develop the record, citing the Elias case mentioned on this blog some time ago.
Perhaps the burden of proof still falls on the applicant now and then, which is not something this cynical blogger can object to with any conviction.
Are you tired of the seemingly powerless life of a workers’ compensation defense attorney? Do you grow weary of pitting workers’ compensation Judges against commissioners, and commissioners against Court of Appeal Judges in a desperate effort to secure some tiny sliver of justice for you client? Perhaps it’s time you took up the gavel yourself and stemmed the flow of blood being drained from the veins of California’s employers.
No, I’m not suggesting we form some sort of vigilante workers’ compensation Board or somehow privatize the Workers’ Compensation Appeals Board (oh, if only!). As a matter of fact, after discovering a surplus in the pension budget California is looking to hire some more judges. But you better hurry – the deadline is, in a gentle nod to that secret spot in our hearts that is home to the more romantic things in life, February 14th.
The venues are San Jose, Marina Del Ray, and Long Beach. Benefits include the use of two flat-screen monitors in every courtroom, the endless droning of lien claimants, the threat of removal or reconsideration at every step, and semi-celebrity status when you suffer occasional ridicule on this blog.
But, do not get your hopes ups – with a 1/31 post date and a 2/14 deadline, I’m guessing there are already some candidates in mind; but what does a private-sector-dweller like your speculative blogger know?
The content of this web log is for information purposes only and should not be construed as legal advice. No attorney-client relationship is formed by this site. If you would like to speak to a workers’ compensation defense attorney, please contact Gregory Grinberg at 888-226-3400.